January 25, 2022

In its opinion dated December 22, 2021, the Supreme Court of Pennsylvania Middle District (“Pennsylvania Supreme Court”) stated in a medical malpractice case it was deciding: “res ipsa loquitur boils down to this: Under certain circumstances a plaintiff may turn to the jury and ask, “What else could this be but malpractice?” In the interests of justice, and given the philosophical underpinnings of tort law and the jury system generally, this grants the jury latitude to fulfill its function. Over time, this Court has expanded the Doctrine incrementally until it now reaches most areas of tort law, provided its threshold conditions are satisfied. Where it applies, the jury may conclude that “this,” the cause of injury, could be nothing else but a breach of a duty of care resulting in harm.”

A res ipsa loquitur case is ordinarily merely one kind of case of circumstantial evidence, in which the jury may reasonably infer both negligence and causation from the mere occurrence of the event and the defendant’s relation to it.

The Pennsylvania Supreme Court stated: “It has long been the law of Pennsylvania that a plaintiff has no obligation to choose one theory of liability to the exclusion of another … 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. This is not analogous to submitting two incompatible claims to a jury. Lageman has stated one straightforward claim and has submitted evidence in an effort to meet her burden of proof. The evidence that does not establish a basis for the Instruction cannot simply cancel out the evidence that does. Nor should plaintiff’s presentation of conflicting categories of evidence—not evidence that is inconsistent, but merely qualitatively different—force her to abandon any evidentiary approach to proving her claim as to which she has made out a prima facie case.”

“In an ideal world, the jury receives as much probative evidence as there is and no plaintiff is punished for successfully providing prima facie evidence sufficient to establish a basis for a finding of liability under the res ipsa loquitur doctrine. As with any other showing, if it satisfies the bare minimum requirements to support a given instruction, that instruction should be given. If there is first-hand evidence to support a negligence claim, the jury should be so charged. If there is indirect, circumstantial evidence to cover gaps in the (more) direct evidence, and that evidence constitutes a prima facie showing under Section 328D, the jury should be so charged. This will only disadvantage a defendant as to whom the claim becomes more facially meritorious as more competent evidence emerges—as, perhaps, it should.”

“That leaves us only with the question whether Lageman made out a prima facie case to support a res ipsa loquitur instruction. Like the Superior Court, we conclude that she did. Pepple, a qualified and credible expert, testified in no uncertain terms that this event ordinarily cannot happen without negligence on the part of the provider. Thus, Pepple’s testimony by itself comprises prima facie evidence as to that proposition.”

“Causation makes out a closer question, but notwithstanding the credible cardiac event counternarrative advanced by Hudson, whether that theory was more credible than Lageman’s stroke-by-cannulation theory is a jury question. In arguing otherwise, Zepp seems to want the trial court to assess the exclusion of other causes before going to a jury. But it is plain that the trial court must yield to the jury as soon as the plaintiff makes a threshold showing. With both experts acknowledging the association between arterial cannulation and stroke, there can be no serious question that Lageman succeeded, entitling her to a jury determination.”

“The question that must drive when the Instruction is warranted hinges entirely upon whether the plaintiff has made out a prima facie showing as to the Section 328D factors, not whether the defense has a credible counternarrative or plaintiff also has made out a plausible basis for recovery without resort to that doctrine. In effect, the two run in parallel toward the same destination, and if either arrives, the plaintiff recovers. There is nothing more in this approach than the assurance that, with the sum of the available information, a jury of the parties’ peers has rendered a just verdict.”

Source Lageman v. Zepp, J-60-2021.

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