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The Legal Intelligencer, Nov. 24, 2014: PA Superior Court Throws Out $19.5M Med Mal Verdict

by P.J. D'Annunzio, The Legal Intelligencer

The state Superior Court has reversed a $19.5 million verdict awarded to the husband of a woman who died from complications related to polyp-removal surgery.

A three-judge panel ruled the Philadelphia trial court erroneously denied the defendant's motion for judgment notwithstanding the verdict because there was not enough evidence to support the jury's award to plaintiff George Pomroy, executor of the estate of his wife, Mariann Pomroy.

Philadelphia Court of Common Pleas Judge Mary Colins originally ruled the now-deceased defendant, Dr. Ernest F. Rosato, a surgeon at the Hospital of the University of Pennsylvania—by way of his estate's executor—failed to show that Rosato did not breach the standard of care in performing colon surgery instead of an endoscopic procedure on Mariann Pomroy.

However, Superior Court Judge Jack A. Panella wrote in the court's opinion that it was George Pomroy who failed to support his assertion that Rosato should have persuaded his wife to opt for a saline endoscopy procedure.

"Appellees had to prove 'but for' Dr. Rosato's failure to insist upon the saline method endoscopically, that Mrs. Pomroy would have rejected the surgical option, and rather would have elected the colonoscopic method," Panella explained. "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."

After Rosato performed the surgery, Mariann Pomroy experienced an "unusual" amount of blood loss, acute pain, an infection, altered mental status and a collapsed lung, according to Colins' opinion. Pomroy's deteriorating condition necessitated a second surgery Nov. 2, 2008, to address abdominal sepsis.

Later, Pomroy received a tracheotomy and was fitted with a feeding tube and colostomy bag. She was transferred to a long-term care facility, but returned to the hospital because of continued internal bleeding. In total, Pomroy spent 305 days in the hospital.

In the months after the surgery, Pomroy suffered a stroke, kidney failure, full-body infection, delusions that required her to be restrained, severe incontinence, and several other ailments. According to Colins, Pomroy died Aug. 12, 2010.

George Pomroy filed suit against Rosato and the hospital Oct. 22, 2008. The jury returned its verdict Feb. 25, 2013, broken down into $10.5 million in wrongful-death damages and $9 million in survival damages.

Colins, who upheld the verdict, said, "Taking into consideration all the facts and circumstances of the extent and duration of Mrs. Pomroy's injuries, this court will not find that the jury's large verdict was unlawful,"

Panella said, however, that Mariann Pomroy was properly informed of the potential risks of both procedures and made her own decision. Additionally, Panella said Pomroy was especially concerned about the risk of colon perforation associated with the saline procedure.

"After having been advised of the risks independently associated with both of her treatment options and, knowing those risks, Mrs. Pomroy elected to have the surgery," Panella said. "Furthermore, she preferred the surgical method in order to avoid having to undergo emergency surgery should she have elected to choose the colonoscopic method."

Panella reiterated that there was no evidence whatsoever that Mariann Pomroy would have chosen the saline endoscopy over the surgery.

Furthermore, Panella said George Pomroy failed to assert a valid standard of care for the medical malpractice claim.

This is because the plaintiff's expert, Dr. Michael Drew, gave three conflicting definitions of Rosato's standard of care during testimony, Panella said.

Drew's three analyses of the standard of care, according to Panella, were that Rosato should have offered to pursue the saline method; in failing to pursue the saline method, he deviated from the standard of care; and despite having received Mariann Pomroy's consent to do the surgery, Rosato should have still pushed for the saline procedure.

Panella said Drew's definitions would put doctors in a legal no-win scenario.

"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. In the alternative, the physician could treat the patient according to the patient's expressed preferences following an informed consent, but then be exposed to malpractice claims even though there are no criticisms of the surgery itself. We decline to create such a trap for medical professionals, and we find no precedent in Pennsylvania law to support this standard," Panella said.

The plaintiff's attorney, Laura Feldman of Feldman & Pinto, did not return a call seeking comment.

Defense counsel Charles A. Fitzpatrick III of Rawle & Henderson said, "We're very pleased with the court's decision and are very happy for the Rosato family. ... There was never an issue as to whether Dr. Rosato gave informed consent and there were no issues as to the way he performed the surgery."

P.J. D'Annunzio can be contacted at 215-557-2315 or pdannunzio@alm.com.  Follow him on Twitter @PJDannunzioTLI.