By its decision dated November 9, 2014, the Superior Court of Pennsylvania (“Superior Court”) overturned a Pennsylvania medical malpractice jury verdict in favor of the plaintiff in the amount of $19.5 million involving the death of the plaintiff’s wife from complications following polyp-removal surgery in 2008.
The medical malpractice claim against the surgeon did not allege the lack of informed consent for the surgery or that the surgery was performed negligently – the malpractice claim against the surgeon was based on the defendant surgeon’s alleged breach of the standard of care by not insisting that the decedent undergo a saline colonoscopy, and when she refused, the defendant surgeon should have rejected her request to have the polyp removed surgically.
The Underlying Facts
The plaintiff’s wife had a long history of gastrointestinal issues and multiple abdominal surgeries. Her long-time gastroenterologist advised the woman that she had a large polyp in her colon that was possibly cancerous. The gastroenterologist offered the woman several treatment options. Because of the large size of the polyp, there was concern that removing the polyp during a colonoscopy would risk perforating the woman’s colon. The gastroenterologist discussed with the woman a saline colonoscopy whereby saline solution is injected through the colonoscopy into the area beneath the lining of the intestine to increase the distance between the lining and the outer wall, thereby reducing the risk of perforation.
Because of the size of the woman’s polyp and her concern that her colon may be perforated if the polyp were removed during a regular colonoscopy (which concern her husband acknowledged), the gastroenterologist recommended surgery and referred the woman to the defendant surgeon.
It was uncontradicted that the defendant surgeon discussed the possible risks associated with the surgical removal of the woman’s polyp when she met with the surgeon during October 2008. Nonetheless, the woman continued to insist on the surgical removal of her polyp, rejecting a colonoscopy (saline or otherwise) to remove the polyp.
The medical malpractice case filed against the defendant surgeon resulted in the jury’s verdict in favor of the plaintiff in February 2013. The defendant surgeon appealed, arguing that there was no legally sufficient evidence upon the jury could have found that he was negligent or that negligence was the cause of the woman’s death. The Superior Court agreed, concluding that there was no evidence of causation to support the jury’s verdict.
The Superior Court noted that in a negligence action, the plaintiff’s burden of proof with regard to causation has two components: proving (1) cause-in-fact and proving (2) legal or proximate cause. In a medical malpractice action, expert testimony is required to establish causation – 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 plaintiff alleged that the breach of the standard of care by the defendant surgeon was his failure to insist that the woman undergo the saline colonoscopy, and that when she refused, he should have rejected her request to have the polyp removed surgically. Therefore, the plaintiff had to prove “but for” the defendant surgeon’s failure to insist upon the saline method, that the woman would have rejected the surgical option, and rather would have elected the colonoscopic method.
After reviewing the record, the Superior Court concluded that there was no evidence offered to prove that the woman would have changed her mind and pursued saline colonoscopy if the defendant surgeon had refused to provide her with the surgical removal option – after having been advised of the risks independently associated with both of her treatment options and, knowing those risks, the woman elected to have the surgery, and the woman preferred the surgical method in order to avoid having to undergo possible emergency surgery should she have elected to choose the colonoscopic method.
Source George Pomroy, Individually and as Executor of the Estate of Mariann Pomroy, Deceased v. Hospital of the University of Pennsylvania and Anthony G. Rosato, Executor of the Estate of Ernest F. Rosato, M.D., Deceased, No. 2043 EDA 2013, 2014 PA Super 257.
If you or a family member may have suffered injury or other substantial harm as a result of medical negligence in Pennsylvania or in another U.S. state, you should promptly consult with a Pennsylvania medical malpractice attorney or a medical malpractice attorney in your state who may investigate your medical malpractice claim for you and represent you in a medical malpractice case, if appropriate.
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