Res Ipsa Loquitur in Medical Malpractice Actions: New Pennsylvania Appellate Case Speaks for Itself

This past summer, the Pennsylvania Superior Court revisited the legal concept of res ipsa loquitur, “the thing speaks for itself,” in the context of a medical malpractice case. Claims of res ipsa are not common in medical malpractice cases in Pennsylvania, and many lawyers who practice in this area may not have given much thought to the concept of res ipsa loquitur since law school. However, res ipsa does occasionally arise in the medical malpractice setting. In the case of Lageman, by and through Lageman v . Zepp, 237 A.3d 1098 (Pa. Super. 2020), the Superior Court confirmed the suitability of res ipsa in actions involving medical negligence, even when a traditional cause of action for negligence is also alleged.

In Lageman, the Superior Court reiterated the basic tenets of the theory of res ipsa loquitur. The court stated that a plaintiff must do the following to proceed on this theory: (1) introduce expert medical testimony that the event which occurred ordinarily would not have occurred in the absence of negligence; (2) rule out other responsible causes of the event in order to meet the requirements of Restatement (Second) of Torts § 328D(1)(b); and (3) establish that the negligence occurred within the scope of a physician’s duty to a plaintiff.

In the Lageman case, Elizabeth Lageman underwent an emergency exploratory laparotomy. Dr. Zepp was the anesthesiologist for the surgery, and his responsibilities included placing a central line into Mrs. Lageman’s jugular vein for the administration of fluids. However, Dr. Zepp had actually placed the catheter in Mrs. Lageman’s carotid artery, a complication known as arterial cannulation. Although the surgery was successful, Mrs. Lageman suffered a stroke that left her paralyzed on her left side. Such strokes are a known risk of arterial cannulation. Mrs. Lageman’s daughter and attorney-in-fact filed a complaint in medical negligence on behalf of her mother, alleging that Dr. Zepp had deviated from the standard of care when placing the central line and that his negligent cannulation caused her mother to suffer irreversible and permanent stroke injuries. At trial, the plaintiff pursued two different avenues to make out a prima facia case of negligence: expert testimony that Dr. Zepp had acted negligently and the inference of negligence afforded by the doctrine of res ipsa loquitur. The plaintiff presented a proposed point for charge on res ipsa loquitur, which the trial court refused to give to the jury, stating it was not the type of case in which it was obvious that the doctrine applied. Thus, the jury was not instructed that it could infer that the harm suffered by Mrs. Lageman was caused by Dr. Zepp’s negligence. The jury returned a defense verdict, specifically finding no negligence on the part of the physician. Lageman appealed, and the Superior Court agreed with Lageman, holding that all three elements of res ispa loquitur were established.

Several points in the Superior Court’s opinion are noteworthy for medical malpractice defense practitioners.

First, expert testimony rendered to a reasonable degree of medical certainty that the event (in Lageman’s case, the arterial cannulation) does not ordinarily occur in the absence of negligence is more than sufficient to permit the conclusion that it is more likely than not that a plaintiff’s injuries were caused by a medical defendant’s negligence.

Second, once a plaintiff sets forth evidence satisfying all three elements of the doctrine of res ipsa loquitur, a trial court must determine whether reasonable minds could differ. Critically, in Lageman, Dr. Zepp did not offer any non-negligent explanation for the arterial cannulation. Dr. Zepp also did not offer any evidence that some other cause was at least equally likely to have caused Mrs. Lageman’s injury so as to resolve the res ipsa inference that the harm suffered by her was caused by the doctor’s negligence.

Third, Lageman’s reliance on the theory of res ipsa was not barred simply because she also offered evidence of specific negligence. A plaintiff will be permitted to proceed on a theory of res ipsa loquitur, and a jury must be instructed on such, if the elements of the doctrine are satisfied, even though there is also sufficient evidence in the way of expert testimony to support a traditional claim of medical negligence.

It is difficult to say at this point whether the holding in Lageman will lead to plaintiffs bringing more cases in which, in addition to traditional claims of medical malpractice, they also assert res ipsa loquitur. After all, Pennsylvania has allowed medical malpractice actions involving res ipsa for many years, yet such actions are still relatively rare. However, based on Lageman, if plaintiffs do start relying more on the doctrine of res ipsa, it will be more challenging for defendants and the attorneys representing them to prevent medical malpractice claims based on res ipsa from getting to a jury.

*Bethany is an associate who works in our Erie, Pennsylvania office. She can be at 814.480.7817 or bablood@mdwcg.com.

_{Defense Digest, Vol. 27, No. 2, March 2021 is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent legal 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. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2021 Marshall Dennehey Warner Coleman & Goggin. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact tamontemuro@mdwcg.com.}