J-A11014-19

                              2020 PA Super 172

ELIZABETH H. LAGEMAN, BY AND                        IN THE SUPERIOR COURT
THROUGH HER POWER OF ATTORNEY                          OF PENNSYLVANIA
AND DAUGHTER, ADRIENNE LAGEMAN

                          Appellant

                     v.

JOHN ZEPP, IV, D.O.; ANESTHESIA
ASSOCIATES OF YORK, PA, INC.; YORK
HOSPITAL; AND WELLSPAN HEALTH,
T/D/B/A YORK HOSPITAL

                          Appellee                     No. 756 MDA 2018


              Appeal from the Judgment Entered May 10, 2018
               In the Court of Common Pleas of York County
                 Civil Division at No: 2014-SU-000846-82


BEFORE: BOWES, OLSON, and STABILE, JJ.

DISSENTING OPINION BY STABILE, J.:                       FILED JULY 20, 2020

      The Majority concludes that a new trial is warranted because the trial

court abused its discretion by refusing to deliver a res ipsa loquitur instruction

and by permitting the defense to use a demonstrative mannequin during trial.

A res ipsa loquitur instruction properly was denied where Appellant presented

direct evidence of negligence thereby obviating the need to rely upon the aid

of an inference of negligence provided by a res ipsa loquitur instruction. The

instruction was also properly denied where the record does not support a

finding that any expert unequivocally testified Appellant’s harm does not

ordinarily occur in the absence of negligence. I further believe the trial court

did not abuse its discretion by permitting the defense use of a demonstrative
J-A11014-19


mannequin where it was the trial court’s judgment such use aided the jury in

understanding the medical issue in this case. I respectfully dissent.

      As this Court explained in D’Ardenne v. Strawbridge & Clothier,

Inc., 712 A.2d 318 (Pa. Super. 1998), “Where there is no direct evidence

to show cause of the injury, and the circumstantial evidence indicates that the

negligence of the defendant is the most plausible explanation for the injury,

the [res ipsa loquitur] doctrine applies.” Id. at 321 (quoting Prosser & Keeton

on the Law of Torts § 40, at 257 (5th ed. 1984) (emphasis added, additional

citation omitted)). Because this was a case with direct evidence of Dr. Zepp’s

negligence, I find this case did not warrant a res ipsa loquitur instruction.

      In Toogood v. Rogal, 824 A.2d 1140 (Pa. 2003) (plurality), Justice

Newman explained:

      Res ipsa loquitur is neither a doctrine of substantive law nor a
      theory of recovery; rather, it is a rule of circumstantial
      evidence. Nor is this doctrine to be employed simply because
      the treatment caused injury or failed to yield the expected result.
      Courts have continually stated that an injury alone is insufficient
      to prove negligence in medical malpractice cases.

      The doctrine of res ipsa loquitur allows plaintiffs, without direct
      evidence of the elements of negligence, to present their case
      to the jury based on an inference of negligence. The key to the
      doctrine is that a sufficient fund of common knowledge exists
      within a jury of laypersons to justify raising the inference.
      Instead of directly proving the elements of ordinary
      negligence, the plaintiff provides evidence of facts and
      circumstances surrounding his injury that make the
      inference of the defendant’s negligence reasonable. “The
      gist of res ipsa loquitur . . . is the inference, or process of
      reasoning by which the conclusion is reached. This must be based
      upon the evidence given, together with a sufficient background of
      human experience to justify the conclusion. It is not enough

                                      -2-
J-A11014-19


      that plaintiff’s counsel can suggest a possibility of
      negligence.” Prosser & Keeton, The Law of Torts § 39, p. 243
      (5th ed. 1995). This theory relieves the plaintiff of having
      to prove causation directly.

Id. at 1146 (emphasis added).

      Justice Newman also provided historical perspective on the application

of res ipsa loquitur in Pennsylvania, noting § 328D of the Restatement

(Second) of Torts first was adopted in Gilbert v. Korvette, Inc., 327 A.2d

94 (Pa. 1974), and extended to medical malpractice cases in Jones v.

Harrisburg Polyclinic Hosp., 437 A.2d 1134 (Pa. 1981), where both parties

presented expert testimony, but the plaintiff’s expert causation testimony was

deficient.   Toogood, 824 A.2d at 1147-48. Concluding that expert medical

testimony should no longer be a requirement in all medical malpractice cases,

the Jones Court announced:

      Section 328D is fashioned to reach all instances where negligence
      may properly be inferred and its applicability is not necessarily
      precluded because the negligence relates to a medical procedure.
      The section establishes criteria for determining circumstances
      wherein the evidentiary rule of res ipsa loquitur may become
      operative in providing the inference of negligence. It is premised
      upon a recognition that certain factual situations demand such an
      inference.
                                   ***
      [S]ection 328D provides two avenues to avoid the production
      of direct medical evidence of the facts establishing liability:
      one being the reliance upon common lay knowledge that the
      event would not have occurred without negligence, and the
      second, the reliance upon [expert] medical knowledge that the
      event would not have occurred without negligence.

Jones, 437 A.2d at 1138 (emphasis added).




                                    -3-
J-A11014-19


      The evidentiary rule of res ipsa loquitur, which permits an inference of

negligence where direct evidence is not capable of being produced, is justified

upon the rationale that certain cases demand such an inference because some

events simply do not occur in the absence of negligence. Where, however, a

plaintiff is capable of introducing direct evidence of negligence and resulting

harm, there is no need to invoke an inference to bridge the gap between the

harm suffered and the antecedent negligent act. To do so allows a plaintiff to

present direct evidence of negligence and then have the court instruct a jury

that the direct evidence is entitled to an inference of negligence. Doing so

impermissibly bolsters a plaintiff’s direct proof and imparts an imprimatur of

liability by the court to a direct case of proof. It also is inconsistent in my

view to both instruct a jury to weigh a plaintiff’s direct proof of negligence and

instruct them negligence may be inferred because the event ordinarily does

not occur in the absence of negligence. In essence, on the one hand, a jury

is told to consider the direct evidence, but then on the other hand, is told that

because there is no direct evidence of negligence they may employ an

inference of negligence that may be rebutted by the defense. Simply stated,

the aid offered by a res ipsa loquitur instruction to infer negligence when direct

proof is not available—but when the circumstances of a case compel such an

inference, is simply not necessary when a plaintiff is capable of identifying and

producing direct evidence of negligence, such as in the instant case.

Moreover, expanding res ipsa loquitur to cases like that presently before us


                                      -4-
J-A11014-19


would virtually guarantee precedent that the charge may be given in every

malpractice case despite direct proof of negligence. The purpose of the rule

would be completely lost in translation.

      I believe my review of cases comports with the application of res ispa

loquitur in this Commonwealth as applied in medical malpractice cases.

      The Jones Court recognized two such instances where the inference

allowed by res ipsa loquitur is permitted. This first “avenue” is traveled in

cases that rely on common lay knowledge.           For example, Fessenden v.

Robert Packer Hosp., 97 A.3d 1225 (Pa. Super. 2014), a “proverbial ‘sponge

left behind’ case,” reflects the prototypical application of res ipsa loquitur. Id.

at 1233 (citing Jones, 437 A.2d at 1138 n. 11) (“[T]here are other kinds of

medical malpractice, as where a sponge is left in the plaintiff’s abdomen after

an operation, where no expert is needed to tell the jury that such events do

not usually occur in the absence of negligence.”); Robinson v. Wirts, 127

A.2d 706, 710 (Pa. 1956) (stating that no expert testimony is necessary in

“cases where . . . a gauze pad is left in the body of a patient following an

operation”)). As we explained in Fessenden:

      A narrow exception to the requirement that medical malpractice
      claims be supported by expert testimony applies in instances of
      obvious negligence, i.e., circumstances in which the medical and
      factual issues presented are such that a lay juror could recognize
      negligence just as well as any expert. Jones[, 437 A.2d at 1137].
      In such instances, the doctrine of res ipsa loquitur allows a fact-
      finder to infer from the circumstances surrounding the injury that
      the harm suffered was caused by the negligence of the defendant.

Fessenden, 97 A.3d at 1230.

                                       -5-
J-A11014-19



        Although there was no item left behind in Quinby v. Plumsteadville

Family Practice, Inc., 907 A.2d 1061 (Pa. 2006), a res ipsa instruction was

similarly warranted. In Quinby, a paraplegic was left unaccompanied and

unrestrained on an examination table in a medical office following removal of

a lesion from his left temple. He fell from the table and sustained injuries that

purportedly resulted in his death. There was no explanation for Quinby’s fall

beyond the medical practice’s negligence. Because “the fall is not the type of

event that occurs in the absence of negligence, and [] there is no explanation

other than [the practice’s] negligence for the fall,” the trial court should have

charged the jury on the doctrine of res ipsa loquitur. Quinby, 907 A.2d at

1073.

        As the Court observed in Quinby,

        Upon close analysis, it is apparent that res ipsa loquitur provides
        no assistance to a plaintiff’s obligation to demonstrate a
        defendant’s duty, that a breach of that duty was a substantial
        factor in causing plaintiff harm, or that such harm resulted in
        actual damages. However, res ipsa loquitur does aid a
        plaintiff in proving a breach of duty. While res ipsa loquitur is
        useful in this limited regard, case law universally refers to res ipsa
        loquitur as raising an inference of “negligence” rather than an
        inference of “breach of duty.”

Id. at 1071 n.15 (emphasis added). While the Court indicated it would “abide

by this typical nomenclature and refer to res ipsa loquitur as ‘raising an

inference of negligence[,]’” its comment is instructive in recognizing which

element of a prima facie case of negligence is at issue when examining

application of the doctrine.

                                        -6-
J-A11014-19


      With respect to the second “avenue” referenced in Jones, that avenue

is available in certain cases that involve more complex factual scenarios and

require expert testimony. Again, absent direct evidence of negligence, res

ipsa permits an inference of negligence if the evidence, coupled with “sufficient

background of experience,” justifies the conclusion. See Prosser & Keeton,

The Law of Torts § 39, p. 243 (5th ed. 1995). The sponge left in the abdomen

is the prototypical example. However, in a case involving complex medical

issues that are not within the jury’s common fund of knowledge, the plaintiff

can attempt to establish a res ipsa case through expert testimony indicating,

inter alia, that the event at issue would not ordinarily occur in the absence of

negligence. Stated differently, if a plaintiff does not have expert testimony to

establish a prima facie case of negligence based on direct evidence, then—

and only then—does the question arise as to whether res ipsa should apply.

In the absence of direct evidence of negligence, the jury can then weigh the

plaintiff’s “indirect,” i.e., circumstantial, evidence of negligence in conjunction

with the expert’s opinion that the event would not occur in the absence of

negligence. The jury would then be in a position to use the res ipsa inference

of negligence when deciding whether the plaintiff has proven a case by a

preponderance of the evidence, assuming the remaining two elements of

§ 328D(1) are similarly satisfied. However, that inference should be available

only in cases where there is no direct evidence of negligence. Allowing it in

instances when the plaintiff has established a prima facie case of negligence


                                       -7-
J-A11014-19


supported by direct evidence would, as noted above, virtually guarantee

precedent that the charge may be given in every malpractice case despite

direct proof of negligence.

      Our Supreme Court has considered the application of res ipsa loquitur

in complex medical cases that are outside a jury’s common fund of knowledge.

For example, in Jones, the plaintiff experienced suprascapular nerve palsy,

i.e., intense pain in her neck, shoulder and arm, following a gynecological

procedure. Jones filed suit claiming negligence and a jury found her surgeon

negligent based on res ipsa loquitur. The trial court denied the surgeon’s post-

trial motions. On appeal, this Court determined the case warranted a res ipsa

loquitur analysis, despite plaintiff’s inability to “aver the precise conduct of the

named defendants because she was unconscious during treatment, although

the circumstantial evidence points toward the negligence of one of more of

the parties sued.” Jones v. Harrisburg Polyclinic Hosp., 410 A.2d 303,

306 (Pa. Super. 1979), rev’d, Jones, 437 A.2d 1134 (Pa. 1981). This Court

nevertheless reversed and granted the surgeon a new trial, finding a res ipsa

loquitur instruction was not warranted because the plaintiff had not eliminated

other responsible causes as required under § 328D(1)(b).

      The Supreme Court reversed our decision, concluding the plaintiff was

entitled to an inference of negligence in light of uncontradicted expert

testimony that surprascapular nerve palsy does not ordinarily occur during

gynecological procedures in the absence of negligence. Jones, 437 A.2d at


                                       -8-
J-A11014-19


1139. The Supreme Court also rejected this Court’s analysis of § 328D(1)(b),

stating the subsection does not preclude joint responsibility. Therefore, it is

not necessary for a plaintiff to “eliminate the ‘responsible cause’ of one in

order for the requirements of section 328D(1)(b) to be met as to the other.”

Jones, 437 A.2d at 1140.

      As reflected in the above-quoted language from this Court’s opinion,

there is no suggestion Jones presented any direct, rather than circumstantial,

evidence of negligence on the part of the surgeon. The lack of direct evidence

is further corroborated by the Supreme Court’s statement that “[t]he theories

of liability asserted against [the surgeon] were those of lack of informed

consent and negligence, through the application of the rule of res ipsa loquitur.

The jury rejected the lack of informed consent theory in reaching its verdict

against [the surgeon].” Id. at 1136.

      In Hightower-Warren v. Silk, 698 A.2d 52 (Pa. 1997), the plaintiffs’

decedent underwent total removal of her thyroid.              She subsequently

experienced hoarseness that was attributed to paralysis of her vocal cord. The

trial court initially entered a nonsuit, finding she could not proceed to the jury

on the basis of res ipsa loquitur because her expert’s testimony “was too

speculative to establish a causal connection between [defendant’s] surgical

treatment and [decedent’s] vocal cord paralysis.”         Id. at 53.     Plaintiffs

requested a new trial, contending their expert’s testimony was sufficient to

proceed under a theory of res ipsa loquitur. The trial court denied plaintiffs’


                                      -9-
J-A11014-19


motion, ruling that the expert’s testimony failed to satisfy either of the first

two elements of § 328D. We affirmed the trial court’s ruling. The Supreme

Court reversed, finding that this Court erred in failing to follow the non-suit

standard1 and that plaintiffs satisfied all three elements of § 328D. Therefore,

plaintiffs were entitled to proceed to the jury under the res ipsa doctrine.

While it is not clear whether plaintiffs initially pursued any claims based on

direct evidence of negligence, it is clear that the case was sent back to the

trial court to proceed on a res ipsa loquitur theory only.

       A common thread between Jones and Hightower-Warren is the fact

the claimed injury involved a part of the body that was not directly involved

in the patient’s surgical procedure. In each case, the plaintiff introduced some

evidence suggesting, but not directly proving, causation. In D’Ardenne, this

Court characterized such evidence as falling into a “grey zone,” noting

“Pennsylvania courts have thus concluded that where the evidence in the case

falls within the grey zone, a factual realm in which a plaintiff presents as



____________________________________________


1 Unlike the case before us, which involves an abuse of discretion standard of
review, Hightower-Warren was an appeal from the entry of non-suit.

       It is well-established that a compulsory non-suit may be entered
       only when the plaintiff cannot recover under any view of the
       evidence, with every doubt resolved against its entry and all
       inferences drawn most favorably to the plaintiff. Moreover, a
       plaintiff must be given the benefit of all favorable testimony and
       all reasonable inferences drawn therefrom.

Hightower-Warren, 698 A.2d at 54 (quotation and citation omitted).

                                          - 10 -
J-A11014-19


specific a case of negligence as possible, yet is unable to demonstrate the

exact cause of the accident, plaintiff is entitled to a res ipsa loquitur charge.”

D’Ardenne, 712 A.2d 324-25 (emphasis in original, internal citations and

quotations omitted).

      This Court discussed evidence falling in the “grey zone” in Smith v. City

of Chester, 515 A.2d 303, 306 (Pa. Super. 1986), noting:

      While it is true that a res ipsa loquitur instruction is not warranted
      in the face of clear and indubitable proof of negligence, it is also
      true that a res ipsa loquitur charge is appropriate where the facts
      of a case lie somewhere in a grey zone “between the case in which
      the plaintiff brings in no evidence of specific acts of negligence,
      and therefore must rely on the res ipsa loquitur inference alone,
      and the case in which the defendant’s negligence ‘can be clearly
      and indubitably ascertained’ from the plaintiff's evidence, Farley
      v. Philadelphia Traction Company, 132 Pa. 58, 18 A. 1090
      (1890), and therefore the plaintiff need not rely on the res ipsa
      loquitur inference at all.” Hollywood Shop, Inc. v. Pa. Gas &
      Water Co., 270 Pa. Super. 245, 252–53, 411 A.2d 509, 513
      (1979).

Id. at 306 (Pa. Super. 1986) (emphasis in original). Here, the evidence can

be clearly and indubitably ascertained through Dr. Pepple’s expert testimony

that Dr. Zepp negligently inserted a central venous pressure (“CVP”) line

causing Mrs. Lageman’s arterial cannulation, in turn causing her stroke.

Therefore, this is not a case where the evidence falls into the grey zone. Mrs.




                                     - 11 -
J-A11014-19


Lageman did not need to rely on, and was not entitled to, a res ipsa loquitur

inference and charge.2

       In MacNutt v. Temple University Hospital, Inc., 932 A.2d 980, 986

(Pa. Super. 2007) (en banc), the plaintiff claimed he suffered a chemical burn

to his shoulder during surgery to treat his thoracic outlet syndrome.      The

defense presented testimony suggesting plaintiff had shingles, not a chemical

burn. The trial court precluded plaintiffs from proceeding on the theory of res

ipsa loquitur because plaintiffs “had produced adequate evidence to support a

cause of action based on a standard theory of negligence without relying on a

theory of res ipsa loquitur.” Id. at 984 (quoting Trial Court Opinion, 6/24/15,

at 1-2).    On appeal, we affirmed, holding that the trial court “properly

precluded [plaintiffs] from presenting their case at trial under the res ipsa

loquitur doctrine.” Id. at 983.



____________________________________________


2 The Majority suggests our Supreme Court sanctioned giving a res ipsa charge
in Quinby despite “sufficient direct evidence of negligence from plaintiff’s
expert to make out a prima facie case[.]” Majority Opinion at 28 (emphasis
added). However, that Court recognized that res ipsa is a “simple matter of
circumstantial evidence.” Quinby, 907 A.2d at 1071 (quoting WILLIAM L.
PROSSER, LAW OF TORTS §§ 39, 40 (4th ed.1971). I submit the evidence of
negligence in Quinby was circumstantial, not direct. A quadriplegic was left
unattended on an examination table—either on his side or on his back—and
fell to the floor. No one observed the fall and no one could explain how or
why he fell from the table. Dissimilarly here, Dr. Zepp admitted that he
inserted the CVP line through its intended destination—the jugular vein—and
into the carotid artery. The question was simply whether he was negligent for
doing so. Despite direct evidence of the errant location of the catheter, the
jury concluded he was not negligent.


                                          - 12 -
J-A11014-19


       This Court once again recognized, “The doctrine of res ipsa loquitur is a

rule of circumstantial evidence which allows plaintiffs, without direct

evidence of the elements of negligence, to present their case to the jury

based on an inference of negligence.” Id. at 986 (emphasis added). Not only

was there direct evidence of negligence, but also there was a “difference of

opinion on the nature of [plaintiff’s] injury as well as the competent evidence

of another possible cause for the injury.” Id. at 991. These factors “created

a factual dispute regarding whether [plaintiff’s] injury was outside the scope

of [defendants’] duty to appellant.” Id. (citation omitted). Consequently,

       [Plaintiffs] did not satisfy the necessary factors under the
       Restatement to proceed under the doctrine of res ipsa loquitur.
       Accordingly, we hold this case was not in reality a res ipsa loquitur
       case, and the court's decision to deny [plaintiffs] a new trial on
       this ground must stand. . . . [W]e hold the court properly
       precluded [plaintiffs] from presenting their medical malpractice
       case at trial based on a res ipsa loquitur theory of negligence.

Id. at 991-92 (citations omitted).3




____________________________________________


3 On appeal, the plaintiffs argued (1) trial court error for not allowing them to
prove negligence through res ipsa loquitur and (2) trial court error for refusing
to instruct the jury on res ipsa loquitur. This Court considered the two issues
together, devoting much of its analysis to whether the plaintiffs satisfied the
elements of § 328D, and concluding they did not satisfy either § 328D(1)(a)
or (b). MacNutt, 932 A.2d at 990-91.            While the Court did not devote
significant separate analysis to the plaintiffs’ entitlement to prove negligence
through res ipsa loquitur, the Court—as reflected above—ultimately
determined that the trial court properly precluded plaintiffs from presenting
their case on a res ipsa loquitur theory of negligence. Id. at 991-92.



                                          - 13 -
J-A11014-19


       My review of the case before us leads me to conclude that this case, just

as MacNutt, is one in which the plaintiff produced direct evidence to support

a negligence cause of action without the need to rely on res ipsa loquitur. As

in MacNutt, the case before us is a case with expert testimony demonstrating

the exact cause of the incident rather than circumstantial evidence of

negligence. As such, it is not a res ipsa loquitur case.

       I offer the following factual summary in support of my conclusion. Mrs.

Lageman filed suit alleging that Dr. Zepp, the anesthesiologist assigned to her

surgery, negligently inserted a CVP line, also known as a catheter, into her

carotid artery resulting in a stroke that left her partially paralyzed. At trial,

she first called Dr. Zepp as a witness as on cross-examination.        Dr. Zepp

explained the procedure he employed for insertion of a CVP line. Notes of

Testimony, Trial (“N.T.”) at 166-80.           He admitted that in the course of

inserting the CVP line, the catheter went through the walls of its intended

destination (the jugular vein) and into Mrs. Lageman’s carotid artery. Id. at

181.4 He acknowledged that placing a CVP line into the artery can increase

the risk of stroke and that Mrs. Lageman did suffer a stroke. Id. at 185-86,

189.    When asked if “operator error” was the only explanation for what

happened, he replied that the steps he took to confirm the catheter was in the



____________________________________________


4 In his opening statement, Dr. Zepp’s counsel explained to the jury that the
technical term for “when a catheter is placed in an artery rather than a vein”
is “arterial cannulation.” Id. at 138.

                                          - 14 -
J-A11014-19


proper location were the same steps he takes in the placement of every CVP

line and stated, “I’ve searched my heart as to why this happened and whether

there is any steps that I could have changed when I placed the line, and

there’s nothing that I would have done differently.” Id. at 194-95.

     Mrs. Lageman’s counsel asked Dr. Zepp if he was wrong in thinking the

catheter was in the jugular vein. Dr. Zepp answered, “I was wrong.” Id. at

195. When asked if he was also wrong when he performed the manometry

tests in the course of inserting the line, he said he was not wrong,

commenting, “The manometry is a very sensitive test to determine whether

or not you are arterial or venous, and the manometry passed the venous

confirmation.” Id.

     Dr. Zepp’s own counsel later asked, “Dr. Zepp, you did not intend for

this arterial cannulation to occur in connection with Mrs. Lageman’s line

placement, correct?”   Dr. Zepp answered, “That’s correct.”    Counsel then

asked, if “ultimately being wrong in that respect, is that the same thing as

being negligent?” Dr. Zepp responded, without objection, “No.” Id. at 196.

Mrs. Lageman presented the expert testimony of anesthesiologist Dr. Pepple.

Dr. Pepple explained that he reviewed the transcript of Dr. Zepp’s 2015

deposition.   Dr. Pepple was asked, “In your area of expertise as an

anesthesiologist, did you form an opinion as to whether [Dr.] Zepp in his

placing the CVP line in Mrs. Lageman acted below the standard of care

required under the circumstances of an anesthesiology specialist; in other


                                   - 15 -
J-A11014-19


words, was he negligent?” Id. at 220. He answered, “My opinion was that

he was negligent.” Id. Dr. Pepple went on to explain that placing the CVP

line into the carotid artery can result in a total occlusion or an “embolic

phenomenon or obstructive phenomenon which can cause a stroke.” Id. at

222.

       The    following   exchange   subsequently took     place   between Mrs.

Lageman’s counsel and Dr. Pepple:

       Q.    Now, Dr. Zepp would say he followed all the proper
       procedures, he did test with a tube called manometry, and he did
       everything right, but it turned out to be wrong in the artery. In
       your opinion, is that possible under the appropriate standard of
       care?

       A.    It doesn’t seem possible because the facts that we do know
       are that the catheter was in an artery, okay, so if it was in an
       artery, then if you worked backwards, you’d have to say, well,
       how did it get there?

       If you transduced it, in other words, if you have a needle and you
       hook in this case a piece of plastic tubing to it and let the blood
       go up into it, if it’s in an artery, it usually will go up quite high.

       At his deposition, he said he did that. He didn’t record that in the
       anesthesia record.

Id. at 226.

       Dr. Pepple acknowledged that Mrs. Lageman’s jugular vein was located

directly above her carotid artery. That positioning occurs in approximately

8% of people, whereas in approximately 70% of people, the jugular vein is to

the lateral side. Id. at 227-28. While the location of her vein in relation to

her carotid artery would not be an excuse for putting the catheter into the


                                      - 16 -
J-A11014-19


artery, “It’s an explanation. It’s not an excuse. This was a more difficult

placement than normal.” Id. at 230. As for transducing to locate the tip of

the needle on the CVP line, Dr. Pepple indicated you would have to move the

transducer up and down but the medical records do not reflect that was done.

Id. at 229-30.

      Dr. Pepple expounded on the harm resulting from placing a catheter in

the carotid artery.   When asked if placing a catheter in the carotid artery

increases the risk of a stroke, he replied that it “increases it exponentially.”

Id. at 232.    Further, if Dr. Zepp put the catheter into the artery before

realizing it was in the artery, “[t]hat is below the standard of care. I mean,

that’s what we are trying to avoid entirely.” Id. at 233. To a reasonable

degree of medical certainty, it was Dr. Pepple’s opinion that Mrs. Lageman’s

stroke   was     “caused   by   this   catheter   being   down   18   centimeters

[approximately seven inches] into the arterial area.”        Id. at 237.   If the

standard of care had been properly observed, all the steps were taken

correctly, and things were seen and evaluated correctly, it would not be

possible for the carotid artery to be cannulated “to that degree.” Id. at 238

(emphasis added).

      At the conclusion of the testimony from Dr. Pepple, whose testimony

was taken out of order to accommodate his schedule, Dr. Zepp returned to

the stand.     When asked if he agreed with Dr. Pepple’s opinion that he

performed Mrs. Lageman’s procedure in a negligent fashion, Dr. Zepp replied,


                                       - 17 -
J-A11014-19


“No, I do not.” Id. at 296-97. He then proceeded, over objection from Mrs.

Lageman’s counsel, to demonstrate and describe insertion of a CVP line using

a mannequin. Id. at 297-311.

      In addition to Dr. Zepp’s own testimony, the defense offered the expert

testimony of anesthesiologist Dr. Hudson.         Based on his review of the

anesthesia records from Mrs. Lageman’s surgery and Dr. Zepp’s deposition,

Dr. Hudson formed opinions, to a reasonable degree of medical certainty, that

Dr. Zepp’s conduct met the applicable standard of care, that Dr. Zepp was not

negligent, and that Dr. Zepp did not commit malpractice. Id. at 502. Dr.

Hudson noted his awareness of the arterial cannulation that occurred in the

placement of Mrs. Lageman’s CVP line and expressed his opinion that Dr. Zepp

“followed the standard of care and the guidelines that are developed based on

the medical evidence in the steps that he took in the placement of the - - the

attempted placement of the central line.” Id. at 502-03. He stated that Dr.

Zepp used ultrasound first to identify the location of the jugular vein in relation

to the carotid artery; however, the use of ultrasound does not eliminate the

risk of arterial cannulation. Id. at 503-04. He also discussed manometry, the

“gold standard” confirmatory test for location of the catheter, and explained

that in the course of conducting that final step of measuring the pressure in

the line, Dr. Zepp recognized that the line was in the carotid artery. Id. at

509-10.




                                      - 18 -
J-A11014-19


      Dr. Hudson was asked to articulate the major reasons why he disagreed

with Dr. Pepple’s opinions and criticism of Dr. Zepp’s actions. Dr. Hudson

explained that Dr. Pepple extensively discussed the usefulness of “a long axis

with an in-plane view of ultrasound versus a short axis view ultrasound.” Id.

at 511. Dr. Zepp had testified that he used the short axis view ultrasound.

Id. at 167-68. Dr. Hudson noted that “there’s really no compelling medical

evidence that suggests the one is better than the other to prevent posterior

wall puncture of the internal jugular vein or prevent[] carotid artery

cannulation. The vast majority of anesthesiology and critical care medicine

practitioners use a short axis view, they do not use a long axis view[.]” Id.

at 511. He also took issue with Dr. Pepple’s lack of discussion concerning the

importance of manometry, which in his estimation “is such a vital part of the

confirmatory process in assuring that that initial catheter is in the vein and

not the artery.” Id. at 512.

      Dr. Hudson testified that he has been involved in quality assurance

within institutions where he has practiced. Id. He acknowledged that he has

experienced arterial cannulation in connection with CVP line placement in the

course of his practice, as have experienced colleagues in his department. Id.

In his opinion, “Dr. Zepp’s description of his techniques for placement of

central venous catheters, he took the recommended steps to limit the risk of

inadvertent arterial cannulation, and his technique is consistent with the

standard of care.” Id. at 512-13.


                                    - 19 -
J-A11014-19


      Again,

      [b]ecause medical malpractice is a form of negligence, to state a
      prima facie cause of action, a plaintiff must demonstrate the
      elements of negligence: a duty owed by the physician to the
      patient, a breach of that duty by the physician, that the breach
      was the proximate cause of the harm suffered, and the damages
      suffered were a direct result of harm. With all but the most self-
      evident medical malpractice actions there is also the added
      requirement that the plaintiff must provide a medical expert who
      will testify as to the elements of duty, breach, and causation.

Tillery v. Children’s Hospital of Philadelphia, 156 A.3d 1233, 1240 (Pa.

Super. 2017) (quoting Fessenden, 97 A.3d at 1229). Further, “[a]n expert

witness proffered by a plaintiff in a medical malpractice action is required to

testify to a reasonable degree of medical certainty, that the acts of the

physician deviated from good and acceptable medical standards, and that such

deviation was the proximate cause of the harm suffered.”          Id. (quoting

Stimmler v. Chestnut Hill Hosp., 981 A.2d 145, 155 (Pa. 2009)).

      There is no dispute that Dr. Zepp owed a duty of care to his patient,

Mrs. Lageman. Based on my review of Dr. Pepple’s testimony, an abridged

version of which I have provided above, I conclude that Mrs. Lageman

presented sufficient direct evidence to demonstrate that Dr. Zepp’s actions fell

below the standard of care and therefore breached his duty of care to Mrs.

Lageman.    Through Dr. Pepple’s testimony, she also established that Dr.

Zepp’s breach of duty caused her stroke, which left her paralyzed. Testimony

from various witnesses, including an actuary, Jonathan Cramer, N.T. at 351-

81, Mrs. Lageman’s daughter, Adrienne Marie Lageman, id. at 392-404, and


                                     - 20 -
J-A11014-19


Mrs. Lageman herself, Lageman Deposition, 4/14/15, at 1-16, showed that

Mrs. Lageman suffered damages as a direct result of the harm. Therefore,

even though Dr. Zepp contested the evidence, Mrs. Lageman established a

prima facie case of negligence against Dr. Zepp.5 The Majority recognized

that fact. Majority Opinion at 5 (“Thus, [Mrs. Lageman] established a prima

facie case of negligence: a duty to use reasonable care, breach of that duty,

and evidence that breach increased the risk of harm actually suffered by Mrs.

Lageman.”).

       Following closing arguments, the trial court properly charged the jury

on the elements of negligence and, in particular, medical negligence with

respect to a doctor’s performance of duties that stem from his professional

relationship with a patient. The jury was instructed to determine if Dr. Zepp’s

care or treatment fell below the standard of care, whether his negligence was

a factual cause of Mrs. Lageman’s injuries, and the amount of damages she

sustained as a result of Dr. Zepp’s negligence. N.T. at 628-37. The jury was

advised that a bad or unforeseen result that occurs as a result of a physician’s

conduct is not necessarily proof of negligence, that a doctor does not

guarantee a particular result, and that the jury may not infer the doctor was

negligent solely because the treatment ended with an unfortunate result. Id.

____________________________________________


5 I note that the trial court denied Dr. Zepp’s motion for nonsuit. N.T., at 407-
08. Both parties requested, and were denied, directed verdicts at the close of
testimony. Id. at 563-64.



                                          - 21 -
J-A11014-19


at 629.    Following deliberations, the jury concluded Dr. Zepp was not

negligent. Id. at 649.

      The fact the jury determined Dr. Zepp was not negligent is not an

indication Mrs. Lageman failed to establish a prima facie case of negligence.

To the contrary, she presented expert testimony that provided direct evidence

of Dr. Zepp’s negligence. In this instance, the evidence was contested by Dr.

Zepp through his own testimony and that of his expert, Dr. Hudson. It was

up to the jury to weigh that evidence and apply the law as instructed by the

trial court. It is presumed that jurors follow the court’s instructions. Farese

v. Robinson, 222 A.3d 1173, 1184 (Pa. Super. 2019).

      Because Mrs. Lageman presented direct evidence of causation, and

therefore direct evidence of negligence, she was not entitled to a res ipsa

loquitur instruction. I would find, as the en banc panel of this Court did in

MacNutt, that the trial court “properly precluded [plaintiffs] from presenting

their medical malpractice case at trial based on a res ipsa loquitur theory of

negligence.” MacNutt, 932 A.2d at 992. Therefore, the trial court did not err

or abuse its discretion in denying a res ipsa instruction and Mrs. Lageman

should not be granted a new trial.

      Although I conclude the Majority incorrectly determined Mrs. Lageman

was entitled to a res ipsa instruction and, therefore, a new trial, I write further

to express my disagreement with the Majority’s analysis of the first element

of § 328D. In my estimation, Mrs. Lageman simply did not establish that the


                                      - 22 -
J-A11014-19


event at issue here—arterial cannulation—does not ordinarily occur in the

absence of negligence.

     To warrant a res ipsa instruction, a plaintiff must satisfy all three

elements of § 328D. MacNutt, 932 A.2d at 987.

In accordance with § 328D,

  (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.

Restatement (Second) of Torts, § 328D(1) (1964) (emphasis added).

     As the trial court recognized:

     On March 13, 2014, Plaintiff filed a complaint in medical
     malpractice and negligence against the above-named Defendants.
     Plaintiff alleged that Defendant Zepp was negligent for breaching
     the standard of care as a result of placing the catheter through
     the vein and into Plaintiff’s artery[, i.e., arterial cannulation]
     causing her to suffer a stroke in her right middle cerebral artery
     that resulted in left-sided paralysis.

Trial Court Opinion, 8/2/18, at 3. In the context of this case, and assuming

for the sake of argument that a res ipsa instruction was warranted, I submit

that § 328D appropriately would be read as follows:




                                      - 23 -
J-A11014-19


    (1)   It may be inferred that the stroke6 suffered by the Mrs. Lageman is
          caused by negligence of Dr. Zepp if

          (a)    Arterial cannulation is an event of the kind that ordinarily
                 does not occur in the absence of negligence;
          (b)    Other responsible causes of the stroke are eliminated; and
          (c)    The indicated negligence is within the scope of Dr. Zepp’s duty
                 to Mrs. Lageman.7

       As outlined above, Mrs. Lageman’s expert, Dr. Pepple, concluded Dr.

Zepp was negligent in his placement of the central line. In particular, Dr.

Pepple was critical of the technique employed by Dr. Zepp in the insertion of

the central line, and concluded his placement of the catheter into the carotid

artery fell below the standard of care. However, he also acknowledged that

following all of the applicable guidelines established by the American Society

of Anesthesiologists “cannot guarantee any specific outcome.” N.T. at 282.

See also id. at 293 (following the recommended steps cannot guarantee any

specific outcome for a patient).

       By contrast, Dr. Zepp testified that he was not negligent and that arterial

cannulation can occur, even in the absence of negligence. Id. at 314. He

explained that there is an algorithm for managing the complications of arterial

cannulation because


____________________________________________


6 There is no suggestion there was any damage to Mrs. Lageman’s carotid
artery or her jugular vein as a result of the arterial cannulation. The stroke is
the “harm” she alleged resulted from the arterial cannulation.
7 The trial court determined that Mrs. Lageman established the third element,
i.e., that the indicated negligence is within the scope of Dr. Zepp’s duty to
Mrs. Lageman. Trial Court Opinion, 8/2/18, at 8.

                                          - 24 -
J-A11014-19


       [i]t’s necessary for the care of the patient. If this type of issue
       never arose, there wouldn’t be an algorithm for its use. There
       would be no reason to create an algorithm for this type of an issue.

       It’s something that’s happened to my partners, it’s something
       that’s obviously happened to me, so, you know, we have these
       best practice guidelines to guide us through placing this line, but
       even in the absence of negligence, we can still have these
       arterial cannulations, and we need to have a way to be able to
       manage them. And the literature supports the use of getting
       another body and getting a vascular surgeon in to, you know,
       further investigate that rather than pulling that catheter out and
       just holding pressure.

Id. at 314-15 (emphasis added).

       In addition, Dr. Zepp’s expert, Dr. Hudson, offered his opinion that Dr.

Zepp was not negligent, that his conduct met the applicable standard of care,

and that Dr. Zepp followed proper guidelines in the attempted placement of

the central line. Id. at 502-03. Dr. Hudson also acknowledged that arterial

cannulation has occurred in connection with his placement of a central line

and has happened with experienced colleagues in his department. Id. at 512.

“[E]ven following the guidelines, you cannot guarantee that you are going to

prevent injury.” Id. at 546.8

       In deciding the first element of § 328D was satisfied, the Majority

contends that Mrs. Lageman “produced testimony that cannulation of the



____________________________________________


8 Because Dr. Hudson’s report did not specifically state that arterial
cannulation does not happen in the absence of negligence, the trial court
precluded Dr. Zepp’s counsel from eliciting that opinion at trial. See Majority
Opinion at 25 n.8.


                                          - 25 -
J-A11014-19


artery did not usually occur in the absence of negligence when the procedure

was performed with manometry as maintained by [Dr.] Zepp.”              Majority

Opinion at 14.       The Majority also indicated, without citation to the trial

transcript, “Dr. Pepple testified unequivocally herein that, to a reasonable

degree of medical certainly, arterial cannulation would not have occurred in

the absence of negligence in the performance of the central line placement.”

Id. at 20.      However, my review of the transcript fails to unearth any

unequivocal statement by Dr. Pepple that arterial cannulation does not

ordinarily occur in the absence of negligence. Rather, he offered his opinion

that Dr. Zepp was negligent in his insertion of the central line and that his

conduct fell below the standard of care. N.T. at 220, 233. He also was asked,

“And if one is approaching a patient like this within the standard of care that

is done negligently, should this cannulation of the artery occur?” Id. at 240.

Dr. Pepple responded, “It should not occur.”       Id.9 In essence, the expert

testimony of Dr. Pepple did nothing more than satisfy the elements necessary

to establish a prima facie case of a medical negligence case. See Quinby,

907 A.2d at 1070 (“Because medical malpractice is a form of negligence, to

state a prima facie cause of action, a plaintiff must demonstrate the elements

of negligence: a duty owed by the physician to the patient, a breach of that



____________________________________________


9 While I am not quite certain of the meaning of counsel’s question, the
question clearly did not ask if arterial cannulation ordinarily does not occur in
the absence of negligence.

                                          - 26 -
J-A11014-19


duty by the physician, that the breach was the proximate cause of the harm

suffered, and the damages suffered were a direct result of harm.”) (quotation

and citation omitted).

      It further appears the Majority rejected the testimony of Dr. Zepp that

arterial cannulation can occur even in the absence of negligence and similarly

discounted Dr. Hudson’s opinion that Dr. Zepp met the applicable standard of

care. Regardless, Dr. Pepple’s conclusion that Dr. Zepp was negligent does

not equate to a conclusion that arterial cannulation does not ordinarily occur

in the absence of negligence. Again, it was enough to satisfy the requirements

necessary to establish a prima facie of negligence. The case appropriately

went to the jury on that basis and the jury determined that Dr. Zepp was not

negligent.

      With respect to res ipsa loquitur, the trial court concluded:

      We find that the evidence in this case did not establish that more
      likely than not that [Mrs. Lageman’s] injuries were caused by [Dr.]
      Zepp’s negligence. We find that the experts shared different views
      on the use of ultrasound to find the vein and artery. Based on
      these conclusions, we found that the possibilities were evenly
      divided between negligence and its absence. As a result, we
      found that [Mrs. Lageman] did not meet her burden of proof
      of drawing a permissible conclusion that an arterial
      cannulation does not ordinarily happen unless someone is
      negligent. We suggest that conclusion is not erroneous.

Trial Court Opinion, 8/2/18, at 19 (emphasis added).

      Again, “[b]efore a plaintiff can invoke the doctrine of res ipsa loquitur,

all three of the elements of Section 328D(1) must be established; only then

does the injurious event give rise to an inference of negligence.” MacNutt,

                                     - 27 -
J-A11014-19


932 A.2d at 987 (citations omitted). Mrs. Lageman failed to establish the first

element and I believe the Majority’s conclusion to the contrary is incorrect.

Therefore, even assuming Mrs. Lageman was entitled to proceed on a res ipsa

loquitur theory, she did not satisfy the first element of § 328D and would not

have been entitled to a res ipsa loquitur jury instruction.

      The Majority also concludes that the trial court committed an error of

law by permitting Dr. Zepp to conduct a live demonstration using a mannequin

to illustrate the process of inserting a central line. Majority Opinion at 28-34.

It is well settled that “the admission of evidence rests within the sound

discretion of the trial court and will only be reversed upon a showing that it

abused its discretion.” Quinby, 907 A.2d at 1078. Additionally, "for a ruling

on evidence to constitute reversible error, it must have been harmful or

prejudicial to the complaining party.” Stumpf v. Nye, 950 A.2d 1032, 1036

(Pa. Super. 2008) (citation omitted).

      As this Court has explained:

      Demonstrative evidence is “tendered for the purpose of rendering
      other evidence more comprehensible for the trier of fact.”
      2 MCCORMICK ON EVIDENCE § 212 (5th ed. 1999). “As in the
      admission of other evidence, a trial court may admit
      demonstrative evidence whose relevance outweighs any potential
      prejudicial effect.” Commonwealth v. Serge, 586 Pa. 671, 896
      A.2d 1170, 1177 (2006) (citation omitted). “Demonstrative
      evidence may be authenticated by testimony from a witness who
      has knowledge ‘that a matter is what it claimed to be.’” Id. (citing
      Pa.R.E. 901(b)(1)).

Kopytin v. Aschinger, 947 A.2d 739, 747 (Pa. Super. 2008).

      Here, the trial court concluded:

                                     - 28 -
J-A11014-19


      We find the demonstration was relevant to help the jury
      understand what this procedure involved and the steps that are
      undertaken to accomplish the procedure. We also find that the
      testimony throughout this portion of the trial made it clear to the
      jury that this demonstration was not illustrative of the
      circumstances in [Mrs. Lageman’s] case. The demonstration was
      only used for the purpose of showing the steps for placing a
      central venous line. [Mrs. Lageman] had plenty of opportunity to
      clarify this fact to the jury and to cross-examine [Dr.] Zepp while
      the mannequin was in the room during the trial. Therefore, we
      find that we did not abuse our discretion in allowing the
      demonstrative exhibit to be presented before the jury in this case.

      Additionally, the demonstration tended to show clearly to the jury
      how the initial position of the needle was plainly visible through
      the ultrasound, and thus, how its placement in an artery could
      have been avoided. We fail to see how the demonstration
      prejudiced [Mrs. Lageman].

Trial Court Opinion, 8/2/18, at 21-22.

      My review of the transcript supports the trial court’s findings.      The

demonstration enabled the jury to better understand the procedure Dr. Zepp

performed on Mrs. Lageman and the technique he employed. The fact that

Dr. Zepp was demonstrating the procedure on a mannequin and not recreating

the actual procedure performed on Mrs. Lageman was driven home several

times in the course of his testimony. See N.T at 297 (“obviously, we have a

mannequin here” . . . “This is a mannequin. This is a mannequin specifically

designed in our simulation lab in York Hospital to allow you to practice this

technique”); at 297-98 (“You can’t go through all the steps, so there’s going

to be a point [] where I kind of stop, and I’ll talk you through the rest. The

reason that is, is, again, you don’t want to put the dilators into the

mannequin”); at 298 (“I mean, again, it’s just a model, a mannequin, so it’s

                                    - 29 -
J-A11014-19


not as realistic as it is in real life”); at 301 (“I’m not going to do that again.

It’s a mannequin,”); and at 305 (“I can’t really replicate that with the

mannequin, but that’s kind of standard practice when you place the line”).

      Further, as the trial court determined, “We fail to see how the

demonstration prejudiced [Mrs. Lageman].” Trial Court Opinion, 8/21/18, at

22. In fact, before Dr. Zepp concluded the demonstration, Mrs. Lageman’s

counsel asked, “[C]ould we have the doctor show what it actually looks like

when it is in the artery like it was with Mrs. Lageman” because he “showed us

what it looks like when it’s in the vein[.]” N.T. at 305-06. Dr. Zepp proceeded

to put the needle into the artery, explaining “when you have a real patient,

this column of tubing goes up fast because it’s a higher pressure system, and

you will be able to see that pulsation.” Id. at 308. He explained that the

orientation was the same as before and stated, “See the pulsations?           The

manometry corresponds to the pulsations, . . . the column of fluid doesn’t fall

back down into the patient.” Id.

      In his closing argument, Mrs. Lageman’s counsel actually used the

demonstration to support his claim of Dr. Zepp’s negligence, stating:

      Well, what about this manometry? That’s a procedure that’s
      supposed to be done before you put the large bore catheter in to
      verify that you are not in the artery, in the vein.

      You had a demonstration here with a mannequin, and – a practice
      mannequin, and Dr. Zepp was showing what he says that he did
      or he always does and probably believes that he did. But I
      interrupted him. I stood up. I interrupted. I said, could we see
      what it would look like if you actually put that catheter in the
      artery where nobody disagrees that it was? Nobody disagrees

                                      - 30 -
J-A11014-19


      with that. What would it look like if you put it in the artery? And
      he held up the tube, and there was some necessity to try to mimic
      the heartbeat by squeezing that bulb, and you could see that it
      was red and it went up and down with the heart.

      Then Dr. Zepp went over and showed you the heartbeat, the peak
      of the mountain, after he had sewed everything in and after he
      checked the pressure, and then he learned, you know, it’s too late,
      that he was in the artery.

      So that – I asked him, does that top of the wave there, does that
      correspond to the heart beating? And he said, yes, that’s when
      the heart contracts and beats, and that’s when the column rises if
      you are doing the manometry correct, that gold standard that Dr.
      Hudson talked about.

      So how – if your manometry was done, if it was done properly, if
      it was interpreted properly, how do you miss that? How do you
      miss seeing that the blood is red and it’s going up and down?

      The blood is a different color in the veins than in the arteries. I
      used these, and I asked, is that – I asked in the question, is that
      pretty much the difference? Yeah.

      So was the manometry done? Was it done properly? Was it
      interpreted properly? Even Dr. Hudson agreed, their expert, that
      if it was not, that is below the standard of care.

N.T. at 602-04.

      I believe the trial court properly exercised its discretion in permitting

the demonstration. Moreover, Mrs. Lageman has failed to demonstrate how

she was prejudiced by the court’s ruling. Finding no abuse of discretion in

that evidentiary ruling, I would not disturb it.




                                     - 31 -
