Wade Clark Mulcahy LLP

<p style="text-align: justify;">On July 20, 2020, the Pennsylvania Superior Court granted a new trial after finding that a plaintiff was improperly precluded from pursuing all possible legal theories available to her.</p>
<p style="text-align: justify;">Adrienne <em><a href="https://www.wcmlaw.com/wp-content/uploads/2020/07/Lageman.pdf">Lageman</a></em> filed a complaint for medical negligence after she suffered a stroke while undergoing a medical procedure at York Hospital. She alleged that the defendant anesthesiologist John Zepp improperly placed a central line into her jugular vein, which caused a stroke.</p>
<p style="text-align: justify;">In making out her <em>prima facie</em> case of negligence, Lageman advanced two theories. First, she argued that defendant Zepp was negligent for using a short-axis ultrasound to place the central line. Second, Lageman sought to avail herself of the inference afforded by the evidentiary doctrine of <em>res ipsa loquitor,</em> meaning literally, “the thing speaks for itself.” Prior to submission of the case to the jury, Lageman presented a proposed jury charge based on <em>res ipsa loquitor</em>. However, the trial court refused to give a <em>res</em> <em>ipsa</em> instruction because, it determined, the case was not one where it was “obvious” a <em>res ipsa</em> instruction applied. “Thus, the jury was not instructed that it was permitted to infer the harm suffered by Ms. Lageman was caused by defendant Zepp’s negligence.”</p>
<p style="text-align: justify;">The Pennsylvania Superior Court found that the trial court improperly refused to give the jury a <em>res ipsa</em> instruction and granted Lageman a new trial. The court reasoned that Lageman showed the three required elements for <em>res ipsa</em> and, although it may not have been obvious, the trial court should have instructed the jury to consider the theory.  Accordingly, the court reversed the trial court’s decision and granted a new trial.</p>
<p style="text-align: justify;">The Pennsylvania Superior Court’s decision in <em>Lageman</em> demonstrates the wide latitude that Pennsylvania courts give to plaintiffs in choosing what legal theory to pursue. Although <em>res ipsa</em> was not obvious—or even likely—the court granted plaintiff a new trial because plaintiff should have had the opportunity to pursue the theory. The <em>Lageman</em> decision is a reminder for defendants that just because a plaintiff’s legal theory is not perfect, it does not mean the plaintiff cannot pursue it.</p>
<p style="text-align: justify;">Thanks to John Lang for his contribution to this post. Please contact <a href="mailto:Haquino@wcmlaw.com">Heather Aquino</a> with any questions.</p>