Lageman v. Zepp

237 A.3d 1098

Elizabeth H. LAGEMAN, BY AND THROUGH her Power of Attorney 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

No. 756 MDA 2018

Superior Court of Pennsylvania.

Argued May 7, 2019

Filed July 20, 2020

Reargument Denied September 22, 2020

Joseph M. Melillo, Harrisburg, for appellant.

Lawrence F. Stengel, Lancaster, for appellee.

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

OPINION BY BOWES, J.:

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.

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.

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 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 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 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 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 , 539 Pa. 596, 654 A.2d 535, 540 (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

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