Increased Risk of Harm • Direct Causation

Klein v. Aronchick, PICS Case No. 14-0019 (Pa. Super. Jan. 7, 2014) Elliott, J. (35 pages).

Trial court committed reversible error by precluding plaintiff from pursuing increased risk of harm theory. Reversed.

Klein suffered chronic constipation for over 30 years. Aronchick, a gastroenterologist, prescribed Visicol, a pill form of sodium phosphate, for long-term treatment. This was an off-label use. Visicol was approved as a colon cleanser in preparation for a colonoscopy.

Klein took Visicol as prescribed every day for approximately five years. She suffered permanent, progressive kidney disease.

At trial Klein’s expert, Dr. Denker, testified that her kidney failure was caused by long-term ingestion of Visicol as prescribed by Dr. Aronchick. However, the court would not permit Denker to testify that Aronchick’s negligent over-prescription of Viscol and failure to monitor Klein over a period of years increased the risk that she would suffer permanent kidney damage.

A jury found Aronchick negligent; however, it determined that his negligence was not the factual cause of Klein’s injuries.

On appeal, Klein argued that she was entitled at trial to argue both direct causation and increased risk, and that the trial court erred in refusing her proffered testimony. Aronchick argued that Klein was not entitled to argue both direct causation and increased risk of harm, which were mutually exclusive theories of recovery. The Superior Court reversed.

Direct causation and increased risk of harm are not mutually exclusive, but simply alternative theories of recovery which, depending on the facts and the expert testimony, may both apply in a given case. A plaintiff is entitled to an instruction on increased risk where there is competent medical testimony that a defendant’s conduct at least increased the risk that the harm sustained by plaintiff would occur.

The trial court specifically precluded Klein from pursuing an increased risk of harm theory because Denker’s report only addressed direct causation. However, a fair reading of his entire report demonstrates that he believed to a medical degree of certainty that Klein’s severe and irreversible chronic renal failure was consistent with phosphate nephropathy caused by the Visicol treatment; or in the alternative, Aronchick’s over-prescription of Visicol for chronic constipation without any patient monitoring at least increased the risk that Klein would develop chronic renal disease. As such, Denker should have been permitted to testify regarding increased risk of harm. The trial court’s ruling that Klein could not elicit any testimony from Denker regarding increased risk of harm was reversible error.