In the case of Smith v. Timar, Nos. 1942 EDA 2024 and 1973 EDA 2024 (Pa. Super. Sept. 9, 2026 Dubow, J., Sullivan, J., and Stabile, J.) (Op. by Stabile, J.) (dissenting Op. by Sullivan, J.), the Pennsylvania Superior Court addressed situations as to when an “increased risk of harm” jury instruction may be applicable where causation is disputed in certain professional negligence causes of action.
According to the Opinion, this matter involved a Plaintiff who sought out treatment from a Defendant chiropractor for lower back pain. The Plaintiff alleged that the chiropractor performed an allegedly unnecessary cervical spine manipulation that allegedly resulted in an arterial dissection, or a tear in the artery within the spinal column that supplies blood to the brain. The Plaintiff further alleged that that injury resulted in a stroke that left the Plaintiff with permanent impairments.
At trial, the Plaintiff presented a medical expert who offered an opinion that the Defendant chiropractor’s manipulation of the Plaintiff’s neck resulted in an increase risk of a vertebral artery dissection. Despite the provision of this expert testimony offered by the Plaintiff, the trial court refused to give an increased risk of harm jury instruction under a belief that such an instruction would confuse the jury.
Thereafter, the jury returned a verdict finding negligence against the Defendant chiropractor but not causation.
On appeal, Judge Stabile reviewed the Pennsylvania law regarding the increased risk of harm jury instruction. Based upon that review of the law, Judge Stabile concluded that the trial court erred in refusing to give the requested "increased risk of harm" jury instruction.
In so ruling, the court noted that the "increased risk of harm" jury instruction “is necessary to avoid imposing on Plaintiffs a potentially impossible burden of proven causation where the Defendants misfeasance is one of several factors that might have contributed to the Plaintiff’s injury.”
The Superior Court ruled that the "increased risk of harm" jury instruction should have been provided so that the Defendant could not use other potential contributing factors as a shield behind which the Defendants may be protected from answering for their alleged negligence.
The court on appeal noted that, where the Plaintiff had produced sufficient evidence to warrant the provision of such a jury instruction to the jury, and where the absence of that "increased risk of harm" jury instruction could not be said to have been a harmless error, the case was remanded to the trial court for a new trial limited on the issues of causation and damages.
Anyone wishing to review a copy of this decision may click this LINK.
Source: The Pa. Super. Blog by Jon Bruno of Bruno Litigation, LLC in Pittsburgh, PA.
At trial, the Plaintiff presented a medical expert who offered an opinion that the Defendant chiropractor’s manipulation of the Plaintiff’s neck resulted in an increase risk of a vertebral artery dissection. Despite the provision of this expert testimony offered by the Plaintiff, the trial court refused to give an increased risk of harm jury instruction under a belief that such an instruction would confuse the jury.
Thereafter, the jury returned a verdict finding negligence against the Defendant chiropractor but not causation.
On appeal, Judge Stabile reviewed the Pennsylvania law regarding the increased risk of harm jury instruction. Based upon that review of the law, Judge Stabile concluded that the trial court erred in refusing to give the requested "increased risk of harm" jury instruction.
In so ruling, the court noted that the "increased risk of harm" jury instruction “is necessary to avoid imposing on Plaintiffs a potentially impossible burden of proven causation where the Defendants misfeasance is one of several factors that might have contributed to the Plaintiff’s injury.”
The Superior Court ruled that the "increased risk of harm" jury instruction should have been provided so that the Defendant could not use other potential contributing factors as a shield behind which the Defendants may be protected from answering for their alleged negligence.
The court on appeal noted that, where the Plaintiff had produced sufficient evidence to warrant the provision of such a jury instruction to the jury, and where the absence of that "increased risk of harm" jury instruction could not be said to have been a harmless error, the case was remanded to the trial court for a new trial limited on the issues of causation and damages.
Anyone wishing to review a copy of this decision may click this LINK.
Source: The Pa. Super. Blog by Jon Bruno of Bruno Litigation, LLC in Pittsburgh, PA.
Source of image: Photo by kaboompic on www.pexels.com.
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