Pennsylvania Superior Court Clarifies Legal Standard for Jury Instruction on Increased Risk of Harm in Medical Malpractice Cases

In this appeal, the Superior Court of Pennsylvania clarified in an important unpublished opinion, the requirements for plaintiffs to obtain a jury instruction on increased risk of harm in medical malpractice actions.

At trial, the plaintiff presented expert testimony from a maternal fetal medicine expert that the attending physicians deviated from the standard of care by delaying C-section delivery after monitoring fetal heart rate decelerations. The plaintiff also elicited testimony from a pediatric neurologist that minor-plaintiff was at risk for stroke based on diminished fetal heart tracings and blood flow. Importantly, the plaintiff failed to present any expert testimony that the defendants’ alleged failure to timely initiate a C-section delivery caused or increased the risk of harm of minor-plaintiff’s injury. Prior to the jury charge, the court denied the plaintiff’s request for an instruction on increased risk of harm. Ultimately, the jury found that the defendants’ conduct was not the factual cause of minor-plaintiff’s harm and awarded no damages. The plaintiff appealed, asserting that the trial court’s decision to not charge the jury on increased risk of harm was a clear abuse of discretion and error of law.

The Pennsylvania Suggested Standard Civil Jury Instructions provide for a “relaxed” causation charge under specific circumstances. This instruction on increased risk of harm provides, in relevant part, as follows:

Where the plaintiff presents expert testimony that the negligent act or failure to act or delay on the part of the defendant has increased the risk of harm to the plaintiff, this testimony, if found credible, provides a sufficient basis from which you may find that the negligence was a factual cause of the injuries sustained.

Pa. SSJI (Civ.) 14.20.

On appeal, the Superior Court affirmed the trial court’s decision denying plaintiff’s request for an instruction on increased risk of harm. The court held that in order for plaintiffs to be entitled to the jury charge, they must provide expert testimony, to a reasonable degree of medical certainty, that the acts and omissions complained of could cause the type of harm suffered. Since the plaintiff failed to present expert testimony that the defendants’ alleged failure to timely initiate C-section delivery caused or increased the risk of harm of the brain injury suffered by minor-plaintiff, the plaintiff was not entitled to the increased risk of harm instruction at trial.

The Superior Court’s decision is helpful for healthcare defendants, as it clarifies the legal standard necessary for plaintiffs to demonstrate a basis for instructing the jury on increased risk of harm, which has been diluted over time. Litigants in medical malpractice cases should cautiously analyze each element of expert testimony at trial to ensure this standard has been satisfied when it is anticipated the plaintiff will request an instruction on increased risk of harm.