J-A11014-19

                                   2020 PA Super 172


    ELIZABETH H. LAGEMAN, BY AND               :   IN THE SUPERIOR COURT OF
    THROUGH HER POWER OF                       :        PENNSYLVANIA
    ATTORNEY AND DAUGHTER,                     :
    ADRIENNE LAGEMAN                           :
                                               :
                       Appellant               :
                                               :
                                               :
                v.                             :   No. 756 MDA 2018
                                               :
                                               :
    JOHN ZEPP, IV, D.O.; ANESTHESIA            :
    ASSOCIATES OF YORK, PA, INC.;              :
    YORK HOSPITAL; AND WELLSPAN                :
    HEALTH, T/D/B/A YORK HOSPITAL              :

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


BEFORE: BOWES, J., OLSON, J., and STABILE, J.

OPINION BY BOWES, J.:                                     FILED JULY 20, 2020

       Elizabeth H. Lageman (“Mrs. Lageman”), by and through her daughter

and attorney-in-fact, Adrienne Lageman, appeals from the May 10, 2018

judgment in favor of John Zepp, IV, D.O. (“Defendant Zepp”), Anesthesia

Associates of York, Pa., Inc. (“Anesthesia Associates”), and York Hospital in

this medical malpractice case.1 After careful review, we vacate the judgment

and remand for a new trial.




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1The parties stipulated to the dismissal of all claims against WellSpan Health
without prejudice on October 21, 2014.
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      The pertinent facts are as follows. Mrs. Lageman was hospitalized at

York Hospital on May 17, 2012, for a bowel obstruction. Two days later, she

underwent an emergency exploratory laparotomy and lysis of adhesions.

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 Mrs. Lageman’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.




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      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, Mrs. Lageman sustained a stroke that left her paralyzed on

her left side, which is one of the recognized risks of arterial cannulation. N.T.

Jury Trial, 1/2-8/18, at 185-86; 313.

      Adrienne Lageman (“Plaintiff”) filed a complaint in medical negligence

on her mother’s behalf in the Court of Common Pleas of York County against

the above-named defendants. Plaintiff alleged that Defendant Zepp deviated

from the standard of care in his performance of the central line procedure,

and that his negligent cannulation of Mrs. Lageman’s carotid artery caused

irreversible and permanent stroke injuries. Plaintiff asserted claims sounding

in vicarious liability and corporate negligence against York Hospital and the

Anesthesiology Associates. However, when trial commenced on January 2,

2018, only vicarious liability claims based on the negligence of Defendant Zepp

remained against the Hospital and Anesthesia Associates.

      At trial, the following facts were undisputed. While Mrs. Lageman was

sedated, Defendant Zepp inserted the central line into Mrs. Lageman’s carotid

artery instead of her jugular vein. Mrs. Lageman’s carotid artery lay below

the jugular vein. This anatomical orientation was obvious on ultrasound, and


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while it made central line placement more difficult, “over fifty percent of

patients over age sixty have the same orientation” as Mrs. Lageman, and

Defendant Zepp was familiar with it.        N.T. Jury Trial, 1/2-8/18, at 313.

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, Dr. Hudson, as well as Plaintiff’s expert Dr. James M. Pepple, agreed

that inadvertent arterial cannulation increases the risk of stroke. Although

the defense did not concede that Mrs. Lageman’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 Mrs. Lageman’s stroke.

      In making out a prima facie case of negligence, Plaintiff pursued two

avenues.   She offered the expert testimony of Dr. Pepple, rendered to a


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reasonable degree of medical certainty, that Defendant Zepp was negligent in

the manner in which he used short-axis view ultrasound as he could not

properly visualize the tip of the needle.    Consequently, the expert opined,

Defendant Zepp was unaware that the needle had passed through the vein,

punctured and entered the underlying artery. Dr. Pepple also disputed that

Defendant Zepp employed manometry, pointing out that its use was not noted

on the anesthesia record. Dr. Pepple opined that cannulation of the artery

increased the risk of stroke “exponentially,” which was the very harm that

resulted. Thus, Plaintiff 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.

      In addition to offering proof of specific negligence on the part of

Defendant Zepp, Plaintiff sought to avail herself of the inference afforded by

the evidentiary doctrine of res ipsa loqitur, meaning literally, “the thing speaks

for itself.” She introduced evidence calculated to establish the three elements

necessary to invoke the inference. First, she offered the expert testimony of

Dr. Pepple to the effect that, accepting Defendant Zepp’s version of how he

performed the procedure, this event, i.e. arterial cannulation, would not

ordinarily occur in the absence of negligence. She offered testimony from Dr.

Pepple and Defendant Zepp to rule out other responsible causes for such an




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event.    Finally, it was undisputed that the alleged negligent central line

placement was within the scope of Defendant Zepp’s duty to Mrs. Lageman.2

       Prior to submission of the case to the jury, Plaintiff presented a proposed

point for charge on res ipsa loquitur. The trial court refused to give a res ipsa

instruction, stating that this was not the type of case where it was obvious

that the doctrine applied. N.T. Jury Trial, 1/2-8/18, at 491. Thus, the jury

was not instructed that it was permitted to infer that the harm suffered by

Mrs. Lageman was caused by Defendant Zepp’s negligence.

       After six days of trial, the jury returned a verdict in favor of Defendants,

specifically finding no negligence on the part of Defendant Zepp. Plaintiff filed

a motion for post-trial relief, which the trial court denied on April 12, 2018,

and this timely appeal followed. Both Plaintiff and the trial court complied

with Pa.R.A.P. 1925, and the matter is ripe for our review. Plaintiff presents

the following issues:

       A. Whether the trial court committed an error of law when it failed
          to give Plaintiff’s charge of Res Ipsa Loquitur during jury
          instructions?

       B. Whether the trial court committed an error of law when it
          permitted the Defendants to perform a misleading
          demonstration before the jury?

       C. Whether the trial court committed an error of law when it failed
          to correct or cure a misstatement in closing argument by


____________________________________________


2 We explore in detail infra the three elements that must be satisfied in order
to invoke the res ipsa loquitur inference, and the evidence introduced by the
Plaintiff to meet that threshold.

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            Defense counsel which also violated a prior Order of the trial
            court?

      D. The Jury Verdict was against the evidence.

      E. The Jury Verdict was against the weight of the evidence.

Appellant’s brief at 4.

      In reviewing the trial court’s denial of post-trial relief, generally our

“scope of review is limited to determining whether the trial court committed a

clear abuse of discretion or error of law controlling the outcome of the case.”

Stewart v. Motts, 654 A.2d 535, 540 (Pa. 1995). Plaintiff alleges first that

the trial court erred in refusing to give an instruction on res ipsa loquitur to

the jury.

             In examining jury instructions, our scope of review is limited
      to determining whether the trial court committed a clear abuse of
      discretion or error of law controlling the outcome of the case.
      Error in a charge is sufficient ground for a new trial if the charge
      as a whole is inadequate or not clear or has a tendency to mislead
      or confuse rather than clarify a material issue. Error will be found
      where the jury was probably misled by what the trial judge
      charged or where there was an omission in the charge. A charge
      will be found adequate unless the issues are not made clear to the
      jury or the jury was palpably misled by what the trial judge said
      or unless there is an omission in the charge which amounts to a
      fundamental error. In reviewing a trial court’s charge to the jury,
      we must look to the charge in its entirety. Because this is a
      question of law, this Court’s review is plenary.

Passarello v. Grumbine, 87 A.3d 285, 296-97 (Pa. 2014) (quoting Quinby

v. Plumsteadville Family Practice, Inc., 907 A.2d 1061, 1069-70 (Pa.

2006)). A new trial will be required “if the charge as a whole is inadequate or




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not clear or as a tendency to mislead or confuse rather than clarify a material

issue.” Quinby, supra at 1069.

      “Medical malpractice consists of a negligent or unskillful performance by

a physician of the duties which are devolved and incumbent upon him on

account of his relations with his patients, or of a want of proper care and skill

in the performance of a professional act.” Vazquez v. CHS Prof'l Practice,

P.C., 39 A.3d 395, 397-398 (Pa.Super. 2012) (quoting Quinby, supra at

1070-71 (internal citations omitted)).    As in negligence cases generally, in

order to state a prima facie case, the plaintiff must demonstrate that the

physician owed a duty to the patient, that he breached that duty, that the

breach was the proximate cause of the harm suffered, and that damages

directly resulted. Id. (citing Hightower-Warren v. Silk, 698 A.2d 52, 54

(Pa. 1997)).    In most malpractice cases, other than those where the

negligence is so obvious as to be within the common understanding of

laypersons, a plaintiff will need a medical expert who will provide testimony

meeting those elements. Id.

      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.     Our Supreme Court called it “a shorthand

expression for circumstantial proof of negligence -- a rule of evidence.”

Quinby, supra at 1071. The doctrine allows a plaintiff to “satisfy his burden

of producing evidence of a defendant’s negligence by proving that he has been


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injured by a casualty of a sort that normally would not have occurred in the

absence of the defendant’s negligence.”        Id.   The Court added, “[t]he

inference provides reasonable evidence, in the absence of an explanation by

the [d]efendants, that the accident arose from their negligence.” Id. at 1076.

The strength of the inference depends on the evidence presented, but ranges

“from reasonable probability to practical certainty.”     Id.   Where different

conclusions can be reached, it is the jury’s function to determine whether the

inference is to be drawn. Id.

      The Restatement formulation of res ipsa loquitur was adopted by our

Supreme Court in Gilbert v. Korvette's Inc., 327 A.2d 94 (Pa. 1974), and

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).


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      Before a plaintiff can rely upon res ipsa loquitur, he 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.” Id. at § 328A. 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. Our High Court also recognized

in Quinby, supra at 1076, that “where exceptional circumstances give rise to

an inference of negligence on the part of the defendant which is so strong that

it cannot be rejected by reasonable individuals if not rebutted,” the court may

direct a verdict in favor of plaintiff. “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.”         Id.   As a comment to the

Restatement explains:

      The inference arising from a res ipsa loquitur case may . . . be
      destroyed by sufficiently conclusive evidence that it is not in
      reality a res ipsa loquitur case. If the defendant produces
      evidence which is so conclusive as to leave no doubt that the event
      was caused by some outside agency for which he was not
      responsible, or that it was of a kind which commonly occurs
      without negligence on the part of anyone and could not be avoided
      by the exercise of all reasonable care, he may be entitled to a
      directed verdict.

Restatement (Second) of Torts § 328D cmt. o (1964).




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       Traditionally, res ipsa is associated with events that are within the

common knowledge of laypersons and requiring no expert testimony to

establish negligence and causation. Some examples of such events offered

by the commentators to the Restatement are the fall of an elevator, or the

escape of gas, water, or electricity from mains or wires, or train derailments.

From the nature of such events, “the conclusion is at least permissible that

such things do not usually happen unless someone has been negligent.”

Restatement (Second) of Torts § 328D cmt. c; see also Fessenden v.

Robert Packer Hosp., 97 A.3d 1225, 1227 (Pa.Super. 2014) (holding res

ipsa loquitur applicable where sponge left in abdomen following surgery

caused abdominal abscess and necessitated the removal of gallbladder and a

portion of small bowel).

       In Jones v. Harrisburg Polyclinic Hospital, 437 A.2d 1134 (Pa.

1981), our Supreme Court sanctioned the use of res ipsa in a complex medical

negligence case.3 The plaintiff in Jones sustained suprascapular nerve palsy

____________________________________________



3In considering whether it should permit section 328D res ipsa loquitur to be
employed in medical malpractice cases, the Jones Court noted one
commentator’s explanation for the reluctance to do so:

       It was early thought that this doctrine could have no application
       to medical science, because there are so many intangibles and
       uncertainties involved that the occurrence of a bad result could
       never justify an inference of negligence, and that all features of
       medical treatment could be interpreted and judged by physicians
       only. Gradually, however . . ., the courts in most states now



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during a gynecological procedure. The Court recognized there was no fund of

common knowledge from which laypersons could reasonably draw the

inference of negligence, but permitted the inference when plaintiff offered

uncontradicted expert medical testimony establishing that the condition did

not ordinarily occur in such circumstances.        See Restatement (Second) of

Torts § 328D; see also Hightower-Warren, supra at 54 (plaintiff’s expert’s

testimony that injury to left recurrent laryngeal nerve was the kind of event

that does not occur in the absence of negligence under the operative

conditions as described by defendant doctor and, after ruling out all other

possible causes, opined to a reasonable degree of medical certainty that it

occurred during the procedure at the hands of defendant, established first and

second prongs of res ipsa).         Where medical evidence established that the

event would not ordinarily occur without negligence, the Court found no basis

for refusing to permit a jury to draw such an inference.

       Herein, as in Jones and Hightower, “there is no fund of common

knowledge from which laymen can reasonably draw the inference or

conclusion of negligence.” Jones, supra at 1139. The proper way to insert


____________________________________________


       recognize that this doctrine does have its place in medical
       malpractice . . . .

Jones v. Harrisburg Polyclinic Hospital, 437 A.2d 1134, 1137 (Pa. 1981),
quoting FALA, The Law of Medical Malpractice in Pennsylvania, 36 U. of Pitt. L.
Rev. 203, 219 (1974).



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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 Mrs. Lageman.

      Plaintiff contends that she met all three elements for application of the

doctrine of res ipsa.   She offered Dr. Pepple as an expert in central line

placement, the use of ultrasound for central line placement, and anesthesia.

The procedure at issue involved placement of a central line in the internal

jugular vein in the right side of the neck. N.T. Jury Trial, 1/2-8/18, at 221.

The expert rendered an opinion, to a reasonable degree of medical certainty,

that Defendant Zepp’s cannulation of the artery, i.e., insertion of the large

bore catheter seven inches into the carotid artery instead of the jugular vein,

was negligent. Id. at 220. In his expert opinion, Defendant Zepp’s placement

of the catheter into the carotid artery was below the standard of care. Id. at

234. He opined further that it was impossible to perform the procedure as

Defendant Zepp maintained that he did, execute the procedure properly, and

still place the catheter seven inches into the artery. Id. at 225-26. Dr. Pepple

was asked,“[i]f the standard of care has been properly observed, that all the


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steps have not only been taken, but they were taken correctly and things were

seen and evaluated correctly, is it possible that this artery would have been

cannulated to that degree?” Id. at 238. He responded in the negative. Id.

       Dr. Pepple also rejected the suggestion that the location of Mrs.

Lageman’s vein above the artery excused or explained the error. He testified

that with the proper use of ultrasound, Defendant Zepp would have been

aware of that fact. Id. at 239. Indeed, Dr. Pepple pointed to photographs in

the medical record that showed the vein above the artery. Id. Thus, 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.4

____________________________________________


4 Despite the foregoing expert testimony, the Dissent contends that Plaintiff
did not establish that arterial cannulation as occurred herein does not
ordinarily happen in the absence of negligence. It maintains that Dr. Pepple’s
testimony was not an unequivocal statement to that effect, but merely his
opinion that Dr. Zepp was negligent in inserting the central line. See
Dissenting Opinion, at 25-26. In our view, Dr. Pepple’s testimony that it is
impossible to place a catheter seven inches into the artery if one properly
executes the central line procedure as described by Dr. Zepp, is the
equivalent of testimony that what occurred here does not ordinarily happen in
the absence of negligence.

Our distinguished colleague faults us for rejecting contrary testimony from Dr.
Zepp and his expert, Dr. Hudson, in concluding that Plaintiff’s proof met the
first element of res ipsa. However, at this juncture of the analysis, we look at
the Plaintiff’s proof to determine whether she established the first element.



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       As to the second element of res ipsa, eliminating other persons or causes

as responsible for the harm, Defendant Zepp stated that he personally placed

the central line. He added that “[t]he confirmatory steps that I took in placing

the central line are the same confirmatory steps that I take when I place every

central line.” Id. at 194-95. Defendant Zepp also ruled out the conduct of

others as responsible causes of the event. He testified that Mrs. Lageman did

not move, no one bumped the table, the equipment did not malfunction, the

ultrasound was working properly, and the kit containing the catheter, dilator,

and wire was not defective.          He also downplayed the significance of Mrs.

Lageman’s anatomy, explaining that the location of the jugular vein over the

carotid artery was common in persons over age sixty, and that he had

considerable experience placing central lines in patients belonging to that age

group.    Nevertheless, neither Defendant Zepp nor his expert, Dr. Hudson,

offered any explanation as to how, given this scenario, the large bore catheter

ended up in Mrs. Lageman’s carotid artery instead of her jugular vein.

       Plaintiff also offered Dr. Pepple’s testimony regarding the likely

connection     between     Defendant      Zepp’s   arterial   cannulation   and   Mrs.

Lageman’s stroke. The expert noted that Mrs. Lageman did not have atrial

fibrillation or any other pre-existing conditions that predisposed her to stroke,


____________________________________________


Furthermore, the fact that Dr. Pepple’s testimony was controverted does not
mean that the inference was negated or that the instruction was improper.
See infra at 23 (discussing effect of contrary evidence on the propriety of
giving a res ipsa instruction).

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and the MRI performed after the surgery did not disclose any alternative cause

of her stroke. Furthermore, Mrs. Lageman immediately sustained a stroke of

the middle cerebral artery, directly upstream from the site of the arterial

cannulation.   Id. at 235.       According to the expert, the neurologist had

eliminated other embolic causes of the stroke, including embolic phenomena

from the heart.    Id. at 237.    It was Dr. Pepple’s opinion, to a reasonable

degree of medical certainty, that the strokes were caused by the catheter

being inserted “eighteen centimeters into the arterial area.” Id. 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.

      Having sustained her burden, Plaintiff contends that the court was

required to give a res ipsa instruction. See Quinby, supra at 1072 (“[W]hen

common knowledge or medical evidence can be established that the event

would not ordinarily occur without negligence, there is no basis for refusing to

draw an inference of negligence in accord with res ipsa loquitur.”). She alleges

further that the evidence to the contrary offered by Defendant Zepp did not

dissolve the inference.    See Sedlitsky v. Pareso, 582 A.2d 1314, 1316

(Pa.Super. 1990) (providing that where the plaintiff sustains his or her burden,

the court must give the instruction on res ipsa loquitur, even if the defendant

has produced a quantity of contrary evidence).

      Defendant Zepp contends, as the trial court concluded, that Plaintiff

failed to satisfy the first element of the Restatement for application of res ipsa.


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He argues that Dr. Pepple conceded that the injuries that occurred herein

could happen in the absence of negligence when he agreed with the

proposition that even if a physician follows all of the professional practice

guidelines, a favorable outcome is not guaranteed.       Appellee’s brief at 11

(citing N.T. Jury Trial, 1/2-8/18, at 283).    The defense also points to Dr.

Pepple’s testimony that Mrs. Lageman’s anatomy made the central line

placement more difficult as evidence explaining the outcome in the absence

of negligence.

      We find no merit in either argument. Dr. Pepple did not concede that

this injury occurs in the absence of negligence. Rather, the expert was asked

whether the American Society of Anesthesiologists’ practice guidelines state

that they are not standards, and that following them does not guarantee any

outcome.    N.T. Jury Trial, 1/2-8/18, at 282-83.         He answered in the

affirmative, merely agreeing that the guidelines do state that. Id. This is

hardly a concession by Plaintiff’s expert that arterial cannulation occurs in the

absence of negligence.     Furthermore, we note that even Defendant Zepp

dismissed the notion that the orientation of Mrs. Lageman’s vein over the

carotid artery was unusual or that it complicated the placement of the central

line. Defendant Zepp testified that, “over fifty percent of patients over the

age of sixty have the same orientation as Mrs. Lageman,” and that he was

quite familiar with it. Id. at 313. Dr. Pepple maintained that this anatomical

presentation “just requires vigilance.” Id. at 231.


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      Defendant Zepp contends that Plaintiff also failed to satisfy the second

element for the application of res ipsa loquitur. He maintains that the harm

herein was the stroke, and that “placing a central venous line into an artery

in and of itself is not an injury.” Appellee’s brief at 13. He argues that Ms.

Lageman did not sufficiently eliminate other causes of her stroke or offer

competent evidence from a neurologist that her stroke was caused by the

central line placement. Id. According to the defense, Dr. Pepple’s testimony

interpreting the neurology notes in the record was “weak” and failed to rule

out other possible causes of stroke. Id. at 15.

      Res ipsa loquitur obviates the need for direct evidence that defendant’s

conduct was the proximate cause of the plaintiff’s injury by allowing a plaintiff

to eliminate other responsible causes of the event. See Fessenden, supra

at 1231; see also Quinby, supra at 1072-73. The critical inquiry as to the

second element of res ipsa is whether a particular defendant is the responsible

cause of the event. Defendant Zepp admitted that he alone was responsible

for placing the large bore catheter in Mrs. Lageman’s carotid artery rather

than her jugular vein.

      Dr. Pepple explained the connection between arterial cannulation and

stroke as follows. When a catheter is mistakenly placed in an artery, clots

form on the catheter itself, break off, and become emboli. N.T. Jury Trial,

1/2-8/18, at 223.    He further explained that emboli in the carotid artery

particularly, which feeds the brain, can result in a stroke and hemiplegia. Id.


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Based upon his education, knowledge, experience, and review of the

neurology records, Dr. Pepple also opined that causes other than the arterial

cannulation were effectively ruled out as the cause of Mrs. Lageman’s stroke.5

We see no indication that Defendant Zepp challenged Dr. Pepple’s competency

to render such an opinion in the court below.         Furthermore, he was not

required to be a neurologist to offer causation testimony.        See 40 P.S. §

1303.512.

       Finally, Defendant Zepp distinguishes the facts herein from those in

Quinby and Jones, on the basis that neither involved complex factual

disputes as to the cause of the injury. Id. at 15. He analogizes the situation

herein to that in Toogood v. Rogal, 824 A.2d 1140 (Pa. 2003) (plurality),

where the Supreme Court found res ipsa inapplicable to a paravertebral nerve

block injection that allegedly punctured the plaintiff’s lung. He also directs

our attention to Starr v. Allegheny Gen. Hosp., 451 A.2d 499 (Pa.Super

1982), where this Court affirmed the trial court’s refusal to permit the plaintiff

to use res ipsa to establish a prima facie medical malpractice case for

neurological problems allegedly caused by the negligent repair of a skull

fracture.




____________________________________________


5 Dr. Hudson and Defendant Zepp both conceded that arterial cannulation
increased the risk of stroke. Moreover, the defense did not offer any expert
testimony positing an alternative theory for Mrs. Lageman’s stroke.

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       The holding in Toogood is readily distinguishable.               Conspicuously

absent therein was expert medical testimony explaining the complicated

medical procedure and opining that the injury did not ordinarily occur in the

absence of negligence. In contrast, Plaintiff herein offered the requisite expert

medical testimony linking the negligent arterial cannulation to stroke.6

       Starr involved claims of negligent post-operative treatment following

surgery to repair a depressed skull fracture, which the plaintiff claimed

resulted in slurred speech, blurred vision, and neurological injuries. This Court

concluded, after a thorough review of the record, that there was insufficient

evidence    eliminating     “other    responsible   causes”   besides    the   alleged

negligence of the appellees, and that the injuries were not the type that would

not have ordinarily occurred but for the negligence of the appellees. In the

instant case, Dr. Pepple testified unequivocally herein that, to a reasonable

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

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

He also rendered the opinions that arterial cannulation “exponentially”

increases the risk of stroke, and further, that there were no other causes for

the stroke identified by the neurologist. N.T. Jury Trial, 1/2-8/18, at 232.

Thus, Starr is inapposite.




____________________________________________


6 Toogood was a plurality opinion, and the Quinby Court expressly declined
to be bound by its reasoning.

                                          - 20 -
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        Notably, in denying the requested res ipsa charge, the trial court did not

cite any perceived deficiency in the connection between arterial cannulation

and stroke. When Plaintiff renewed her request for the charge, the trial court

maintained that it was not “obvious” that the mistake at issue could not occur

in the absence of negligence.7          N.T. Jury Trial, 1/2-8/18, at 562.       In its

____________________________________________


7   The proposed point for charge on res ipsa loquitur consisted of the following:

              You, as the jury, may infer negligence from the
        circumstances surrounding the injury.          The Plaintiff, Mrs.
        Lageman, may satisfy her burden of proof by producing evidence
        of the Defendant’s negligence by proving that she has been
        injured by a cause of a sort that normally would not have occurred
        in the absence of negligence of the Defendant. The requirements
        of allowing you to infer negligence from the circumstantial
        evidence as well as from the direct testimony of the expert witness
        for the Plaintiff are these:

        1. That the event is of a kind which ordinarily does not occur in
           the absence of negligence.

        2. Other responsible causes including the conduct of the Plaintiff
           and third-party are sufficiently eliminated by the evidence.

        3. The indicated negligence is within the Defendant’s duty to the
           plaintiff.

              In addition to relying upon the Plaintiff’s expert testimony,
        if you chose to do so, you may also draw an inference of
        negligence from the circumstances as I have set them forth above.
        That is that the event usually does not occur in the absence of
        negligence that the conduct of the Plaintiff and other third persons
        are sufficiently eliminated by the evidence and the negligence is
        within the scope of the Defendant’s duty to the Plaintiff. It is clear
        from the evidence that the third requirement is not disputed as
        Dr. Zepp had a duty to the Plaintiff.




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subsequent Rule 1925(a) opinion, the court stated, “we stand by our original

ruling that the particular facts of this case would not present the type of event

that is so obvious that a mistake can occur but for negligence happening.”

Trial Court Opinion, 8/2/18, at 18 (citing N.T., 1/8/18, at 562) (emphasis

added). In other words, the trial court did not see this case as a true res ipsa

case. It described the evidence as “inconclusive as to whether the use of

ultrasound does or does not totally eliminate the risk that a doctor would still

puncture or cannulate the artery rather than a vein.” Id. at 18. It pointed to

the fact that Mrs. Lageman’s anatomy made the procedure more difficult, and

concluded that “the evidence did not establish that more likely than not that

Plaintiff’s injuries were caused by Defendant Zepp’s negligence.” Id. at 19.

Since “the experts shared different views,” the trial court found “the

possibilities were evenly divided between negligence and its absence.” Id.

Hence, the court concluded that “Plaintiff was not entitled to a permissible

conclusion that arterial cannulation does not ordinarily happen unless

someone is negligent.” Id. at 19.

       We disagree. Even the trial court conceded that the expert testimony

of Dr. Pepple “essentially stated that cannulation of the artery cannot occur

unless someone is negligent.” Trial Court Opinion, 8/2/18, at 31 (quoting N.T.


____________________________________________


       Quimby v. Plumsteadville Family Practice Inc., 589 Pa. 183,
       907 A.2d 1061 (2006). Restatement (Second) of Torts, § 328D.

Plaintiff’s Supplemental Requested Point for Charge, 1/8/18, at 2.

                                          - 22 -
J-A11014-19


Jury Trial, 1/2-8/18, at 225-26). As the court noted, Plaintiff’s counsel elicited

that opinion in several ways:

      Plaintiff’s Counsel: Let me put it this way: If the standard of care
             has been properly observed, that all the steps have not only
             been taken, but they were taken correctly and things were
             seen and evaluated correctly, is it possible that this artery
             would have been cannulated to that degree?

      Dr. Pepple: No.

N.T. Jury Trial, 1/2-8/18, at 238. One moment later, Dr. Pepple confirmed

that if a physician’s conduct is within the standard of care, cannulation of the

artery “should not occur.”    Id. at 239.     Thus, Plaintiff offered unequivocal

expert testimony that, in the absence of negligence, arterial cannulation

ordinarily does not occur.

      In our view, expert testimony rendered to a reasonable degree of

medical certainty that arterial cannulation does not ordinarily occur under the

operative conditions described by Defendant Zepp in the absence of

negligence is more than sufficient to “permit the conclusion that it is more

likely than not that [plaintiff’s] injuries were caused by the defendant’s

negligence.” See Restatement (Second) of Torts § 328D cmt. e (1964). Dr.

Pepple did not equivocate. In concluding that Plaintiff failed to offer evidence

that it was more probable than not that negligence caused the event, and that

she was “not entitled to a permissible conclusion that arterial cannulation does

not ordinarily happen unless someone is negligent[,]” the court improperly




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weighed the evidence offered by the defense that Defendant Zepp’s conduct

met the standard of care and that ultrasound is not infallible. Id. at 19.

      As the Restatement explains, “[a] res ipsa charge cannot be dependent

on the weight a judge might give to the testimony offered in support of an

inference of negligence.” Restatement (Second) of Torts § 328D(2) (1964).

See also Sedlitsky, supra at 1316 (“Where the plaintiff sustains his or her

burden, the court must give an instruction on res ipsa loquitur, even if the

defendant has produced a quantity of contrary evidence.”). Rather, “it is the

jury's function to determine whether the inference is to be drawn in any case

where different conclusions might reasonably be reached.” Id. at § 328D(3).

“If reasonable persons may reach different conclusion[s] regarding the

negligence of the defendant, then it is for the jury to determine if the inference

of negligence should be drawn. MacNutt v. Temple University Hospital,

932 A.2d 980, 987 (Pa.Super. 2007).

      Furthermore, where, as here, “the defendant testifies that he has

exercised all reasonable care,” the Restatement commentators recognize that

“the conclusion may still be drawn, on the basis of ordinary human experience,

that he has not.” Restatement (Second) of Torts § 328 D, cmt. n. (1964)

(acknowledging that although the defense offers evidence that there was no

negligence in inspecting elevator, the fact remains that the elevator fell).




                                     - 24 -
J-A11014-19


       The defense expert, Dr. Hudson, did not render an opinion that arterial

cannulation could have occurred herein without any negligence.8 Thus, he did

not directly rebut Dr. Pepple’s expert testimony to that effect. Instead, Dr.

Hudson opined, based upon Defendant Zepp’s account, that the procedure

was performed in an appropriate fashion and sequence. His opinion that the

“use of ultrasound does not eliminate the risk of arterial cannulation,” N.T.

Jury Trial, 1/2-8/18, at 504, sidestepped the real question: whether the

proper use of ultrasound and manometry, the gold standard for confirming

placement of the wire in the vein, before dilating the vessel and inserting the

large bore catheter, virtually eliminates the risk of arterial cannulation. The

defense offered no explanation why ultrasound and manometry, properly

interpreted, did not disclose to Defendant Zepp that the small catheter was in

the artery rather than the vein before he threaded the wire, dilated the vessel,

and inserted the large bore catheter seven inches into the artery.

       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

____________________________________________


8  Dr. Hudson was precluded from offering any opinion that arterial
cannulations occur under similar circumstances in the absence of negligence
because such an opinion was outside the scope of his expert report. However,
Defendant Zepp offered lay opinion testimony, without objection, “that even
in the absence of negligence, we can still have these arterial cannulations.”
N.T. Jury Trial, 1/2-8/18, at 314.


                                          - 25 -
J-A11014-19


arterial cannulation, nor evidence that some other cause was at least equally

likely the cause of Mrs. Lageman’s injury that would dissolve the inference.

Cf. MacNutt, supra (holding no inference permitted as it was disputed “with

equal fairness” whether plaintiff’s injury was a negligent Betadine burn or a

non-negligent herpes zoster outbreak).

      Nor is reliance upon res ipsa foreclosed because Plaintiff’s medical

expert also offered evidence of specific negligence. In Hollywood Shop, Inc.

v. Pa. Gas & Water Co., 411 A.2d 509, 512 (Pa.Super. 1979), we were

persuaded by the Third Circuit’s reasoning in Weigand v. Pennsylvania

Railroad Company, 267 F.2d 281 (3rd Cir. 1959) (applying Pennsylvania

law), that the trial judge erred in refusing to give a res ipsa loquitur instruction

on such facts. In Weigand, the plaintiff was walking between two railroad

tracks when the ground gave way and he fell into a hole five feet deep. In

addition to proceeding on a res ipsa theory, the plaintiff offered an engineer

who testified regarding the drainage conditions and supplied an explanation

for the accident. The court recognized that this was a res ipsa case, “but one

capable of some specific proof regarding the railroad’s negligence.” Id. at

284. It found it “illogical” and “unfair” to force the plaintiff to abandon one of

his theories, the same rationale we subsequently adopted in Hollywood

Shop, in holding that the plaintiff was entitled to a res ipsa charge.

      In D'Ardenne v. Strawbridge & Clothier, Inc., 712 A.2d 318

(Pa.Super. 1998), we noted that there are cases where the evidence “‘falls


                                      - 26 -
J-A11014-19


within the grey zone,’ a factual realm in which a plaintiff presents ‘as specific

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

of the accident.’” Id. at 324 (internal citations omitted, emphasis in original).

We reasoned, “where the plaintiff’s specific evidence of negligence is directly

disputed by the defendant, ‘it may be especially important that the plaintiff

get a res ipsa loquitur charge if he is otherwise entitled to it.’” Id. (citing 33

A.L.R.2d 791, 793 (“An unsuccessful attempt to prove specific negligence on

the defendant’s part, or the introduction of evidence of specific negligence not

clearly establishing the precise cause of injury, will not deprive the plaintiff of

the benefits otherwise available under the [res ipsa] doctrine.”)).

      Recently, in Quinby, our Supreme Court implicitly sanctioned the

plaintiff’s introduction of evidence of specific negligence and concomitant

reliance on the inference of negligence under res ipsa.         The decedent, a

quadriplegic, was placed on an examination table to permit a physician to

remove a facial lesion.       It was undisputed that, after the surgery was

completed, the decedent, who was left unrestrained and unattended on the

examination table, fell to the floor. According to decedent, defendants left

him on his right side; according to defendants, decedent was left on his back

in the center of the table.

      The plaintiff offered expert medical testimony, i.e., direct evidence that

defendants had not complied with the standard of care, which required that

decedent be safely secured on the examination table with side rails or straps,


                                      - 27 -
J-A11014-19


or that someone stay with him at all times. The expert also opined that the

defendants failed to provide a safe environment for the decedent while he was

in the office. In addition to the foregoing direct evidence of negligence, the

physician stated that, “absent extrinsic forces not present” therein, he could

not envision how a quadriplegic could fall from such a table “without there

being a breach of the requisite standard of care.” Quinby, supra at 1067.

       The trial court concluded that the expert’s testimony established a prima

facie case of negligence for submission to the jury. However, it refused the

plaintiff’s request to charge the jury on res ipsa loquitur. Our Supreme Court

held this was error. It reasoned that defendants had a duty to place decedent

on the table in a manner that would insure that he did not fall, and found that

there were no facts indicating that the decedent’s fall resulted from anything

other than defendants’ negligence. The Court concluded that the evidence

satisfied the first element of §328D because, “[s]imply put, in the absence of

negligence, a quadriplegic patient such as Decedent could not fall off an

examination table.” Id. at 202. Hence, although there was sufficient direct

evidence of negligence from plaintiff’s expert to make out a prima facie case,

our Supreme Court held that the trial court erred in also refusing to charge on

res ipsa where all three elements had been met.9

____________________________________________


9The Dissent suggests that our decision in MacNutt v. Temple University
Hospital, Inc., 932 A.2d 980 (Pa.Super. 2007) (en banc), stands for the
proposition that where there is adequate evidence of negligence to support a



                                          - 28 -
J-A11014-19


       Herein, as in Quinby, 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.10 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.

       Although the foregoing issue is dispositive of this appeal, we address

another issue that may recur on retrial: the propriety of permitting Defendant


____________________________________________


cause of evidence for negligence, a plaintiff is precluded from proceeding on
a theory of res ipsa. While that was indeed the trial court’s rationale in
refusing to instruct the jury on res ipsa, we affirmed on a different basis: that
the plaintiff failed to satisfy the three elements for the application of res ipsa
and that “it was not in reality a res ipsa loquitur case.” Id. at 991-92.
Notably, in Quinby v. Plumsteadville Family Practice, Inc., 907 A.2d 1061
(Pa. 2006), despite the fact that direct evidence of negligence was introduced,
our Supreme Court held that the trial court erred in refusing to charge the
jury pursuant to res ipsa where all three elements were established. Our
distinguished colleague’s fear that the charge will be given in every
malpractice case if we allow a plaintiff to seek a res ipsa instruction even when
he has introduced direct evidence of negligence fails to appreciate how difficult
it is to establish all three elements of the doctrine.

10  Dr. Pepple emphasized that this was not merely a posterior wall puncture
of the jugular vein and inadvertent entry into the artery. Dr. Zepp inserted
the catheter seven inches into the artery while supposedly using manometry,
the gold standard for ensuring that the catheter is properly in the vein.

                                          - 29 -
J-A11014-19


Zepp to conduct either a live or videotaped demonstration of proper central

line placement for the jury.

      The defense proposed to play for the jury a videotaped demonstration

filmed the night before of Defendant Zepp performing a central line placement

on a mannequin. The avowed purpose in demonstrating the procedure was

to educate the jury.    Plaintiff objected that the video had not been timely

identified as a trial exhibit, it did not accurately depict the procedure

performed on Mrs. Lageman, it was misleading and prejudicial, and, it created

a “halo effect” around the defendant physician that was more prejudicial than

probative.   N.T. Jury Trial, 1/2-8/18, at 115.     The trial court, upon being

apprised that the video contained commentary, excluded the video on two

grounds: 1) it had not been timely identified, and 2) the commentary was

hearsay. Id. at 118.

      Undaunted, the defense proposed that Defendant Zepp be permitted to

conduct a live demonstration of the procedure on a mannequin in the

courtroom. Plaintiff renewed her earlier objections. The trial court overruled

the objections, finding the demonstration relevant to help the jury understand

the procedure. Later, in support of its ruling at trial, the trial court observed

that it was “clear to the jury that this demonstration was not illustrative of the

circumstances in Plaintiff’s case.”      Trial Court Opinion, 8/2/18, at 21.

Furthermore, the court maintained that the demonstration clearly showed how

the initial position of the needle was “plainly visible” with the use of


                                      - 30 -
J-A11014-19


ultrasound, and suggested that this worked to Mrs. Lageman’s benefit, rather

than her detriment. Id. at 22.

      The law is well settled that the admission of evidence rests within the

discretion of the trial court and will not be overturned absent an abuse of

discretion or misapplication of the law. Cimino v. Valley Family Medicine,

912 A.2d 851, 853 (Pa.Super. 2006). Moreover, in order for an evidentiary

ruling to constitute reversible error, it must have been harmful or prejudicial

to the complaining party.   Phillips v. Lock, 86 A.3d 906, 920 (Pa.Super.

2014).

      The trial court permitted Defendant Zepp to stand before the jury and

demonstrate on a mannequin the performance of a central line placement. He

narrated each step of the process, explained why he was doing it, and pointed

out significant details germane to the case as he went along. The mannequin

was obviously not the same as Mrs. Lageman. Accordingly, Defendant Zepp

told the jury that he could not perform all steps of the procedure on the

mannequin, and, at some point, he would stop and talk them through the

remainder of the process. Id. at 297.

      Defendant Zepp demonstrated short-axis view ultrasound, and pointed

out the artery and the vein. He highlighted marks on the ultrasound screen

showing the depths. He showed how, as he approached the vein, the tissues

started to move. When the needle entered the vein, and as he drew back on

the syringe, he showed the jury that blue blood was visible, “venous blood for


                                    - 31 -
J-A11014-19


the mannequin’s purposes.” Id. at 299. He pointed out to the jury the tip of

the needle, which looked like a bright white dot in the middle of dark fluid.

Id. at 299-300. He demonstrated the use of pressure manometry to confirm

the placement of the small catheter before threading the wire in the vein.

Defendant Zepp stopped before inserting the dilator, as it was not a good idea

to place a dilator in a mannequin. After explaining how he would thread the

wire, place the large catheter in the vein, and sew up the site, he told the

jury: “It’s at that point I took one of these ports, and I hooked it up to the

waveform measure, the transducer, and it transduced arterial rather than

venous, and that gave me my confirmation.” Id. at 302. He then related to

the jury that he contacted the general surgeon on call, and asked the nurse

to summon the vascular surgeon, obviously referencing what occurred with

Mrs. Lageman specifically. Hence, what was presented to the jury as a generic

demonstration of a central line procedure was apparently a reenactment of

the procedure Defendant Zepp maintained that he actually performed on Mrs.

Lageman.

      We agree that, in some circumstances, demonstrative evidence

depicting a medical procedure may be helpful to the jury. Such evidence may

take the form of a video depicting a similar procedure, or, as here, a video or

live demonstration using a mannequin, assuming that it can adequately

illustrate   the   procedure   at   issue.      However,   in   either   case,   such

demonstrations are usually undertaken by experts.               We could find no


                                       - 32 -
J-A11014-19


Pennsylvania cases discussing the propriety of permitting a defendant

physician to conduct such a demonstration.         Furthermore, in this case,

Defendant Zepp was designated as a fact witness only.

      Our research revealed a New York appellate decision in Glusaskas v.

Hutchinson, 544 N.Y.S. 2d 323 (1st Dept. 1989), in which the issue was the

propriety of the admission of a videotape prepared for trial by the defendant

physician of his performance of a similar surgery on another patient three

weeks before the start of trial. As herein, the film was offered ostensibly to

acquaint the jury with the surgical procedure at issue. Despite the plaintiff’s

objection that the videotape was inflammatory and prejudicial, the court ruled

that it was relevant for the purpose articulated, and not prejudicial.

      On appeal, the court took a different view of the evidence. It noted that

the videotape suggested that because the defendant had successfully

operated on another patient, he had used the same amount of care in

performing the decedent’s surgery.      Under New York law, “evidence of a

person’s habitual conduct under similar circumstances in respect to using care

is inadmissible for the purpose of raising an inference that he exercised the

same amount of caution on the occasion when the injury in question was

sustained.”   Id. at 325.     Furthermore, the court pointed out that the

circumstances depicted on the video and those involving the decedent were

not alike. Moreover, the videotaped procedure was undertaken more slowly

and deliberately. The court described the impact of the video, enhanced by


                                     - 33 -
J-A11014-19


the defendant’s commentary, as “devastating.”        The court concluded that

“[t]he implication is clear that [defendant doctor], the meticulous and

experienced doctor that he is, having just demonstrated to the jury the

enormous care which he generally takes in operating on his patients, was not

apt to have been negligent in [decedent’s] case.” Id. at 326.

      The court ruled that the video was inadmissible character evidence

suggesting that the defendant physician used the same care on the occasion

in question. The New York court added that the use of an instructional film in

a medical malpractice case might be justified in some circumstances, such as

where an expert is demonstrating a particular procedure.        However, the

videotape was a “self-serving device prepared by a defendant” to disprove his

negligence, and did not constitute relevant evidence of anything. Id. at 326-

27.   Citing the significant potential for prejudice, the court held it was

reversible error to admit it, and ordered a new trial.

      We find Defendant Zepp’s in-court demonstration of the placement of

central line to be an abuse of discretion for many of the same reasons. The

setting displayed Defendant Zepp’s care and skill in performing a difficult

procedure. As in Glusaskas, the demonstration suggested that Defendant

Zepp used the same amount of care in performing Mrs. Lageman’s central line

placement as he used on the mannequin. It imbued Defendant Zepp with the

aura of an expert expounding on the proper way to place a central line, and

created the impression that he was incapable of negligence. It also allowed


                                     - 34 -
J-A11014-19


him to simulate ultrasound and manometry results consistent with his version

of the events. His commentary permitted him to segue seamlessly from what

typically happens into what he alleged happened herein.

      We agree with Mrs. Lageman that the demonstration by Defendant Zepp

was misleading, confusing, and that it was unfairly prejudicial to her. “‘Unfair

prejudice’ supporting exclusion of relevant evidence means a tendency to

suggest decision on an improper basis or divert the jury’s attention away from

its duty of weighing the evidence impartially.” Parr v. Ford Motor Co., 109

A.3d 682, 696 (Pa.Super. 2014) (quoting Commonwealth v. Wright, 961

A.2d 119, 151 (Pa. 2008)). Since the defendant physician was portrayed as

both an expert and one intimately familiar with the facts, his credibility was

bolstered in the eyes of the jury. Plaintiff styled it a “halo effect,” and we find

the term apt. The demonstration had some probative value but a considerably

higher potential for prejudice.

      The trial court brushed off notions of prejudice by insisting that the jury

was aware that “the demonstration was not illustrative of the circumstances

in Plaintiff’s case.”   See Trial Court Opinion, 8/2/18, at 21.     We disagree.

Defendant Zepp blurred that distinction when he began to discuss the specific

circumstances at issue in the case. The demonstration implied that Defendant

Zepp performed the procedure with the same care and skill on Mrs. Lageman

as he displayed on the mannequin. Furthermore, it suggested that despite

the exercise of due care, the catheter “transduced arterial rather than venous”


                                      - 35 -
J-A11014-19


in the end, creating the impression that such events occur in the absence of

negligence.

      Moreover, we do not agree with the trial court that Defendant Zepp’s

emphasis on the fact that the tip of the needle was plainly visible with

ultrasound alleviated any prejudice to Plaintiff.   Defendant Zepp drew the

jury’s attention to what he represented was the tip of the needle, and

explained how it was specially machined to be visible under ultrasound. Such

testimony specifically refuted Dr. Pepple’s testimony that Defendant Zepp was

negligent in his use of short-axis view ultrasound as he could not see the tip

of the needle; it undermined the notion that he could have placed the tip of

the needle in the artery rather than the vein.

      In short, the fact that the demonstration was conducted by Defendant

Zepp rather than an expert witness was improper, unfairly prejudicial, and

cannot be deemed harmless.

      Judgment vacated.       Case remanded for new trial.        Jurisdiction

relinquished.

      Judge Olson joins the opinion.

      Judge Stabile files a dissenting opinion.




                                     - 36 -
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     Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/20/2020




                          - 37 -
