Lageman v. Zepp

Decision Date22 December 2021
Docket NumberNo. 21 MAP 2021,21 MAP 2021
Parties Elizabeth H. LAGEMAN, BY AND THROUGH Her Power of Attorney and Daughter, Adrienne LAGEMAN, Appellees v. John ZEPP, IV, D.O.; Anesthesia Associates of York, PA, Inc. ; York Hospital; and Wellspan Health, t/d/b/a York Hospital, Appellants
CourtPennsylvania Supreme Court

Matthew Walker Rappleye, Robert A. Graci, Jennifer Susan Snyder, Lawrence F. Stengel, Saxton & Stump LLC, Lancaster, PA, for Appellants

Joseph M. Melillo, Navitsky Olson & Wisneski LLP, Harrisburg, PA, for Appellee

Barbara Axelrod, The Beasley Firm, LLC, Philadelphia, PA, for Amicus Curiae Pennsylvania Association for Justice

Maureen Murphy McBride, Lamb Mcerlane PC, James C. Sargent, Jr., West Chester, PA, for Amici Curiae The American Medical Association, The Pennsylvania Medical Society

Clifford Alan Rieders, Rieders, Travis, Humphrey, Waters & Dohrmann, Williamsport, PA, for Amicus Curiae North Central Pennsylvania Trial Lawyers Association




"The plaintiff was walking in a public street past the defendant's shop when a barrel of flour fell upon him from a window above the shop, and seriously injured him."1 So begins a case familiar to virtually any lawyer who didn't sleep through first-year torts. Neither any of the several witnesses nor the plaintiff could attest to the events immediately preceding the barrel's fall. The defendant argued that there was no evidence of negligence to support a jury verdict, indeed no evidence that the defendant or his agents were present at the time of the event, and an Assessor agreed, dismissing the case.

But a panel of judges of the Court of Exchequer felt otherwise. Acknowledging the dearth of "affirmative evidence" that the defendant or his agents were directly responsible for losing control of the barrel, the court observed that courts previously had held "that the mere fact of the accident having occurred is evidence of negligence, as, for instance," when two trains managed by the same company collide.2 In such a case, the accident alone establishes negligence; responsibility presumably lies only with the company that controlled both trains.

The court concluded that the plaintiff should have prevailed by virtue of "presumptive negligence," what we call a rebuttable presumption, shifting the burden to the defendant to produce exculpatory evidence.3 While the court emphasized that there are accidents from which no presumption of negligence should arise, it concluded that, for want of contrary defense evidence, the barrel could not have rolled out of the barn but for negligence, and it would be unjust to deny relief due to a lack of specific proof.

The case is famous because it contains the earliest reference to the phrase "res ipsa loquitur " in this connection,4 which we now use in our law to describe a similar doctrine. The literal translation is "the thing itself speaks ," but it is more commonly rendered in American law as "the thing speaks for itself ."5

In Pennsylvania, we have described res ipsa loquitur as a discrete category of "circumstantial evidence,"6 which may suffice to establish negligence where more specific evidence of the events surrounding the injury eludes even diligent investigation. And while the historical underpinnings of the Doctrine just entailed events that a lay person without assistance might conclude by an exercise of common sense could not occur absent negligence—the barrel rolling out of a barn, two trains colliding on a track managed by the same company—Pennsylvania now recognizes its application in contexts that exceed the unassisted grasp of lay jurors, cases involving complex facts and theories of liability. Among these we find medical malpractice cases, to which we extended the doctrine forty years ago.7

The application of the Doctrine to medical malpractice cases by now is settled. We granted review in this case to clarify whether resort to the 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. As it has in several earlier cases, the Superior Court held that they are not exclusive. We affirm.

I. The Surgery, the Trial Evidence, and the Jury Charge.

On May 17, 2012, Plaintiff-Appellee H. Elizabeth Lageman presented at Defendant-Appellant York Hospital with abdominal pain, nausea, and vomiting. Lageman had a small bowel obstruction

secondary to a large ventral hernia. Two days later, a general surgeon performed an emergency exploratory laparotomy. Defendant-Appellant John Zepp, IV, D.O., was the attending anesthesiologist.8

As a corollary of their responsibility for administering anesthesia

and ensuring that the patient remains in the intended physical state, anesthesiologists carefully monitor the patient's vital signs. Anesthesiologists have at their disposal various methods of monitoring the relevant parameters, and a limited ability to manipulate certain indicators.9

To monitor Lageman's condition, 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.10

Zepp's general practice in placing such a line involves the following steps. First, he inserts a small needle, monitoring its movement with dynamic, cross-axis ultrasound, which provides a two-dimensional, longitudinal view of the vein and the artery and can visualize the inserted needle.11 Once he confirms by ultrasound (to the extent possible) the needle's placement in the vein, Zepp uses the needle to thread a small catheter to "pull up" blood from the insertion site. This is another confirmatory step: if the needle has been placed in the vein, the level of the blood visible in the tube will stabilize. But if it has been mistakenly placed in the artery, the pressurization in that vessel will cause the blood in the tube to fluctuate and rise significantly. The blood from each vessel also differs in color, arterial blood a brighter red than venous blood, which appears darker. This method is referred to as manometry.12 Once placement is confirmed, Zepp threads a dilator into the vein, which makes the hole at the insertion site wider to accommodate the CVP, which he then inserts into the vein.

In this case, the placement failed. Zepp testified that he completed the above steps and confirmed to his satisfaction that he had placed the catheter into the vein, as intended. But when he inserted the CVP, he passed it through the far wall of the vein and into the right common carotid artery behind. The catheter ultimately penetrated approximately eighteen centimeters into the artery, against the pressurized arterial blood flow en route to Lageman's brain, perhaps as deep as the aortic arch,13 a structure attached to the top of the heart. Zepp did not realize his error at first and secured the placement by sewing the CVP into place.

With the CVP secured, Zepp conducted another test to determine the waveform of the pressure in the vessel, "a final confirmation" of placement.14 The reading indicated arterial rather than venous placement. Alerted to his error, Zepp called for a vascular surgeon to address the misplacement and repair any damage. He also asked the general surgeon to place a catheter 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.15 But he also testified that, "if it's managed appropriately, we should be able to hopefully avoid those complications."16 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.

The jury weighed Zepp's testimony against that of his expert witness, anesthesiologist Mark E. Hudson, M.D., and of Lageman's expert, anesthesiologist James M. Pepple, M.D.

Pepple opined to a reasonable degree of medical certainty that Zepp's actions fell below the applicable standard of care. Asked "[i]f the standard of care has been properly observed, that all the steps have not only been taken, but they were taken correctly and things were seen and evaluated correctly, is it possible that this artery would have been cannulated to this degree," he answered "No."17

Pepple further testified that Zepp's reliance upon a short-axis ultrasound method of monitoring the needle's placement, or at least the manner in which he used it, was inconsistent with the standard of care because it 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.18 In Pepple's view, the difference in what manometry would show between venous and arterial placement would be too striking to miss. This reinforced his opinion by suggesting that whether manometry was performed or not, either its non-performance or the poor quality of its performance fell below the standard of care.

Zepp's attorney questioned Pepple about guidelines provided by the American Society of Anesthesiologists ("ASA"). Pepple...

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