HARRISBURG - A state appeals court has revived a medical malpractice lawsuit against Geisinger Medical Center, in a win for Pennsylvania's plaintiff lawyers.
A three-judge panel on Jan. 28 ruled for Michael McAleer, who suffered complications from surgery to remove a polyp in his colon. They included a blood clot, ischemia in the right colon and necrosis of part of his right bowl, leading to several more surgeries.
Dr. Christopher Buzas performed a right hemicolectomy, allegedly the wrong choice. Dr. Ralph Silverman testified for McAleer the standard of care required either a colonoscopy or an endoscopic mucosal resection.
A Montour County judge in November 2023 granted summary judgment for the defendants. That judge found McAleer's claims were in the nature of battery involving lack of informed consent and not negligence, though McAleer's complaint didn't allege a lack of informed consent.
The case turned on its relation to a 2014 ruling by the Superior Court, Pomroy v. Hospital of the University of Pennsylvania. The trial court found the issues similar enough to warrant judgment for Geisinger Medical Center, but the state's plaintiff lawyer group - the Pennsylvania Association for Justice - urged the Superior Court to find otherwise.
And it did. Pomroy concerned a woman who died following polyp removal. Her doctor had given her two options - saline colonoscopy or surgical removal - and explained the risks of both. He recommended the colonoscopy.
The woman picked surgery, partly because of advice from another physician. The lawsuit claimed the doctor should have insisted on the colonoscopy and refused to perform surgery, against the woman's wishes.
Though a trial court ruled for her estate, the Superior Court reversed. It found there was no evidence that showed if the doctor had rejected surgery, the woman would have picked a colonoscopy.
"As such, the doctor's failure to insist on one procedure over the other was not the cause of her fatal injuries," Judge Jack Panella wrote in the McAleer opinion.
So how was McAleer's case different? The trial court judge said Pomroy "held that a failure to advise or offer options or alternatives is inherent in a battery/informed consent case."
Dr. Buzas was told by McAleer that the polyp needed removed and Buzas was to figure out the best way to do so.
"Here, in contrast, there was no evidence that McAleer would have refused a colonoscopy under general anesthesia or an endoscopic procedure," Panella wrote.
"Instead, Dr. Buzas did not even give McAleer any options before performing the surgery that caused his damages."
Buzas picked surgery even though he allegedly failed to properly assess McAleer. The Superior Court's ruling could set up a trial, at which one of McAleer's previously disqualified experts could possibly be allowed to testify as to the standard of care allegedly breached by Buzas.
The Superior Court ordered the trial judge revisit the decision disqualifying Dr. Isaac Raijman, who would say Buzas failed to fully assess McAleer.