dissenting:
In this appeal from judgment in a complex, medical malpractice case, an able trial judge inadvertently gave incorrect jury instructions against a cardiovascular surgeon whose operative assistance and post operative care were unable to prevent very unfortunate consequences of a negligently performed hysterectomy. Because the court’s instructions were incorrect and deprived the cardiovascular surgeon of a fair trial, I must respectfully dissent from the *59majority’s decision to affirm judgments against the gynecologist and the cardiovascular surgeon.
During performance of a hysterectomy by the appellant, Leo R. Kairys, M.D., on the person of appellee, Maria Hoeke, the patient began to bleed excessively. Dr. Kairys summoned assistance, and Dr. Cushing, a cardiovascular surgeon, responded. In order to stop the bleeding, the common iliac artery and the common iliac vein were repaired, and the internal iliac artery, also known as the hypogastric artery, was ligated. There was a significant factual dispute concerning the external iliac artery, which is a major source of blood to the right leg. Dr. Cushing contended and Dr. Kairys denied that it had a gynecological clamp on it and was contused at the time Dr. Cushing had been summoned. Following surgery, appellee was placed in an intensive care unit. Amputation of the leg became necessary at a subsequent date, however, because of diminished blood supply. There was evidence, if believed, that the amputation of the leg had been made necessary by a complete occlusion of the right, common iliac artery occurring during surgery and not timely diagnosed.
There was a conflict in the testimony concerning the monitoring of appellee’s condition post operatively. There was also a dispute regarding the time when and the symptoms by which the diminished blood supply should have been diagnosed. Five days after appellee had been placed in intensive care, Dr. Cushing commenced a planned vacation. There was evidence, also disputed, that his associate, Dr. Hassan Jamil Tabbarah, had not been alerted to appellee’s condition and, in any event, did not examine appellee until after irreversible damage had occurred.
Appellee also sustained a loss of her right kidney. The majority incorrectly states that there was no evidence of post operative negligence regarding the loss of the kidney. In fact, appellee contended throughout the trial, as a theory in support of recovery, that the failure to employ adequate diagnostic and therapeutic measures post operatively had been a direct cause of the loss of both the leg and the *60kidney. It was uncontested at trial, however, that an original insult to the ureter and kidney had occurred during the operative procedure. Both Kairys and appellee’s expert agreed that this damage could have been repaired by the seasonable insertion of a catheter through the injured ureter.
There was additional dispute about which physician had primary responsibility for appellee’s post operative care. Appellee contended that Dr. Kairys’ negligence during the operative procedure in injuring the right common iliac artery and the ureter, as well as his negligence post operatively, in failing to diagnose and treat the injuries in a timely fashion, had caused the loss of Mrs. Hoeke’s right leg and right kidney. Appellee also contended that Dr. Cushing’s negligent post operative care of Mrs. Hoeke in not diagnosing and treating the occluded artery and damaged ureter had been a substantial factor in causing the loss of both the right kidney and the right leg.
With respect to the operative and post operative care intended to correct the excessive bleeding which had occurred during the hysterectomy, the trial court charged the jury, in part, as follows:
However, when a defendant physician negligently fails to act, or negligently delays in employing indicated diagnostic or therapeutic measures, and his negligence proximately causes injuries to his patient, the plaintiff does not have to prove to a certainty that proper care would have, as a medical fact, prevented the injuries in question. If a defendant physician's negligent action or inaction has effectively terminated his patient's chances of avoiding injuries, he may not raise conjectures as to the measure of the chances that he has put beyond the possibility of realization. If there was any substantial possibility of avoiding injuries and the defendant has destroyed that possibility, he is liable to the plaintiff. (Emphasis supplied.)
The foregoing portion of the charge was taken verbatim from the Pennsylvania Suggested Standard Civil Jury In*61structions, Pa. SSJI (Civ.) 10.03(b) (PBI, 1981), and includes, as the majority notes, language from Hicks v. United States, 368 F.2d 626 (4th Cir. 1966),1 which our Supreme Court quoted with approval in Hamil v. Bashline, 481 Pa. 256, 392 A.2d 1280 (1978) (Bashline III). However, in Bashline III, the issue before the court was the degree of certainty of expert medical testimony required to establish a prima facie case of medical malpractice under Section 323(a) of the Restatement (Second) of Torts.2 Having quoted from Hicks v. United States, supra, the Hamil court stated, “We agree with this statement of the law and hold that once a plaintiff has demonstrated that defendant’s acts or omissions, in a situation to which Section 323(a) applies, have increased the risk of harm to another, such evidence furnishes a basis for the fact-finder to go further and find that such increased risk was in turn a substantial factor in bringing about the resultant harm; the necessary proximate cause will have been made out if the jury sees fit to find cause in fact.” Id., 481 Pa. at 272, 392 A.2d at 1288 (emphasis supplied) (footnote omitted).
The jury instructions in the instant case suggested that once the jury had found that Dr. Cushing’s conduct had terminated the chances of avoiding further injury to the patient, his liability was conclusively established. He could not then be heard to contend that alternate medical or *62surgical procedures would have had little or no chance for saving the patient’s leg and/or kidney under the conditions found when he was summoned to assist. This is not the law.
In Jones v. Montefiore Hospital, 494 Pa. 410, 431 A.2d 920 (1981), the plaintiff had requested the following instruction: “A person who undertakes to render services to another is liable for physical harm resulting from his failure to exercise reasonable care, if that failure increased the risk of harm.” Id., 494 Pa. at 415, 431 A.2d at 923. The Supreme Court held:
Although appellants’ submission generally paraphrased Section 323(a), the specific wording requested would unduly restrict the discretion of the jury, since it instructs that once a defendant’s negligence is found to have increased the risk of harm suffered by a plaintiff, liability must follow. This misconstrues the function of the jury as contemplated by Section 323(a). Once the medical testimony has demonstrated, with a reasonable degree of medical certainty, that a defendant’s conduct increased the risk that the harm sustained by a plaintiff would occur, even though it has not demonstrated that such conduct alone caused that harm, Section 323(a) requires the jury to decide whether or not “to go further and find that such increased risk was in turn a substantial factor in bringing about the resultant harm.” Hamil v. Bashline, 481 Pa. at 272, 392 A.2d at 1288.
Jones v. Montefiore Hospital, supra, 494 Pa. at 417 n.8, 431 A.2d at 924 n.8 (emphasis omitted and supplied).
The jury in the instant case was instructed that a defendant physician “may not raise conjectures as to the measure of the chances that he has put beyond the possibility of realization.” While a plaintiff is entitled to submit a case to the jury if he or she can establish a prima facie case of malpractice which increased the risk of injury, a defendant is not precluded from presenting evidence that the defendant’s chances for avoiding harm were non-existent even in the absence of the alleged negligence. After a plaintiff has established “. . . ‘that it is more likely than not that the conduct of the defendant was a substantial factor in bring*63ing about the harm.’ . . . [A] defendant may present expert testimony to the opposite effect, i.e., the unlikelihood of [avoiding injury] even had the defendant exercised due care; as always, resolution of conflicting testimony is for the jury.” Hamil v. Bashline, supra, 481 Pa. at 272 n.9, 392 A.2d at 1288 n.9, quoting Comment (a) to Section 433 B of the Restatement (Second) of Torts (emphasis supplied).
The challenged portion of the trial court’s instructions to the jury was taken verbatim from Hicks v. United States, supra, as quoted in Hamil v. Bashline, supra. However, in neither instance was the court discussing jury instructions. “Not every statement of the law even if relevant to the issues should, or even properly may, be read to a jury. Statements in opinions are often couched in argumentative language and may be formulated in words expressive of policy. As such they may mislead a jury. It is better to charge a jury in terms of legal standards and rules.” Slavish v. Ratajczak, 277 Pa.Super. 272, 277, 419 A.2d 767, 770 (1980).
The effect of the trial judge’s charge was to instruct the jury to disregard Cushing’s evidence pertaining to causation as speculative. If the members of the jury found that Cushing had been negligent in failing to follow post operatively the condition of the patient and thereafter followed the court’s instructions, they would disregard as conjecture Cushing’s evidence on the issue of causation and would not resolve the conflicting evidence on that issue. “In determining whether fundamentally erroneous instructions require the grant of a new trial, whether such instructions did or did not bring about the complained of verdict is not the question. If it appears that such instructions might have been responsible for the verdict, a new trial is mandatory: Riesberg v. Pittsburgh & Lake Erie R.R., 407 Pa. 434, 180 A.2d 575 (1962).” Jones v. Montefiore Hospital, supra, 494 Pa. at 420, 431 A.2d at 925, quoting Vaughn v. Philadelphia Transportation Co., 417 Pa. 464, 468, 209 A.2d 279, 282 (1965) (emphasis in original).
From the foregoing review of the law and the trial court’s erroneous jury instructions, I am forced to conclude that Dr. *64Cushing is entitled to a new trial. The more difficult question is whether a new trial should be a general new trial or should include only Dr. Cushing. Dr. Kairys contends that Dr. Cushing was primarily responsible for appellee’s post operative care but agrees that the trial court’s instructions concerning causation were erroneous. The appellees, which include Maria Hoeke, who was awarded damages, and also Mercy Hospital and Dr. Tabbarah who were exonerated by the jury, contend that they have won the verdict and should not be submitted to the rigors and expense of another trial. The issue of causation was so fundamental, however, and so closely contested between the appellee and Drs. Cushing and Kairys that the erroneous instruction thereon can only be viewed as permeating the entire deliberative process. Therefore, I would grant a new trial involving these parties. See: Smith v. Flannery, 383 Pa. 526, 119 A.2d 224 (1956); Mains v. Moore, 189 Pa.Super. 430, 150 A.2d 549 (1959).
As to Mercy Hospital and Dr. Tabbarah, however, no error in the charge was alleged by any party. The jury’s verdict, based upon evidence presented without objection, absolved them from any negligence. Under these circumstances, I perceive no proper reason for subjecting them to a new trial. See: Stokan v. Turnbull, 480 Pa. 71, 389 A.2d 90 (1978).
For these reasons, I respectfully dissent.
. In Hicks v. United States, supra, non-jury trial, the plaintiffs introduced expert testimony, not contradicted by defense experts, that if the decedent had been operated upon, she would have survived. The trial court, however, dismissed the complaint following testimony. On appeal, the government argued unsuccessfully that the trial court was correct, as it was mere speculation to assume that the operation would have been successfully performed.
. Section 323(a) of the Restatement (Second) of Torts is as follows: § 323. Negligent Performance of Undertaking to Render Services One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other’s person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if
(a) his failure to exercise such care increases the risk of such harm