Lageman, E. v. Zepp, J., IV, D.O. ( 2020 )

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2020 PA Super 172ELIZABETH H. LAGEMAN, BY AND IN THE SUPERIOR COURT
THROUGH HER POWER OF ATTORNEY OF PENNSYLVANIA
AND DAUGHTER, ADRIENNE LAGEMAN
Appellant
v.
JOHN ZEPP, IV, D.O.; ANESTHESIA
ASSOCIATES OF YORK, PA, INC.; YORK
HOSPITAL; AND WELLSPAN HEALTH,
T/D/B/A YORK HOSPITAL
Appellee No. 756 MDA 2018
Appeal from the Judgment Entered May 10, 2018
In the Court of Common Pleas of York County
Civil Division at No: 2014-SU-000846-82
BEFORE: BOWES, OLSON, and STABILE, JJ.
DISSENTING OPINION BY STABILE, J.: FILED JULY 20, 2020
The Majority concludes that a new trial is warranted because the trial
court abused its discretion by refusing to deliver a res ipsa loquitur instruction
and by permitting the defense to use a demonstrative mannequin during trial.
A res ipsa loquitur instruction properly was denied where Appellant presented
direct evidence of negligence thereby obviating the need to rely upon the aid
of an inference of negligence provided by a res ipsa loquitur instruction. The
instruction was also properly denied where the record does not support a
finding that any expert unequivocally testified Appellant’s harm does not
ordinarily occur in the absence of negligence. I further believe the trial court
did not abuse its discretion by permitting the defense use of a demonstrative
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mannequin where it was the trial court’s judgment such use aided the jury in
understanding the medical issue in this case. I respectfully dissent.
As this Court explained in D’Ardenne v. Strawbridge & Clothier,
Inc., 712 A.2d 318 (Pa. Super. 1998), “Where there is no direct evidence
to show cause of the injury, and the circumstantial evidence indicates that the
negligence of the defendant is the most plausible explanation for the injury,
the [res ipsa loquitur] doctrine applies.” Id. at 321 (quoting Prosser & Keeton
on the Law of Torts § 40, at 257 (5th ed. 1984) (emphasis added, additional
citation omitted)). Because this was a case with direct evidence of Dr. Zepp’s
negligence, I find this case did not warrant a res ipsa loquitur instruction.
In Toogood v. Rogal, 824 A.2d 1140 (Pa. 2003) (plurality), Justice
Newman explained:
Res ipsa loquitur is neither a doctrine of substantive law nor a
theory of recovery; rather, it is a rule of circumstantial
evidence. Nor is this doctrine to be employed simply because
the treatment caused injury or failed to yield the expected result.
Courts have continually stated that an injury alone is insufficient
to prove negligence in medical malpractice cases.
The doctrine of res ipsa loquitur allows plaintiffs, without direct
evidence of the elements of negligence, to present their case
to the jury based on an inference of negligence. The key to the
doctrine is that a sufficient fund of common knowledge exists
within a jury of laypersons to justify raising the inference.
Instead of directly proving the elements of ordinary
negligence, the plaintiff provides evidence of facts and
circumstances surrounding his injury that make the
inference of the defendant’s negligence reasonable. “The
gist of res ipsa loquitur . . . is the inference, or process of
reasoning by which the conclusion is reached. This must be based
upon the evidence given, together with a sufficient background of
human experience to justify the conclusion. It is not enough
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that plaintiff’s counsel can suggest a possibility of
negligence.” Prosser & Keeton, The Law of Torts § 39, p. 243
(5th ed. 1995). This theory relieves the plaintiff of having
to prove causation directly.
Id. at 1146 (emphasis added).
Justice Newman also provided historical perspective on the application
of res ipsa loquitur in Pennsylvania, noting § 328D of the Restatement
(Second) of Torts first was adopted in Gilbert v. Korvette, Inc., 327 A.2d
94 (Pa. 1974), and extended to medical malpractice cases in Jones v.
Harrisburg Polyclinic Hosp., 437 A.2d 1134 (Pa. 1981), where both parties
presented expert testimony, but the plaintiff’s expert causation testimony was
deficient. Toogood, 824 A.2d at 1147-48. Concluding that expert medical
testimony should no longer be a requirement in all medical malpractice cases,
the Jones Court announced:
Section 328D is fashioned to reach all instances where negligence
may properly be inferred and its applicability is not necessarily
precluded because the negligence relates to a medical procedure.
The section establishes criteria for determining circumstances
wherein the evidentiary rule of res ipsa loquitur may become
operative in providing the inference of negligence. It is premised
upon a recognition that certain factual situations demand such an
inference.
***
[S]ection 328D provides two avenues to avoid the production
of direct medical evidence of the facts establishing liability:
one being the reliance upon common lay knowledge that the
event would not have occurred without negligence, and the
second, the reliance upon [expert] medical knowledge that the
event would not have occurred without negligence.
Jones, 437 A.2d at 1138 (emphasis added).
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The evidentiary rule of res ipsa loquitur, which permits an inference of
negligence where direct evidence is not capable of being produced, is justified
upon the rationale that certain cases demand such an inference because some
events simply do not occur in the absence of negligence. Where, however, a
plaintiff is capable of introducing direct evidence of negligence and resulting
harm, there is no need to invoke an inference to bridge the gap between the
harm suffered and the antecedent negligent act. To do so allows a plaintiff to
present direct evidence of negligence and then have the court instruct a jury
that the direct evidence is entitled to an inference of negligence. Doing so
impermissibly bolsters a plaintiff’s direct proof and imparts an imprimatur of
liability by the court to a direct case of proof. It also is inconsistent in my
view to both instruct a jury to weigh a plaintiff’s direct proof of negligence and
instruct them negligence may be inferred because the event ordinarily does
not occur in the absence of negligence. In essence, on the one hand, a jury
is told to consider the direct evidence, but then on the other hand, is told that
because there is no direct evidence of negligence they may employ an
inference of negligence that may be rebutted by the defense. Simply stated,
the aid offered by a res ipsa loquitur instruction to infer negligence when direct
proof is not available—but when the circumstances of a case compel such an
inference, is simply not necessary when a plaintiff is capable of identifying and
producing direct evidence of negligence, such as in the instant case.
Moreover, expanding res ipsa loquitur to cases like that presently before us
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would virtually guarantee precedent that the charge may be given in every
malpractice case despite direct proof of negligence. The purpose of the rule
would be completely lost in translation.
I believe my review of cases comports with the application of res ispa
loquitur in this Commonwealth as applied in medical malpractice cases.
The Jones Court recognized two such instances where the inference
allowed by res ipsa loquitur is permitted. This first “avenue” is traveled in
cases that rely on common lay knowledge. For example, Fessenden v.
Robert Packer Hosp., 97 A.3d 1225 (Pa. Super. 2014), a “proverbial ‘sponge
left behind’ case,” reflects the prototypical application of res ipsa loquitur. Id.at 1233 (citing Jones, 437 A.2d at 1138 n. 11) (“[T]here are other kinds of
medical malpractice, as where a sponge is left in the plaintiff’s abdomen after
an operation, where no expert is needed to tell the jury that such events do
not usually occur in the absence of negligence.”); Robinson v. Wirts, 127
A.2d 706, 710 (Pa. 1956) (stating that no expert testimony is necessary in
“cases where . . . a gauze pad is left in the body of a patient following an
operation”)). As we explained in Fessenden:
A narrow exception to the requirement that medical malpractice
claims be supported by expert testimony applies in instances of
obvious negligence, i.e., circumstances in which the medical and
factual issues presented are such that a lay juror could recognize
negligence just as well as any expert. Jones[, 437 A.2d at 1137].
In such instances, the doctrine of res ipsa loquitur allows a fact-
finder to infer from the circumstances surrounding the injury that
the harm suffered was caused by the negligence of the defendant.
Fessenden, 97 A.3d at 1230.
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Although there was no item left behind in Quinby v. Plumsteadville
Family Practice, Inc., 907 A.2d 1061 (Pa. 2006), a res ipsa instruction was
similarly warranted. In Quinby, a paraplegic was left unaccompanied and
unrestrained on an examination table in a medical office following removal of
a lesion from his left temple. He fell from the table and sustained injuries that
purportedly resulted in his death. There was no explanation for Quinby’s fall
beyond the medical practice’s negligence. Because “the fall is not the type of
event that occurs in the absence of negligence, and [] there is no explanation
other than [the practice’s] negligence for the fall,” the trial court should have
charged the jury on the doctrine of res ipsa loquitur. Quinby, 907 A.2d at
1073.
As the Court observed in Quinby,
Upon close analysis, it is apparent that res ipsa loquitur provides
no assistance to a plaintiff’s obligation to demonstrate a
defendant’s duty, that a breach of that duty was a substantial
factor in causing plaintiff harm, or that such harm resulted in
actual damages. However, res ipsa loquitur does aid a
plaintiff in proving a breach of duty. While res ipsa loquitur is
useful in this limited regard, case law universally refers to res ipsa
loquitur as raising an inference of “negligence” rather than an
inference of “breach of duty.”
Id. at 1071 n.15 (emphasis added). While the Court indicated it would “abide
by this typical nomenclature and refer to res ipsa loquitur as ‘raising an
inference of negligence[,]’” its comment is instructive in recognizing which
element of a prima facie case of negligence is at issue when examining
application of the doctrine.
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With respect to the second “avenue” referenced in Jones, that avenue
is available in certain cases that involve more complex factual scenarios and
require expert testimony. Again, absent direct evidence of negligence, res
ipsa permits an inference of negligence if the evidence, coupled with “sufficient
background of experience,” justifies the conclusion. See Prosser & Keeton,
The Law of Torts § 39, p. 243 (5th ed. 1995). The sponge left in the abdomen
is the prototypical example. However, in a case involving complex medical
issues that are not within the jury’s common fund of knowledge, the plaintiff
can attempt to establish a res ipsa case through expert testimony indicating,
inter alia, that the event at issue would not ordinarily occur in the absence of
negligence. Stated differently, if a plaintiff does not have expert testimony to
establish a prima facie case of negligence based on direct evidence, then—
and only then—does the question arise as to whether res ipsa should apply.
In the absence of direct evidence of negligence, the jury can then weigh the
plaintiff’s “indirect,” i.e., circumstantial, evidence of negligence in conjunction
with the expert’s opinion that the event would not occur in the absence of
negligence. The jury would then be in a position to use the res ipsa inference
of negligence when deciding whether the plaintiff has proven a case by a
preponderance of the evidence, assuming the remaining two elements of
§ 328D(1) are similarly satisfied. However, that inference should be available
only in cases where there is no direct evidence of negligence. Allowing it in
instances when the plaintiff has established a prima facie case of negligence
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supported by direct evidence would, as noted above, virtually guarantee
precedent that the charge may be given in every malpractice case despite
direct proof of negligence.
Our Supreme Court has considered the application of res ipsa loquitur
in complex medical cases that are outside a jury’s common fund of knowledge.
For example, in Jones, the plaintiff experienced suprascapular nerve palsy,
i.e., intense pain in her neck, shoulder and arm, following a gynecological
procedure. Jones filed suit claiming negligence and a jury found her surgeon
negligent based on res ipsa loquitur. The trial court denied the surgeon’s post-
trial motions. On appeal, this Court determined the case warranted a res ipsa
loquitur analysis, despite plaintiff’s inability to “aver the precise conduct of the
named defendants because she was unconscious during treatment, although
the circumstantial evidence points toward the negligence of one of more of
the parties sued.” Jones v. Harrisburg Polyclinic Hosp., 410 A.2d 303,
306 (Pa. Super. 1979), rev’d, Jones, 437 A.2d 1134 (Pa. 1981). This Court
nevertheless reversed and granted the surgeon a new trial, finding a res ipsa
loquitur instruction was not warranted because the plaintiff had not eliminated
other responsible causes as required under § 328D(1)(b).
The Supreme Court reversed our decision, concluding the plaintiff was
entitled to an inference of negligence in light of uncontradicted expert
testimony that surprascapular nerve palsy does not ordinarily occur during
gynecological procedures in the absence of negligence. Jones, 437 A.2d at
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1139. The Supreme Court also rejected this Court’s analysis of § 328D(1)(b),
stating the subsection does not preclude joint responsibility. Therefore, it is
not necessary for a plaintiff to “eliminate the ‘responsible cause’ of one in
order for the requirements of section 328D(1)(b) to be met as to the other.”
Jones, 437 A.2d at 1140.
As reflected in the above-quoted language from this Court’s opinion,
there is no suggestion Jones presented any direct, rather than circumstantial,
evidence of negligence on the part of the surgeon. The lack of direct evidence
is further corroborated by the Supreme Court’s statement that “[t]he theories
of liability asserted against [the surgeon] were those of lack of informed
consent and negligence, through the application of the rule of res ipsa loquitur.
The jury rejected the lack of informed consent theory in reaching its verdict
against [the surgeon].” Id. at 1136.
In Hightower-Warren v. Silk, 698 A.2d 52 (Pa. 1997), the plaintiffs’
decedent underwent total removal of her thyroid. She subsequently
experienced hoarseness that was attributed to paralysis of her vocal cord. The
trial court initially entered a nonsuit, finding she could not proceed to the jury
on the basis of res ipsa loquitur because her expert’s testimony “was too
speculative to establish a causal connection between [defendant’s] surgical
treatment and [decedent’s] vocal cord paralysis.” Id. at 53. Plaintiffs
requested a new trial, contending their expert’s testimony was sufficient to
proceed under a theory of res ipsa loquitur. The trial court denied plaintiffs’
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motion, ruling that the expert’s testimony failed to satisfy either of the first
two elements of § 328D. We affirmed the trial court’s ruling. The Supreme
Court reversed, finding that this Court erred in failing to follow the non-suit
standard1 and that plaintiffs satisfied all three elements of § 328D. Therefore,
plaintiffs were entitled to proceed to the jury under the res ipsa doctrine.
While it is not clear whether plaintiffs initially pursued any claims based on
direct evidence of negligence, it is clear that the case was sent back to the
trial court to proceed on a res ipsa loquitur theory only.
A common thread between Jones and Hightower-Warren is the fact
the claimed injury involved a part of the body that was not directly involved
in the patient’s surgical procedure. In each case, the plaintiff introduced some
evidence suggesting, but not directly proving, causation. In D’Ardenne, this
Court characterized such evidence as falling into a “grey zone,” noting
“Pennsylvania courts have thus concluded that where the evidence in the case
falls within the grey zone, a factual realm in which a plaintiff presents as
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1 Unlike the case before us, which involves an abuse of discretion standard of
review, Hightower-Warren was an appeal from the entry of non-suit.
It is well-established that a compulsory non-suit may be entered
only when the plaintiff cannot recover under any view of the
evidence, with every doubt resolved against its entry and all
inferences drawn most favorably to the plaintiff. Moreover, a
plaintiff must be given the benefit of all favorable testimony and
all reasonable inferences drawn therefrom.
Hightower-Warren, 698 A.2d at 54 (quotation and citation omitted).
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specific a case of negligence as possible, yet is unable to demonstrate the
exact cause of the accident, plaintiff is entitled to a res ipsa loquitur charge.”
D’Ardenne, 712 A.2d 324-25 (emphasis in original, internal citations and
quotations omitted).
This Court discussed evidence falling in the “grey zone” in Smith v. City
of Chester, 515 A.2d 303, 306 (Pa. Super. 1986), noting:
While it is true that a res ipsa loquitur instruction is not warranted
in the face of clear and indubitable proof of negligence, it is also
true that a res ipsa loquitur charge is appropriate where the facts
of a case lie somewhere in a grey zone “between the case in which
the plaintiff brings in no evidence of specific acts of negligence,
and therefore must rely on the res ipsa loquitur inference alone,
and the case in which the defendant’s negligence ‘can be clearly
and indubitably ascertained’ from the plaintiff's evidence, Farley
v. Philadelphia Traction Company, 132 Pa. 58, 18 A. 1090(1890), and therefore the plaintiff need not rely on the res ipsa
loquitur inference at all.” Hollywood Shop, Inc. v. Pa. Gas &
Water Co., 270 Pa. Super. 245, 252–53, 411 A.2d 509, 513
(1979).
Id. at 306 (Pa. Super. 1986) (emphasis in original). Here, the evidence can
be clearly and indubitably ascertained through Dr. Pepple’s expert testimony
that Dr. Zepp negligently inserted a central venous pressure (“CVP”) line
causing Mrs. Lageman’s arterial cannulation, in turn causing her stroke.
Therefore, this is not a case where the evidence falls into the grey zone. Mrs.
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Lageman did not need to rely on, and was not entitled to, a res ipsa loquitur
inference and charge.2
In MacNutt v. Temple University Hospital, Inc., 932 A.2d 980, 986
(Pa. Super. 2007) (en banc), the plaintiff claimed he suffered a chemical burn
to his shoulder during surgery to treat his thoracic outlet syndrome. The
defense presented testimony suggesting plaintiff had shingles, not a chemical
burn. The trial court precluded plaintiffs from proceeding on the theory of res
ipsa loquitur because plaintiffs “had produced adequate evidence to support a
cause of action based on a standard theory of negligence without relying on a
theory of res ipsa loquitur.” Id. at 984 (quoting Trial Court Opinion, 6/24/15,
at 1-2). On appeal, we affirmed, holding that the trial court “properly
precluded [plaintiffs] from presenting their case at trial under the res ipsa
loquitur doctrine.” Id. at 983.
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2 The Majority suggests our Supreme Court sanctioned giving a res ipsa charge
in Quinby despite “sufficient direct evidence of negligence from plaintiff’s
expert to make out a prima facie case[.]” Majority Opinion at 28 (emphasis
added). However, that Court recognized that res ipsa is a “simple matter of
circumstantial evidence.” Quinby, 907 A.2d at 1071 (quoting WILLIAM L.
PROSSER, LAW OF TORTS §§ 39, 40 (4th ed.1971). I submit the evidence of
negligence in Quinby was circumstantial, not direct. A quadriplegic was left
unattended on an examination table—either on his side or on his back—and
fell to the floor. No one observed the fall and no one could explain how or
why he fell from the table. Dissimilarly here, Dr. Zepp admitted that he
inserted the CVP line through its intended destination—the jugular vein—and
into the carotid artery. The question was simply whether he was negligent for
doing so. Despite direct evidence of the errant location of the catheter, the
jury concluded he was not negligent.
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This Court once again recognized, “The doctrine of res ipsa loquitur is a
rule of circumstantial evidence which allows plaintiffs, without direct
evidence of the elements of negligence, to present their case to the jury
based on an inference of negligence.” Id. at 986 (emphasis added). Not only
was there direct evidence of negligence, but also there was a “difference of
opinion on the nature of [plaintiff’s] injury as well as the competent evidence
of another possible cause for the injury.” Id. at 991. These factors “created
a factual dispute regarding whether [plaintiff’s] injury was outside the scope
of [defendants’] duty to appellant.” Id. (citation omitted). Consequently,
[Plaintiffs] did not satisfy the necessary factors under the
Restatement to proceed under the doctrine of res ipsa loquitur.
Accordingly, we hold this case was not in reality a res ipsa loquitur
case, and the court's decision to deny [plaintiffs] a new trial on
this ground must stand. . . . [W]e hold the court properly
precluded [plaintiffs] from presenting their medical malpractice
case at trial based on a res ipsa loquitur theory of negligence.
Id. at 991-92 (citations omitted).3
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3 On appeal, the plaintiffs argued (1) trial court error for not allowing them to
prove negligence through res ipsa loquitur and (2) trial court error for refusing
to instruct the jury on res ipsa loquitur. This Court considered the two issues
together, devoting much of its analysis to whether the plaintiffs satisfied the
elements of § 328D, and concluding they did not satisfy either § 328D(1)(a)
or (b). MacNutt, 932 A.2d at 990-91. While the Court did not devote
significant separate analysis to the plaintiffs’ entitlement to prove negligence
through res ipsa loquitur, the Court—as reflected above—ultimately
determined that the trial court properly precluded plaintiffs from presenting
their case on a res ipsa loquitur theory of negligence. Id. at 991-92.
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My review of the case before us leads me to conclude that this case, just
as MacNutt, is one in which the plaintiff produced direct evidence to support
a negligence cause of action without the need to rely on res ipsa loquitur. As
in MacNutt, the case before us is a case with expert testimony demonstrating
the exact cause of the incident rather than circumstantial evidence of
negligence. As such, it is not a res ipsa loquitur case.
I offer the following factual summary in support of my conclusion. Mrs.
Lageman filed suit alleging that Dr. Zepp, the anesthesiologist assigned to her
surgery, negligently inserted a CVP line, also known as a catheter, into her
carotid artery resulting in a stroke that left her partially paralyzed. At trial,
she first called Dr. Zepp as a witness as on cross-examination. Dr. Zepp
explained the procedure he employed for insertion of a CVP line. Notes of
Testimony, Trial (“N.T.”) at 166-80. He admitted that in the course of
inserting the CVP line, the catheter went through the walls of its intended
destination (the jugular vein) and into Mrs. Lageman’s carotid artery. Id. at
181.4 He acknowledged that placing a CVP line into the artery can increase
the risk of stroke and that Mrs. Lageman did suffer a stroke. Id. at 185-86,
189. When asked if “operator error” was the only explanation for what
happened, he replied that the steps he took to confirm the catheter was in the
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4 In his opening statement, Dr. Zepp’s counsel explained to the jury that the
technical term for “when a catheter is placed in an artery rather than a vein”
is “arterial cannulation.” Id. at 138.
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proper location were the same steps he takes in the placement of every CVP
line and stated, “I’ve searched my heart as to why this happened and whether
there is any steps that I could have changed when I placed the line, and
there’s nothing that I would have done differently.” Id. at 194-95.
Mrs. Lageman’s counsel asked Dr. Zepp if he was wrong in thinking the
catheter was in the jugular vein. Dr. Zepp answered, “I was wrong.” Id. at
195. When asked if he was also wrong when he performed the manometry
tests in the course of inserting the line, he said he was not wrong,
commenting, “The manometry is a very sensitive test to determine whether
or not you are arterial or venous, and the manometry passed the venous
confirmation.” Id.
Dr. Zepp’s own counsel later asked, “Dr. Zepp, you did not intend for
this arterial cannulation to occur in connection with Mrs. Lageman’s line
placement, correct?” Dr. Zepp answered, “That’s correct.” Counsel then
asked, if “ultimately being wrong in that respect, is that the same thing as
being negligent?” Dr. Zepp responded, without objection, “No.” Id. at 196.
Mrs. Lageman presented the expert testimony of anesthesiologist Dr. Pepple.
Dr. Pepple explained that he reviewed the transcript of Dr. Zepp’s 2015
deposition. Dr. Pepple was asked, “In your area of expertise as an
anesthesiologist, did you form an opinion as to whether [Dr.] Zepp in his
placing the CVP line in Mrs. Lageman acted below the standard of care
required under the circumstances of an anesthesiology specialist; in other
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words, was he negligent?” Id. at 220. He answered, “My opinion was that
he was negligent.” Id. Dr. Pepple went on to explain that placing the CVP
line into the carotid artery can result in a total occlusion or an “embolic
phenomenon or obstructive phenomenon which can cause a stroke.” Id. at
222.
The following exchange subsequently took place between Mrs.
Lageman’s counsel and Dr. Pepple:
Q. Now, Dr. Zepp would say he followed all the proper
procedures, he did test with a tube called manometry, and he did
everything right, but it turned out to be wrong in the artery. In
your opinion, is that possible under the appropriate standard of
care?
A. It doesn’t seem possible because the facts that we do know
are that the catheter was in an artery, okay, so if it was in an
artery, then if you worked backwards, you’d have to say, well,
how did it get there?
If you transduced it, in other words, if you have a needle and you
hook in this case a piece of plastic tubing to it and let the blood
go up into it, if it’s in an artery, it usually will go up quite high.
At his deposition, he said he did that. He didn’t record that in the
anesthesia record.
Id. at 226.
Dr. Pepple acknowledged that Mrs. Lageman’s jugular vein was located
directly above her carotid artery. That positioning occurs in approximately
8% of people, whereas in approximately 70% of people, the jugular vein is to
the lateral side. Id. at 227-28. While the location of her vein in relation to
her carotid artery would not be an excuse for putting the catheter into the
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artery, “It’s an explanation. It’s not an excuse. This was a more difficult
placement than normal.” Id. at 230. As for transducing to locate the tip of
the needle on the CVP line, Dr. Pepple indicated you would have to move the
transducer up and down but the medical records do not reflect that was done.
Id. at 229-30.
Dr. Pepple expounded on the harm resulting from placing a catheter in
the carotid artery. When asked if placing a catheter in the carotid artery
increases the risk of a stroke, he replied that it “increases it exponentially.”
Id. at 232. Further, if Dr. Zepp put the catheter into the artery before
realizing it was in the artery, “[t]hat is below the standard of care. I mean,
that’s what we are trying to avoid entirely.” Id. at 233. To a reasonable
degree of medical certainty, it was Dr. Pepple’s opinion that Mrs. Lageman’s
stroke was “caused by this catheter being down 18 centimeters
[approximately seven inches] into the arterial area.” Id. at 237. If the
standard of care had been properly observed, all the steps were taken
correctly, and things were seen and evaluated correctly, it would not be
possible for the carotid artery to be cannulated “to that degree.” Id. at 238
(emphasis added).
At the conclusion of the testimony from Dr. Pepple, whose testimony
was taken out of order to accommodate his schedule, Dr. Zepp returned to
the stand. When asked if he agreed with Dr. Pepple’s opinion that he
performed Mrs. Lageman’s procedure in a negligent fashion, Dr. Zepp replied,
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“No, I do not.” Id. at 296-97. He then proceeded, over objection from Mrs.
Lageman’s counsel, to demonstrate and describe insertion of a CVP line using
a mannequin. Id. at 297-311.
In addition to Dr. Zepp’s own testimony, the defense offered the expert
testimony of anesthesiologist Dr. Hudson. Based on his review of the
anesthesia records from Mrs. Lageman’s surgery and Dr. Zepp’s deposition,
Dr. Hudson formed opinions, to a reasonable degree of medical certainty, that
Dr. Zepp’s conduct met the applicable standard of care, that Dr. Zepp was not
negligent, and that Dr. Zepp did not commit malpractice. Id. at 502. Dr.
Hudson noted his awareness of the arterial cannulation that occurred in the
placement of Mrs. Lageman’s CVP line and expressed his opinion that Dr. Zepp
“followed the standard of care and the guidelines that are developed based on
the medical evidence in the steps that he took in the placement of the - - the
attempted placement of the central line.” Id. at 502-03. He stated that Dr.
Zepp used ultrasound first to identify the location of the jugular vein in relation
to the carotid artery; however, the use of ultrasound does not eliminate the
risk of arterial cannulation. Id. at 503-04. He also discussed manometry, the
“gold standard” confirmatory test for location of the catheter, and explained
that in the course of conducting that final step of measuring the pressure in
the line, Dr. Zepp recognized that the line was in the carotid artery. Id. at
509-10.
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Dr. Hudson was asked to articulate the major reasons why he disagreed
with Dr. Pepple’s opinions and criticism of Dr. Zepp’s actions. Dr. Hudson
explained that Dr. Pepple extensively discussed the usefulness of “a long axis
with an in-plane view of ultrasound versus a short axis view ultrasound.” Id.
at 511. Dr. Zepp had testified that he used the short axis view ultrasound.
Id. at 167-68. Dr. Hudson noted that “there’s really no compelling medical
evidence that suggests the one is better than the other to prevent posterior
wall puncture of the internal jugular vein or prevent[] carotid artery
cannulation. The vast majority of anesthesiology and critical care medicine
practitioners use a short axis view, they do not use a long axis view[.]” Id.
at 511. He also took issue with Dr. Pepple’s lack of discussion concerning the
importance of manometry, which in his estimation “is such a vital part of the
confirmatory process in assuring that that initial catheter is in the vein and
not the artery.” Id. at 512.
Dr. Hudson testified that he has been involved in quality assurance
within institutions where he has practiced. Id. He acknowledged that he has
experienced arterial cannulation in connection with CVP line placement in the
course of his practice, as have experienced colleagues in his department. Id.
In his opinion, “Dr. Zepp’s description of his techniques for placement of
central venous catheters, he took the recommended steps to limit the risk of
inadvertent arterial cannulation, and his technique is consistent with the
standard of care.” Id. at 512-13.
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Again,
[b]ecause medical malpractice is a form of negligence, to state a
prima facie cause of action, a plaintiff must demonstrate the
elements of negligence: a duty owed by the physician to the
patient, a breach of that duty by the physician, that the breach
was the proximate cause of the harm suffered, and the damages
suffered were a direct result of harm. With all but the most self-
evident medical malpractice actions there is also the added
requirement that the plaintiff must provide a medical expert who
will testify as to the elements of duty, breach, and causation.
Tillery v. Children’s Hospital of Philadelphia, 156 A.3d 1233, 1240 (Pa.
Super. 2017) (quoting Fessenden, 97 A.3d at 1229). Further, “[a]n expert
witness proffered by a plaintiff in a medical malpractice action is required to
testify to a reasonable degree of medical certainty, that the acts of the
physician deviated from good and acceptable medical standards, and that such
deviation was the proximate cause of the harm suffered.” Id. (quoting
Stimmler v. Chestnut Hill Hosp., 981 A.2d 145, 155 (Pa. 2009)).
There is no dispute that Dr. Zepp owed a duty of care to his patient,
Mrs. Lageman. Based on my review of Dr. Pepple’s testimony, an abridged
version of which I have provided above, I conclude that Mrs. Lageman
presented sufficient direct evidence to demonstrate that Dr. Zepp’s actions fell
below the standard of care and therefore breached his duty of care to Mrs.
Lageman. Through Dr. Pepple’s testimony, she also established that Dr.
Zepp’s breach of duty caused her stroke, which left her paralyzed. Testimony
from various witnesses, including an actuary, Jonathan Cramer, N.T. at 351-
81, Mrs. Lageman’s daughter, Adrienne Marie Lageman, id. at 392-404, and
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Mrs. Lageman herself, Lageman Deposition, 4/14/15, at 1-16, showed that
Mrs. Lageman suffered damages as a direct result of the harm. Therefore,
even though Dr. Zepp contested the evidence, Mrs. Lageman established a
prima facie case of negligence against Dr. Zepp.5 The Majority recognized
that fact. Majority Opinion at 5 (“Thus, [Mrs. Lageman] established a prima
facie case of negligence: a duty to use reasonable care, breach of that duty,
and evidence that breach increased the risk of harm actually suffered by Mrs.
Lageman.”).
Following closing arguments, the trial court properly charged the jury
on the elements of negligence and, in particular, medical negligence with
respect to a doctor’s performance of duties that stem from his professional
relationship with a patient. The jury was instructed to determine if Dr. Zepp’s
care or treatment fell below the standard of care, whether his negligence was
a factual cause of Mrs. Lageman’s injuries, and the amount of damages she
sustained as a result of Dr. Zepp’s negligence. N.T. at 628-37. The jury was
advised that a bad or unforeseen result that occurs as a result of a physician’s
conduct is not necessarily proof of negligence, that a doctor does not
guarantee a particular result, and that the jury may not infer the doctor was
negligent solely because the treatment ended with an unfortunate result. Id.
____________________________________________
5 I note that the trial court denied Dr. Zepp’s motion for nonsuit. N.T., at 407-
08. Both parties requested, and were denied, directed verdicts at the close of
testimony. Id. at 563-64.
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at 629. Following deliberations, the jury concluded Dr. Zepp was not
negligent. Id. at 649.
The fact the jury determined Dr. Zepp was not negligent is not an
indication Mrs. Lageman failed to establish a prima facie case of negligence.
To the contrary, she presented expert testimony that provided direct evidence
of Dr. Zepp’s negligence. In this instance, the evidence was contested by Dr.
Zepp through his own testimony and that of his expert, Dr. Hudson. It was
up to the jury to weigh that evidence and apply the law as instructed by the
trial court. It is presumed that jurors follow the court’s instructions. Farese
v. Robinson, 222 A.3d 1173, 1184 (Pa. Super. 2019).
Because Mrs. Lageman presented direct evidence of causation, and
therefore direct evidence of negligence, she was not entitled to a res ipsa
loquitur instruction. I would find, as the en banc panel of this Court did in
MacNutt, that the trial court “properly precluded [plaintiffs] from presenting
their medical malpractice case at trial based on a res ipsa loquitur theory of
negligence.” MacNutt, 932 A.2d at 992. Therefore, the trial court did not err
or abuse its discretion in denying a res ipsa instruction and Mrs. Lageman
should not be granted a new trial.
Although I conclude the Majority incorrectly determined Mrs. Lageman
was entitled to a res ipsa instruction and, therefore, a new trial, I write further
to express my disagreement with the Majority’s analysis of the first element
of § 328D. In my estimation, Mrs. Lageman simply did not establish that the
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event at issue here—arterial cannulation—does not ordinarily occur in the
absence of negligence.
To warrant a res ipsa instruction, a plaintiff must satisfy all three
elements of § 328D. MacNutt, 932 A.2d at 987.
In accordance with § 328D,
(1) It may be inferred that harm suffered by the plaintiff is caused
by negligence of the defendant when
(a) The event is of a kind which ordinarily does not occur in
the absence of negligence;
(b) Other responsible causes, including the conduct of the
plaintiff and third persons, are sufficiently eliminated by
the evidence; and
(c) The indicated negligence is within the scope of the
defendant’s duty to the plaintiff.
Restatement (Second) of Torts, § 328D(1) (1964) (emphasis added).
As the trial court recognized:
On March 13, 2014, Plaintiff filed a complaint in medical
malpractice and negligence against the above-named Defendants.
Plaintiff alleged that Defendant Zepp was negligent for breaching
the standard of care as a result of placing the catheter through
the vein and into Plaintiff’s artery[, i.e., arterial cannulation]
causing her to suffer a stroke in her right middle cerebral artery
that resulted in left-sided paralysis.
Trial Court Opinion, 8/2/18, at 3. In the context of this case, and assuming
for the sake of argument that a res ipsa instruction was warranted, I submit
that § 328D appropriately would be read as follows:
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(1) It may be inferred that the stroke6 suffered by the Mrs. Lageman is
caused by negligence of Dr. Zepp if
(a) Arterial cannulation is an event of the kind that ordinarily
does not occur in the absence of negligence;
(b) Other responsible causes of the stroke are eliminated; and
(c) The indicated negligence is within the scope of Dr. Zepp’s duty
to Mrs. Lageman.7
As outlined above, Mrs. Lageman’s expert, Dr. Pepple, concluded Dr.
Zepp was negligent in his placement of the central line. In particular, Dr.
Pepple was critical of the technique employed by Dr. Zepp in the insertion of
the central line, and concluded his placement of the catheter into the carotid
artery fell below the standard of care. However, he also acknowledged that
following all of the applicable guidelines established by the American Society
of Anesthesiologists “cannot guarantee any specific outcome.” N.T. at 282.
See also id. at 293 (following the recommended steps cannot guarantee any
specific outcome for a patient).
By contrast, Dr. Zepp testified that he was not negligent and that arterial
cannulation can occur, even in the absence of negligence. Id. at 314. He
explained that there is an algorithm for managing the complications of arterial
cannulation because
____________________________________________
6 There is no suggestion there was any damage to Mrs. Lageman’s carotid
artery or her jugular vein as a result of the arterial cannulation. The stroke is
the “harm” she alleged resulted from the arterial cannulation.
7 The trial court determined that Mrs. Lageman established the third element,
i.e., that the indicated negligence is within the scope of Dr. Zepp’s duty to
Mrs. Lageman. Trial Court Opinion, 8/2/18, at 8.
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[i]t’s necessary for the care of the patient. If this type of issue
never arose, there wouldn’t be an algorithm for its use. There
would be no reason to create an algorithm for this type of an issue.
It’s something that’s happened to my partners, it’s something
that’s obviously happened to me, so, you know, we have these
best practice guidelines to guide us through placing this line, but
even in the absence of negligence, we can still have these
arterial cannulations, and we need to have a way to be able to
manage them. And the literature supports the use of getting
another body and getting a vascular surgeon in to, you know,
further investigate that rather than pulling that catheter out and
just holding pressure.
Id. at 314-15 (emphasis added).
In addition, Dr. Zepp’s expert, Dr. Hudson, offered his opinion that Dr.
Zepp was not negligent, that his conduct met the applicable standard of care,
and that Dr. Zepp followed proper guidelines in the attempted placement of
the central line. Id. at 502-03. Dr. Hudson also acknowledged that arterial
cannulation has occurred in connection with his placement of a central line
and has happened with experienced colleagues in his department. Id. at 512.
“[E]ven following the guidelines, you cannot guarantee that you are going to
prevent injury.” Id. at 546.8
In deciding the first element of § 328D was satisfied, the Majority
contends that Mrs. Lageman “produced testimony that cannulation of the
____________________________________________
8 Because Dr. Hudson’s report did not specifically state that arterial
cannulation does not happen in the absence of negligence, the trial court
precluded Dr. Zepp’s counsel from eliciting that opinion at trial. See Majority
Opinion at 25 n.8.
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artery did not usually occur in the absence of negligence when the procedure
was performed with manometry as maintained by [Dr.] Zepp.” Majority
Opinion at 14. The Majority also indicated, without citation to the trial
transcript, “Dr. Pepple testified unequivocally herein that, to a reasonable
degree of medical certainly, arterial cannulation would not have occurred in
the absence of negligence in the performance of the central line placement.”
Id. at 20. However, my review of the transcript fails to unearth any
unequivocal statement by Dr. Pepple that arterial cannulation does not
ordinarily occur in the absence of negligence. Rather, he offered his opinion
that Dr. Zepp was negligent in his insertion of the central line and that his
conduct fell below the standard of care. N.T. at 220, 233. He also was asked,
“And if one is approaching a patient like this within the standard of care that
is done negligently, should this cannulation of the artery occur?” Id. at 240.
Dr. Pepple responded, “It should not occur.” Id.9 In essence, the expert
testimony of Dr. Pepple did nothing more than satisfy the elements necessary
to establish a prima facie case of a medical negligence case. See Quinby,
907 A.2d at 1070 (“Because medical malpractice is a form of negligence, to
state a prima facie cause of action, a plaintiff must demonstrate the elements
of negligence: a duty owed by the physician to the patient, a breach of that
____________________________________________
9 While I am not quite certain of the meaning of counsel’s question, the
question clearly did not ask if arterial cannulation ordinarily does not occur in
the absence of negligence.
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duty by the physician, that the breach was the proximate cause of the harm
suffered, and the damages suffered were a direct result of harm.”) (quotation
and citation omitted).
It further appears the Majority rejected the testimony of Dr. Zepp that
arterial cannulation can occur even in the absence of negligence and similarly
discounted Dr. Hudson’s opinion that Dr. Zepp met the applicable standard of
care. Regardless, Dr. Pepple’s conclusion that Dr. Zepp was negligent does
not equate to a conclusion that arterial cannulation does not ordinarily occur
in the absence of negligence. Again, it was enough to satisfy the requirements
necessary to establish a prima facie of negligence. The case appropriately
went to the jury on that basis and the jury determined that Dr. Zepp was not
negligent.
With respect to res ipsa loquitur, the trial court concluded:
We find that the evidence in this case did not establish that more
likely than not that [Mrs. Lageman’s] injuries were caused by [Dr.]
Zepp’s negligence. We find that the experts shared different views
on the use of ultrasound to find the vein and artery. Based on
these conclusions, we found that the possibilities were evenly
divided between negligence and its absence. As a result, we
found that [Mrs. Lageman] did not meet her burden of proof
of drawing a permissible conclusion that an arterial
cannulation does not ordinarily happen unless someone is
negligent. We suggest that conclusion is not erroneous.
Trial Court Opinion, 8/2/18, at 19 (emphasis added).
Again, “[b]efore a plaintiff can invoke the doctrine of res ipsa loquitur,
all three of the elements of Section 328D(1) must be established; only then
does the injurious event give rise to an inference of negligence.” MacNutt,
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932 A.2d at 987 (citations omitted). Mrs. Lageman failed to establish the first
element and I believe the Majority’s conclusion to the contrary is incorrect.
Therefore, even assuming Mrs. Lageman was entitled to proceed on a res ipsa
loquitur theory, she did not satisfy the first element of § 328D and would not
have been entitled to a res ipsa loquitur jury instruction.
The Majority also concludes that the trial court committed an error of
law by permitting Dr. Zepp to conduct a live demonstration using a mannequin
to illustrate the process of inserting a central line. Majority Opinion at 28-34.
It is well settled that “the admission of evidence rests within the sound
discretion of the trial court and will only be reversed upon a showing that it
abused its discretion.” Quinby, 907 A.2d at 1078. Additionally, "for a ruling
on evidence to constitute reversible error, it must have been harmful or
prejudicial to the complaining party.” Stumpf v. Nye, 950 A.2d 1032, 1036
(Pa. Super. 2008) (citation omitted).
As this Court has explained:
Demonstrative evidence is “tendered for the purpose of rendering
other evidence more comprehensible for the trier of fact.”
2 MCCORMICK ON EVIDENCE § 212 (5th ed. 1999). “As in the
admission of other evidence, a trial court may admit
demonstrative evidence whose relevance outweighs any potential
prejudicial effect.” Commonwealth v. Serge, 586 Pa. 671, 896
A.2d 1170, 1177 (2006) (citation omitted). “Demonstrative
evidence may be authenticated by testimony from a witness who
has knowledge ‘that a matter is what it claimed to be.’” Id. (citing
Pa.R.E. 901(b)(1)).
Kopytin v. Aschinger, 947 A.2d 739, 747 (Pa. Super. 2008).
Here, the trial court concluded:
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We find the demonstration was relevant to help the jury
understand what this procedure involved and the steps that are
undertaken to accomplish the procedure. We also find that the
testimony throughout this portion of the trial made it clear to the
jury that this demonstration was not illustrative of the
circumstances in [Mrs. Lageman’s] case. The demonstration was
only used for the purpose of showing the steps for placing a
central venous line. [Mrs. Lageman] had plenty of opportunity to
clarify this fact to the jury and to cross-examine [Dr.] Zepp while
the mannequin was in the room during the trial. Therefore, we
find that we did not abuse our discretion in allowing the
demonstrative exhibit to be presented before the jury in this case.
Additionally, the demonstration tended to show clearly to the jury
how the initial position of the needle was plainly visible through
the ultrasound, and thus, how its placement in an artery could
have been avoided. We fail to see how the demonstration
prejudiced [Mrs. Lageman].
Trial Court Opinion, 8/2/18, at 21-22.
My review of the transcript supports the trial court’s findings. The
demonstration enabled the jury to better understand the procedure Dr. Zepp
performed on Mrs. Lageman and the technique he employed. The fact that
Dr. Zepp was demonstrating the procedure on a mannequin and not recreating
the actual procedure performed on Mrs. Lageman was driven home several
times in the course of his testimony. See N.T at 297 (“obviously, we have a
mannequin here” . . . “This is a mannequin. This is a mannequin specifically
designed in our simulation lab in York Hospital to allow you to practice this
technique”); at 297-98 (“You can’t go through all the steps, so there’s going
to be a point [] where I kind of stop, and I’ll talk you through the rest. The
reason that is, is, again, you don’t want to put the dilators into the
mannequin”); at 298 (“I mean, again, it’s just a model, a mannequin, so it’s
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not as realistic as it is in real life”); at 301 (“I’m not going to do that again.
It’s a mannequin,”); and at 305 (“I can’t really replicate that with the
mannequin, but that’s kind of standard practice when you place the line”).
Further, as the trial court determined, “We fail to see how the
demonstration prejudiced [Mrs. Lageman].” Trial Court Opinion, 8/21/18, at
22. In fact, before Dr. Zepp concluded the demonstration, Mrs. Lageman’s
counsel asked, “[C]ould we have the doctor show what it actually looks like
when it is in the artery like it was with Mrs. Lageman” because he “showed us
what it looks like when it’s in the vein[.]” N.T. at 305-06. Dr. Zepp proceeded
to put the needle into the artery, explaining “when you have a real patient,
this column of tubing goes up fast because it’s a higher pressure system, and
you will be able to see that pulsation.” Id. at 308. He explained that the
orientation was the same as before and stated, “See the pulsations? The
manometry corresponds to the pulsations, . . . the column of fluid doesn’t fall
back down into the patient.” Id.
In his closing argument, Mrs. Lageman’s counsel actually used the
demonstration to support his claim of Dr. Zepp’s negligence, stating:
Well, what about this manometry? That’s a procedure that’s
supposed to be done before you put the large bore catheter in to
verify that you are not in the artery, in the vein.
You had a demonstration here with a mannequin, and – a practice
mannequin, and Dr. Zepp was showing what he says that he did
or he always does and probably believes that he did. But I
interrupted him. I stood up. I interrupted. I said, could we see
what it would look like if you actually put that catheter in the
artery where nobody disagrees that it was? Nobody disagrees
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with that. What would it look like if you put it in the artery? And
he held up the tube, and there was some necessity to try to mimic
the heartbeat by squeezing that bulb, and you could see that it
was red and it went up and down with the heart.
Then Dr. Zepp went over and showed you the heartbeat, the peak
of the mountain, after he had sewed everything in and after he
checked the pressure, and then he learned, you know, it’s too late,
that he was in the artery.
So that – I asked him, does that top of the wave there, does that
correspond to the heart beating? And he said, yes, that’s when
the heart contracts and beats, and that’s when the column rises if
you are doing the manometry correct, that gold standard that Dr.
Hudson talked about.
So how – if your manometry was done, if it was done properly, if
it was interpreted properly, how do you miss that? How do you
miss seeing that the blood is red and it’s going up and down?
The blood is a different color in the veins than in the arteries. I
used these, and I asked, is that – I asked in the question, is that
pretty much the difference? Yeah.
So was the manometry done? Was it done properly? Was it
interpreted properly? Even Dr. Hudson agreed, their expert, that
if it was not, that is below the standard of care.
N.T. at 602-04.
I believe the trial court properly exercised its discretion in permitting
the demonstration. Moreover, Mrs. Lageman has failed to demonstrate how
she was prejudiced by the court’s ruling. Finding no abuse of discretion in
that evidentiary ruling, I would not disturb it.
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