Availability of Res Ipsa Loquitur where Direct Evidence of Negligence Presented

Lageman v. Zepp, 237 A.3d 1098 (Pa. Super. 2020), allocatur granted March 31, 2021, appeal docket 21 MAP 2021

In this case, the Pennsylvania Supreme Court will consider whether the legal doctrine of res ipsa loquitur, “the thing speaks for itself,” is available in a medical malpractice action where direct evidence is presented to support a claim of traditional medical negligence.

Lageman underwent an emergency exploratory laparotomy. Dr. Zepp, the anesthesiologist for the surgery, mistakenly placed the catheter in Mrs. Lageman’s carotid artery and Lageman suffered a stroke that paralyzed her left side. Lageman filed a lawsuit alleging that Dr. Zepp deviated from the standard of care when placing the central line and that his negligence resulted in Lageman’s stroke. In addition to expert testimony that Dr. Zepp acted negligently, Lageman submitted that under the doctrine of res ipsa loquitur it could be inferred that the harm suffered by Lageman was caused by Dr. Zepp’s negligence. In support, Lageman introduced evidence calculated to establish the three elements necessary to invoke the inference: (1) the expert testimony of Dr. Pepple to the effect that, accepting Defendant Zepp’s version of how he performed the procedure, placing the central line in the carotid artery rather than the jugular vein would not ordinarily occur in the absence of negligence; (2) testimony from Dr. Pepple and Dr. Zepp to rule out other responsible causes for such an event; and (3) that it was undisputed that the alleged negligent central line placement was within the scope of Dr. Zepp’s duty to Mrs. Lageman. Prior to submission of the case to the jury, Lageman presented a proposed point for charge on res ipsa loquitur; however, the trial court refused to give a res ipsa instruction, stating that it was not the type of case where it was obvious that the doctrine applied. The jury returned a verdict in favor of the defendants and Lageman appealed.

Superior Court held that the trial court erred in failing to instruct the jury on res ipsa loquitur when Lageman offered evidence satisfying all three elements for the application of the doctrine: (1) introduction expert medical testimony that the event which occurred ordinarily would not have occurred in the absence of negligence; (2) ruling out other responsible causes of the event; and (3) establishing that the negligence occurred within the scope of a physician’s duty. The court further noted “[c]ritically, Defendant Zepp did not offer any non-negligent explanation for the arterial cannulation, nor evidence that some other cause was at least equally likely the cause of Mrs. Lageman’s injury that would dissolve the inference.” Slip op at 25-26.  The court went on to explain that the Supreme Court implicitly sanctioned the plaintiff’s introduction of evidence of specific negligence and concomitant reliance on the inference of negligence under res ipsa in Quinby v. Plumsteadville Family Practice, Inc., 907 A.2d 1061 (Pa. 2006), which Superior Court summarized as follows:

The decedent, a quadriplegic, was placed on an examination table to permit a physician to remove a facial lesion. It was undisputed that, after the surgery was completed, the decedent, who was left unrestrained and unattended on the examination table, fell to the floor. According to decedent, defendants left him on his right side; according to defendants, decedent was left on his back in the center of the table.

The plaintiff offered expert medical testimony, i.e., direct evidence that defendants had not complied with the standard of care, which required that decedent be safely secured on the examination table with side rails or straps, or that someone stay with him at all times. The expert also opined that the defendants failed to provide a safe environment for the decedent while he was in the office. In addition to the foregoing direct evidence of negligence, the physician stated that, “absent extrinsic forces not present” therein, he could not envision how a quadriplegic could fall from such a table “without there being a breach of the requisite standard of care.” Quinbysupra at 1067.

The trial court concluded that the expert’s testimony established a prima facie case of negligence for submission to the jury. However, it refused the plaintiff’s request to charge the jury on res ipsa loquitur. Our Supreme Court held this was error. It reasoned that defendants had a duty to place decedent on the table in a manner that would insure that he did not fall, and found that there were no facts indicating that the decedent’s fall resulted from anything other than defendants’ negligence. The Court concluded that the evidence satisfied the first element of § 328D because, “[s]imply put, in the absence of negligence, a quadriplegic patient such as Decedent could not fall off an examination table.” Id. at 202, 907 A.2d 1061. Hence, although there was sufficient direct evidence of negligence from plaintiff’s expert to make out a prima facie case, our Supreme Court held that the trial court erred in also refusing to charge on res ipsa where all three elements had been met.

Slip op. at 27-28. Thus, Superior Court concluded:

Herein, as in Quinby, Plaintiff offered Dr. Pepple’s expert testimony that Dr. Zepp’s conduct deviated from the standard of care in certain particulars, all of which were factually disputed by Dr. Zepp. The expert also opined that what occurred here, i.e., insertion of the catheter seven inches into the artery instead of the vein, is not something that occurs in the absence of negligence. Defendant Zepp maintained that incorrectly placing the catheter into the artery is not the same as being negligent, although he offered no explanation as to how it occurred. Since Plaintiff established all three elements of res ipsa loquitur, we find that the trial court abused its discretion in refusing to instruct the jury on res ipsa, and a new trial is warranted.

Slip op. at 29.

In dissent, Judge Stabile disagreed with the majority that res ipsa loquitur applied to this case because Langman provided direct evidence of negligence, as supported by the Supreme Court’s decision in Toogood v. Rogal, 824 A.2d 1140 (Pa. 2003) (plurality). In that decision, Judge Stabile summarized, the Supreme Court held that:

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 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).

Dissent slip op. at 2-3. Judge Stabile further disagreed with the majority’s application of Quinby, explaining that:

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.

Dissent slip op. at 12 n.2. Judge Stabile also emphasized the Superior Court’s decision in MacNutt v. Temple University Hospital, Inc., 932 A.2d 980, 986 (Pa. Super. 2007) (en banc), which he summarized as follows:

…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.

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).

Dissent slip op. at 12-13. Therefore, Judge Stabile concluded 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.

Dissent slip op. at 14.

The Pennsylvania Supreme Court granted allocatur limited to the following issue:

Did the Superior Court’s majority opinion conflict with this Court’s holdings in Quinby v. Plumsteadville Family Practice, Inc., 907 A.2d 1061 (Pa. 2006), and Toogood v. Rogal, 824 A.2d 1140 (Pa. 2003) (plurality), and the Superior Court’s en banc opinion in MacNutt v. Temple Univ. Hosp., 932 A.2d 980 (Pa. Super. 2007) (en banc), when the Superior Court found an abuse of discretion and reversible error in the trial court’s refusal to give a jury instruction on res ipsa loquitur where the underlying case was medically complex and the plaintiff had otherwise established a prima facie case of medical professional negligence by direct expert testimony offered to a reasonable degree of medical certainty?

For more information, contact Kevin McKeon or Dennis Whitaker.