HARRISBURG – After a recent ruling from a divided Supreme Court of Pennsylvania, medical malpractice lawsuit juries are now permitted to consider both direct and circumstantial evidence.
In a split decision reached Dec. 22, plaintiffs can cite the res ipsa loquitur doctrine, which allows for assumption of injuries as a result of negligence, in circumstances where such plaintiffs can prove that the doctrine is but one way to determine liability.
State Supreme Court Justices David N. Wecht, Debra Todd, Christine Donohue, Kevin M. Dougherty and Sallie Updyke Mundy, constituting the Court’s majority, spoke of unfairness in forcing plaintiffs to choose between ways to approach evidence in proving their cases, in the ruling authored by Wecht.
“In a case like this, 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,” Wecht stated.
Plaintiff Elizabeth H. Lageman underwent an emergency laparotomy at York Hospital in 2012. During surgery, anesthesiologist, John Zepp IV misplaced a central venous pressure line. This error later caused Lageman to suffer multiple strokes and have little or no movement on her left side.
As a result, Lageman sued both Zepp and York Hospital for medical malpractice.
Lageman’s expert witness, Dr. James M. Pepple, testified at trial that proper care from Zepp would have prevented Lageman’s injuries entirely, while the defense’s expert witness, Dr. Mark E. Hudson, said Zepp followed proper protocol.
While Lageman argued she had prima facie evidence entitling her to the res ipsa loquitur jury instruction, the trial court disagreed. Without such instruction, the jury found in favor of the defendant, and the plaintiff appealed to the Superior Court of Pennsylvania.
The Superior Court saw the case differently and reversed the York County Court of Common Pleas decision to omit res ipsa loquitur, leading Zepp and the hospital defendants to appeal to the state Supreme Court.
But the state Supreme Court ruled Lageman had in fact demonstrated a proper prima facie case, which the Court explained should be the primary criteria to determine whether res ipsa loquitur comes into play.
The Court added medical malpractice cases often require nuance to examine.
“We cannot fairly hold that res ipsa loquitur may be invoked in complex, medical malpractice cases requiring expert testimony, then subject the doctrine to an oversimplified view of the interplay of direct and circumstantial evidence. Medical malpractice cases, in particular, are seldom he-said she-said battles of credibility among first-hand lay witnesses,” Wecht stated.
“They typically require the benefit of expert witnesses with specialized knowledge to contextualize events, speak to the complex processes that, for example, may connect an arterial cannulation involving penetration of the aortic chamber to a stroke in the brain and render opinions that, more often than not, are inferential.”
Chief Justice Max Baer wrote both a concurring and dissenting opinion.
While Baer believed both evidence-based approaches are fair game in the courtroom, he disagreed with the feeling that Lageman established a prima facie case that required a jury to receive the res ipsa loquitur instruction.
“Classic examples of the proper invocation of res ipsa are the barrel rolling from the building, the sponge left inside the surgical patient’s abdomen or animal remains found inside a can of food. It should be readily acknowledged that none of these events ordinarily occur in the absence of negligence,” Baer said.
“Here, there appears to be no real dispute that the stroke suffered by Lageman was the result of an arterial cannulation, which occurred when, in an attempt to monitor Lageman’s condition during an emergency exploratory laparotomy, Dr. Zepp, an anesthesiologist, inserted a central venous pressure line into the carotid artery, as opposed to the internal jugular vein where it belonged. Critically, however, at trial, a dispute arose as to whether arterial cannulation is an event of the kind that ordinarily does not occur in the absence of negligence.”
Baer referred to the action as “a classic case where two versions of the same story were properly presented to the jury without presumptions, in favor or against, either party.”
Justice Thomas G. Saylor dissented from the majority.
According to Saylor, Lageman already had an opportunity to prove her case and, in his view, the majority did not consider the ripple effects of the issuance of a res ipsa loquitur jury instruction in medical malpractice cases.
“I believe that [Lageman] had a full and fair opportunity to make her case of medical negligence to the jury, supported by the creditable expert testimony that she offered. I do not see that she is any way being punished by the recognition that the medical malpractice field is a particularly inapt one in which to judicially mandate jury instructions, on an expansive basis, that alleviate the obligation to prove negligence to support liability,” Saylor said.
“The majority, however, doesn’t ground its approach in any empirical information, for example, assessing the effects of such instructions on jury verdicts. Indeed, the concerns of the medical community that judicial authorization of the inference will foster confusion among jurors, unduly increase the cost of medical services, and serve to undermine the quality of health care in the Commonwealth, do not seem to me to have been assessed in any meaningful fashion.”
Supreme Court of Pennsylvania case 21 MAP 2021
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com