105 A.3d 740
Pa. Super. Ct.2014Background
- Pomroy sued Dr. Rosato and Hospital of the University of Pennsylvania for medical malpractice; no claim of informed consent failure or negligent operation.
- Plaintiff alleged Dr. Rosato’s standard of care deviations; evidence produced three conflicting standards of care from appellees’ expert.
- Pomroy had large polyp; colonoscopic removal risked perforation, leading to surgical referral to Dr. Rosato.
- Pomroy and doctor discussed risks; Pomroy elected surgical removal, fearing perforation from colonoscopy.
- Post-trial, jury ruled for Pomroy; trial court denied JNOV; on appeal, court reversed due to lack of causation and an established standard of care.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Causation sufficiency in medical negligence | Pomroy must prove but-for causation via expert testimony. | No evidence shows surgery caused decedent’s death; speculation improper. | Record fails to establish causation; JNOV warranted. |
| Existence of a valid standard of care | Dr. Drew articulated a standard requiring saline endoscopy be offered. | Standard of care cannot rely on informed consent claims; only proper standard is medical negligence. | No valid, consistently defined standard of care; multiple inconsistent standards render verdict unsupported. |
| Informed consent claim not pled or applicable | Failure to obtain informed consent could support negligence. | Informed consent breach not pled; battery concerns arise from consent issues. | Informed consent claim not pled; no medical negligence theory rests on consent. |
| Whether plaintiff showed saline endoscopy would have been chosen | Dr. Rosato’s failure to push saline could have changed decision. | Pomroy would not have chosen saline; she feared perforation and preferred surgery. | No evidence that Pomroy would have selected saline; causation not proven. |
| Overall sufficiency of evidence supporting verdict | Evidence supports deviation from standard of care and causation. | Record lacks a viable standard and causation; verdict speculation. | Record deficient; reversal of judgment appropriate. |
Key Cases Cited
- Griffin v. Univ. of Pittsburgh Med. Center-Braddock Hosp., 950 A.2d 996 (Pa. Super. 2008) (standard for reviewing denial of JNOV in medical malpractice)
- Toogood v. Owen J. Rogal, D.D.S., P.C., 824 A.2d 1140 (Pa. 2003) (requires expert testimony for medical malpractice causation/standard of care)
- Montgomery v. Bazaz-Sehgal, 798 A.2d 742 (Pa. 2002) (informed consent duty distinguished from malpractice)
- Sinclair by Sinclair v. Block, 633 A.2d 1137 (Pa. 1993) (material information required for informed consent)
- Gouse v. Cassel, 615 A.2d 331 (Pa. 1992) (lack of informed consent equated to lack of consent)