Superior Court reverses $19.5M medical malpractice verdict

By Jim Boyle | Nov 24, 2014

A surgeon at the University of Pennsylvania Hospital provided a patient enough

information to give informed consent to a risky procedure that led to her death in 2008, according to a ruling by the Pennsylvania Superior Court that reversed a $19.5 million judgment rendered by the Philadelphia Court of Common Pleas.

The three-judge panel found that the expert witness testifying for the plaintiff, George Pomroy, gave unreliable opinions regarding the standard of care provided by Dr. Ernest Rosato, the surgeon who performed a polyp removal procedure for Pomroy's wife, Marianne. She died shortly after the operation, prompting Pomory to file the medical malpractice suit at the Philadelphia Court of Common Pleas against Rosato and the University of Pennsylvania Hospital.

According to the opinion written by Superior Court Judge Jack Panella, the Pomroys' personal physician proposed two methods to remove the large polyp from Marianne's colon, either by saline colonoscopy or endoscopy, or surgery. Their doctor recommended the surgery, saying that injecting saline to increase the distance between the polyp and the intestine lining could perforate the colon.

Based on their doctor's referral, the Pomroys met with the now deceased Rosato on Oct. 14, 2008, who went over the possible risks of the surgery, according to Pomroy's testimony. Pomroy told the court that his wife feared perforating her bowels through the colonoscopy option and did not waver from her decision.

The medical malpractice suit did not address the actual procedure performed by Rosato. Rather, it claims that the doctor failed to meet the standard of care by making the risks of surgery clearer to Marianne. The common pleas judge found that Rosato failed to prove he did not breach the standard of care by performing the surgery instead of the endoscopic method.

According to the Superior Court opinion, in order for a medical malpractice suit to become successful, a plaintiff must prove, through expert testimony, that “but for” the defendant’s alleged negligent conduct, the harm suffered by the plaintiff would not have occurred. The testimony failed to achieve that criteria, the panel ruled.

"After careful review of the record, we agree with Dr. Rosato’s position that no evidence was offered to prove that Mrs. Pomroy would have changed her mind and pursued saline endoscopy if Dr. Rosato had refused to provide her with the surgical removal option," the opinion says.

Testimony showed that Pomroy feared colon perforation, a risk that exists as a consequence of the saline endoscopy treatment. She also knew of the risks associated with the surgical removal of the polyp. There is no cause of action or allegation that she was not properly advised of the risks of both procedures and that she did not give informed consent. After having been advised of the risks independently associated with both of her treatment options and, knowing those risks, Pomroy elected to have the surgery.

The expert testifying for the plaintiffs also submitted an impossible situation for Rosato, suggesting that if Pomroy continued to insist on the surgery, he should have declined to perform the procedure.

"[The] implicitly proffered standard of care in these circumstances would leave a treating physician in a no-win situation," the opinion says. "The physician could refuse to treat the patient according to the patient’s wishes, leaving that patient at an increased risk of developing cancer, but apparently insulating the physician from malpractice claims."

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