Lageman v. Zepp
In Lageman v. Zepp, No. 21 MAP 2021, the Pennsylvania Supreme Court granted review to clarify whether resort to the doctrine of res ipsa loquitur (“Doctrine”) is precluded when the plaintiff has introduced enough “direct” evidence that the Doctrine is not the only avenue to a finding of liability — whether, in short, the two approaches to satisfying the plaintiff’s evidentiary burden are mutually exclusive.
Elizabeth Lageman underwent surgery for a small bowel obstruction secondary to a large ventral hernia at defendant, York Hospital. Defendant, John Zepp, IV, D.O., an anesthesiologist, was responsible for monitoring the patient’s vital signs. To do this, Zepp employed a central venous pressure line (“CVP”), which he attempted to insert into the internal jugular vein, located near the internal (or “common”) carotid artery. From his insertion point, the carotid lay directly behind Lageman’s jugular.
Zepp passed the CVP through the far wall of the vein and into the right common carotid artery behind. Zepp did not realize his error and secured the placement by sewing the CVP into place. Zepp later determined that the waveform of the pressure indicated arterial rather than venous placement. Zepp called for a vascular surgeon to address the misplacement and repair any damage. A catheter was placed in a vein in Lageman’s groin to enable proper monitoring, and the surgery continued.
After the procedure, Lageman had little or no movement in her left-side extremities. She was diagnosed with one or more strokes in the distribution of the right internal carotid artery to the right middle cerebral artery. Zepp acknowledged that arterial cannulation has been associated with stroke, because of the potential penetration of air, fluids, or medications entering the artery, or due to the creation of a blood clot or the dislodgment of arterial plaque which then travels to the brain. But he also testified that, “if it’s managed appropriately, we should be able to hopefully avoid those complications.” He said that if such were to occur in the right internal carotid artery, any associated strokes would occur in the right distribution to the right middle cerebral artery, as in this case.
Lagerman’s expert, Pepple, testified that Zepp departed from the standard of care in utilizing a short-axis ultrasound method (opposed long-axis ultrasound) to place the CVP that did not enable him to visualize the tip of the needle, leaving him blind to the fact that the needle passed through the vein and entered the artery. Pepple also questioned Zepp’s assertion that he relied upon manometry to confirm the needle’s placement because Zepp made no note to that effect in the chart. In Pepple’s view, the difference in what manometry would show between venous and arterial placement would be too striking to miss. Pepple also testified that cannulating the artery increased the risk of stroke “exponentially,” and, taken collectively, there was no evidence of another cause in this case.
Zepp’s expert, Hudson, testified that Zepp’s use of short-axis ultrasound in needle placement is the state of the art but does not eliminate the risk of arterial cannulation. Hudson also testified that “there’s really no compelling medical evidence that suggests that one is better than the other to . . . prevent carotid artery cannulation,” adding that the “vast majority” of practitioners favor short-axis ultrasound. However, Hudson acknowledged that Zepp did not confirm the presence of the wire in the vein by ultrasound before placing the catheter.
The trial court declined to charge the jury on res ipsa loquitur, a discrete category of “circumstantial evidence,” which may suffice to establish negligence where more specific evidence of the events surrounding the injury eludes even diligent investigation. See Gilbert v. Korvette, Inc., 327 A.2d 94, 99 (Pa. 1974). The trial court did however charge the jury on the distinction between direct and circumstantial evidence, and on the jury’s prerogative to base its verdict in whole or in part on the latter:
[E]vidence can be what we call direct evidence, and direct evidence is something that a witness generally saw or did that they can testify to themselves.
Evidence can also be circumstantial evidence. Circumstantial evidence is evidence of facts from which you can infer the existence of other facts.
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Circumstantial evidence . . . is just as valid as any other type of evidence that can be presented during the course of the trial. It is something for you to consider when you consider the evidence and when you go back to deliberate on a verdict.
The jury found for the defendant and Lageman appealed to the PA Superior Court, which reversed the trial court’s decision, finding that Lageman adduced evidence to satisfy Restatement (Second) of Torts § 328D; and, therefore should have charged the jury on the Doctrine. Section 328D of the Restatement provides as follows:
- 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.
(2) It is the function of the court to determine whether the inference may reasonably be drawn by the jury, or whether it must necessarily be drawn.
(3) It is the function of the jury to determine whether the inference is to be drawn in any case where different conclusions may reasonably be reached.
The Supreme Court agreed with the Superior Court and held that under the circumstances of this case, where the evidence available to the plaintiff is equivocal and less than conclusive on the elements of negligence, asking the plaintiff to choose which evidentiary approach to pursue is manifestly unfair. If there is first-hand evidence to support a negligence claim, the jury should be so charged. If there is indirect, circumstantial evidence to cover gaps in the (more) direct evidence, and that evidence constitutes a prima facie showing under Section 328D, the jury should be so charged. The Court also determined that plaintiff satisfied Restatement (Second) of Torts § 328D since Pepple testified that this event ordinarily cannot happen without negligence on the part of the provider. Further, with the parties’ experts acknowledging the association between arterial cannulation and stroke, there can be no serious question that Lageman succeeded, entitling her to a jury determination on the Doctrine.