September 1, 2020

The Superior Court of Pennsylvania (“Pennsylvania Appellate Court”), in its opinion dated July 20, 2020, vacated the jury’s verdict in favor of the defendant anesthesiologist and remanded the case for a new trial, because the trial court erred to refusing to instruct the jury with regard to the doctrine of res ipsa loquitur.

The Pennsylvania Appellate Court further held that the trial court erred in permitting the defendant anesthesiologist to demonstrate on a mannequin during trial the proper performance of the procedure at issue, finding “the demonstration was conducted by Defendant Zepp rather than an expert witness was improper, unfairly prejudicial, and cannot be deemed harmless.”

The plaintiff underwent an emergency exploratory laparotomy and lysis of adhesions during which Defendant Zepp, a physician associated with defendant Anesthesia Associates, was the anesthesiologist for the surgery. Defendant Zepp’s responsibilities included the placement of a central line into the plaintiff’s jugular vein to facilitate the administration of intravenous fluids during the surgery.

Under the guidance of ultrasound, Defendant Zepp inserted a needle into what he believed was the jugular vein. He then slipped a small catheter over the needle. According to Defendant Zepp, he then used manometry to confirm that the catheter was in the vein. In performing manometry, the physician attaches a short piece of IV tubing to the small catheter and draws blood into the tubing. Then the physician lifts up the tubing so that he can observe the level to which the blood falls. When the catheter is properly located in the vein, the blood is expected to fall to about three and one-half inches above the site, matching the level of the pressure in the central venous system. Defendant Zepp maintained that he used manometry to confirm proper placement of the small catheter in the vein, and that the result was consistent with pressure in the venous system. He then inserted the guide wire, followed by the dilator, and a large bore catheter seven inches into the vessel, and stitched it securely in place.

Prior to administering any fluids, Defendant Zepp passed the ultrasound transducer over the catheter. It revealed that the catheter was located in the carotid artery rather than in the jugular vein, a complication known as arterial cannulation. Defendant Zepp abandoned the jugular vein as a central line site and called in a vascular surgeon for assistance. Although the bowel surgery was successful, the patient sustained a stroke that left her paralyzed on her left side, which is one of the recognized risks of arterial cannulation.

The patient’s daughter filed a Pennsylvania medical malpractice lawsuit on her mother’s behalf alleging that Defendant Zepp deviated from the standard of care in his performance of the central line procedure, and that his negligent cannulation of the patient’s carotid artery caused irreversible and permanent stroke injuries. The plaintiff asserted claims sounding in vicarious liability and corporate negligence against York Hospital and Anesthesiology Associates. However, when trial commenced on January 2, 2018, only vicarious liability claims based on the negligence of Defendant Zepp remained against York Hospital and Anesthesia Associates.

It was uncontested by the parties during trial that while the patient was sedated, Defendant Zepp inserted the central line into her carotid artery instead of her jugular vein. The patient’s carotid artery lay below the jugular vein. This anatomical orientation was obvious on ultrasound, and while it made central line placement more difficult, over fifty percent of patients over age sixty have the same orientation as the patient, and Defendant Zepp was familiar with it. Dynamic ultrasound, if used properly, permitted the anesthesiologist to see the tip of the needle and increased the likelihood that it was in the vein rather than the artery. It was agreed by the medical experts and Defendant Zepp that manometry, the technique whereby the pressure of the blood is measured prior to threading the wire, dilating, and inserting the large-bore catheter, is the “gold standard” for confirming that the small catheter is located in the vein rather than the artery. The experts agreed that it is rare that placement of a central line in the jugular vein results in cannulation of the carotid artery, a statistic supported by Defendant Zepp’s testimony that it had never occurred in the more than 500 procedures he had performed. Additionally, Defendant Zepp and his expert, as well as the plaintiff’s expert, Dr. James M. Pepple, agreed that inadvertent arterial cannulation increases the risk of stroke. Although the defense did not concede that the patient’s stroke was caused by the arterial cannulation, it did not introduce evidence of any other responsible cause. According to Dr. Pepple, the neurologist’s notes ruled out other medical explanations for the patient’s stroke.

Res Ipsa Loquitur

In addition to offering proof of specific negligence on the part of Defendant Zepp, the plaintiff sought to avail herself of the inference afforded by the evidentiary doctrine of res ipsa loqitur (“the thing speaks for itself”). Res ipsa loquitur is an evidentiary doctrine permitting the jury to infer negligence and causation from the mere occurrence of the event and the defendant’s relation to it. The doctrine allows a plaintiff to satisfy her burden of producing evidence of a defendant’s negligence by proving that she has been injured by a casualty of a sort that normally would not have occurred in the absence of the defendant’s negligence. The inference provides reasonable evidence, in the absence of an explanation by the defendant, that the accident arose from his negligence. The strength of the inference depends on the evidence presented, but ranges from reasonable probability to practical certainty. Where different conclusions can be reached, it is the jury’s function to determine whether the inference is to be drawn.

The doctrine of res ipsa loquitur, as adopted by the Supreme Court of Pennsylvania, provides: (1) It may be inferred that harm suffered by the plaintiff is caused by negligence of the defendant when (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. (2) It is the function of the court to determine whether the inference may reasonably be drawn by the jury, or whether it must necessarily be drawn. (3) It is the function of the jury to determine whether the inference is to be drawn in any case where different conclusions may reasonably be reached. Restatement (Second) of Torts § 328D (1964).

Before a plaintiff can rely upon res ipsa loquitur, she must establish all three elements of § 328D(1) by producing evidence which will permit the conclusion that it is more likely than not that her injuries were caused by the defendant’s negligence. At that juncture, the trial court may look at all the evidence to determine if reasonable minds could reach different conclusions regarding the negligence of the defendant. If so, it is for the jury to determine whether to draw the inference. It is only when there is no issue of fact as to the existence of any of the conditions necessary in order to apply res ipsa loquitur that the court may withdraw the issue from the jury or direct the jury to draw the inference of negligence.

The Pennsylvania Appellate Court stated: “The proper way to insert a central line into a jugular vein, and the consequences of errant placement in the artery are not within the common knowledge of laypersons. Thus, in order to proceed on a res ipsa theory, Plaintiff was required to introduce expert medical testimony that the event that occurred herein, arterial cannulation, ordinarily would not have occurred absent negligence. In addition, she had to rule out other responsible causes for the event in order to meet the requirement of § 328D(1)(b). Finally, she had to establish that the negligence occurred within the scope of Defendant Zepp’s duty to [the patient].”

In the case it was deciding, the Pennsylvania Appellate Court stated, “Plaintiff produced testimony that cannulation of the artery did not usually occur in the absence of negligence when the procedure was performed with manometry, as maintained by Defendant Zepp. Such testimony was sufficient to meet the first element of res ipsa loquitur: that arterial cannulation as occurred herein does not ordinarily happen in the absence of negligence.”

As to the second element of res ipsa, eliminating other persons or causes as responsible for the harm, the Pennsylvania Appellate Court stated that Defendant Zepp ruled out the conduct of others as responsible causes of the event; that neither Defendant Zepp nor his expert offered any explanation as to how, given this scenario, the large bore catheter ended up in the patient’s carotid artery instead of her jugular vein; and, Dr. Pepple testified regarding the likely connection between Defendant Zepp’s arterial cannulation and the patient’s stroke, including the fact that the patient immediately sustained a stroke of the middle cerebral artery, directly upstream from the site of the arterial cannulation, and the neurologist had eliminated other embolic causes of the stroke, including embolic phenomena from the heart.

The Pennsylvania Appellate Court stated, “Finally, the third element of res ipsa, that the indicated negligence was within the scope of Defendant Zepp’s duty to the patient, was not disputed.”

The Pennsylvania Appellate Court held: “We find that Plaintiff offered evidence satisfying all three elements for the application of the doctrine of res ipsa loquitur. At that juncture, the court was charged with determining whether reasonable minds could differ. Critically, 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 [the patient’s] injury that would dissolve the inference … Nor is reliance upon res ipsa foreclosed because Plaintiff’s medical expert also offered evidence of specific negligence … 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.”

Source Lageman v. Zepp, 2020 PA Super 172.

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