Lageman v. Zepp, 266 A.3d 572 (Pa. 2021)

A plaintiff has no obligation to choose one theory of liability, thereby excluding other theories.

The plaintiff alleged an anesthesiologist, during a surgical procedure, incorrectly inserted into the carotid artery the central line, which allegedly caused the plaintiff to sustain a stroke. Specifically, the plaintiff underwent surgery for a small bowel obstruction. The defendant was responsible for monitoring the patient’s vital signs during the surgery. After the procedure, the plaintiff was diagnosed with a stroke in the distribution of the right internal carotid artery where the procedure was performed. The plaintiff’s theories of liability were based on negligence and on the doctrine of res ipsa loquitur.

The trial court declined to charge the jury on the doctrine of res ipsa loquitur, and the jury found for the defendant. The plaintiff then appealed to the Superior Court of Pennsylvania, which reversed the trial court’s decision, finding that the plaintiff adduced evidence to satisfy the elements for a charge of res ipsa loquitur

On further appeal, the Supreme Court of Pennsylvania agreed with the Superior Court. The Supreme Court grounded its rationale on an equitable foundation. The court held that under the circumstances of this case, where the evidence available to the plaintiff is less than conclusive on the elements of negligence, asking the plaintiff to choose which evidentiary approach to pursue is unfair. Significantly, the court held that the plaintiff was not precluded from presenting a theory of recovery based on res ipsa loquitur when also presented a theory based on direct evidence of negligence. The two approaches are not mutually exclusive. 

The Supreme Court explained that the primary question that must be considered to determine whether a charge of res ipsa loquitur is appropriate is whether the plaintiff made out a prima facie showing of the factors outlined Section 328D found in the Restatement (Second) of Torts, namely: (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.

This case is significant in showing that it is important to consider the allegations of res ipsa loquitur presented by the plaintiffs early on. A plaintiff has no obligation to choose one theory of liability and thereby exclude other theories. This presents multiple avenues for plaintiffs to present their cases. Therefore, counsel should be prepared to contest allegations based on multiple theories early on in a lawsuit in order to make every effort take away additional option from plaintiffs. 

Case Law Alerts, 1st Quarter, April 2022 is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. Copyright © 2022 Marshall Dennehey Warner Coleman & Goggin, all rights reserved. This article may not be reprinted without the express written permission of our firm.