PENNSYLVANIA
MEDICAL MALPRACTICE
$19.5 Million Jury Verdict Vacated

by Patrice O’Brien and Charles A. Fitzpatrick, III

On November 19, 2014, the Superior Court of Pennsylvania reversed a jury’s verdict and entered judgment notwithstanding the verdict in a case in which $19.5 million was awarded to the widow of a woman who died due to complications related to a polyp removal.  The award had been entered against the Estate of Ernest Rosato, M.D., a surgeon at the Hospital of the University of Pennsylvania, who was defended by Charles A. Fitzpatrick, III, of Rawle & Henderson LLP’s Philadelphia office.

The case involved the death of a 55-year-old married woman whose medical history was significant for gastrointestinal issues and multiple abdominal surgeries.  In 2008, Mrs. Pomroy was advised by her longtime gastroenterologist, Dr. Fanelli, that she was suffering from a large, possibly cancerous, polyp in her colon. 

Dr. Fanelli discussed treatment options with her, which included removing the polyp during a saline colonoscopy.  A saline colonoscopy is a procedure whereby saline solution is injected through the colonoscope into the area beneath the lining of the intestine, thereby increasing the distance between the lining and the outer wall and decreasing the risk of perforation.  However, because of the large size of the polyp, Dr. Fanelli was concerned about the risk of perforation during the procedure.  At trial, Mr. Pomroy confirmed that his wife was also concerned about the risk of perforation, testifying: “(M)y wife…said she don’t (sic) want to take a chance of perforating her bowel…”  As such, Dr. Fanelli recommended they consider surgical removal of the polyp and referred her to Dr. Rosato, who performed such surgeries.
Mr. and Mrs. Pomroy met with Dr. Rosato, who reviewed the risks involved with the surgical removal of the polyp.  The risks included general surgical risks such as infection, bleeding and death, as well as the possibility of leakage at the site of the anastomosis, requiring a second surgery.  After discussing the risks, Dr. Rosato recommended that Mrs. Pomroy undergo the saline colonoscopy method as it was the least risky procedure.   Despite Dr. Rosato’s recommendation, Mrs. Pomroy insisted on the surgical option.  Mr. Pomroy’s uncontradicted testimony at trial was that his wife feared having the polyp removed during a colonoscopy:

Well, she said she didn’t want to take the chance of having her bowel perforated and then have to have an emergency surgery…. She said to me that she was afraid because Dr. Fanelli had said that there was a risk of perforation and it was too large to do that, that she really would not want to have that done.

In accordance with Mrs. Pomroy’s wishes, Dr. Rosato scheduled the procedure and after obtaining her informed consent, surgically removed Mrs. Pomroy’s polyp at the Hospital of the University of Pennsylvania.  Although there were no problems during the surgery, Mrs. Pomroy suffered a series of post-operative complications that resulted in an extended hospital stay and ultimately her unfortunate death. 

Mr. Pomroy filed suit against Dr. Rosato alleging medical malpractice.  At trial, Mr. Pomroy did not claim that Dr. Rosato performed the surgery improperly or that he failed to obtain Mrs. Pomroy’s informed consent.  Rather, plaintiff’s sole theory of liability against Dr. Rosato was that he was negligent in not insisting that Mrs. Pomroy undergo the saline colonoscopy despite Mrs. Pomroy’s insistence that she wanted the surgical procedure.  After brief deliberations, the jury returned a verdict in Mr. Pomroy’s favor in the amount $19.5 million consisting of $10.5 million in wrongful death damages and $9 million in survival damages.  After the trial court denied both Dr. Rosato’s motion for a judgment notwithstanding the verdict and his post-trial motions, Dr. Rosato appealed.

In reversing the jury’s award and entering judgment in favor of Dr. Rosato, the Superior Court noted that at trial, Mr. Pomroy had failed to establish through expert testimony a valid standard of care for his medical malpractice claim.  Superior Court Judge Jack A. Panella, writing the court’s opinion, noted that plaintiff’s expert, Dr. Michael Drew, gave three conflicting definitions of the standard of care applicable to Dr. Rosato.  Dr. Drew’s three analyses of the standard of care, according to Judge Panella, were that Dr. Rosato should have offered to pursue the saline method; that in failing to pursue the saline method, Dr. Rosato deviated from the standard of care; and despite having received Mrs. Pomroy’s informed consent, Dr. Rosato should have still pushed the saline procedure.  Judge Panella noted that Dr. Drew’s definitions of the standard of care, if accepted, would leave a treating physician in a no-win situation, stating:

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 preference 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.

The Superior Court further found that there was no evidence of causation to support the jury’s verdict, noting that plaintiff was required to prove “but for” Dr. Rosato’s failure to insist upon the saline colonoscopy, Mrs. Pomroy would have rejected the surgical option and elected the colonoscopic method.  A review of the record clearly established that there was no evidence offered to prove that Mrs. Pomroy would have changed her mind and pursued the saline colonoscopy had Dr. Rosato refused to perform the surgical procedure.  As such, the jury was left to speculate as to whether Mrs. Pomroy would have permitted any physician to pursue the colonoscopy option if Dr. Rosato had refused to perform surgery.  As a result, the Superior Court concluded that the record did not support the jury’s verdict on medical causation.

Finding that plaintiff had failed to establish a valid standard of care and had failed to prove causation, the Superior Court entered Judgment N.O.V. in favor of the Estate of Dr. Rosato and against the plaintiff.

Pomroy v. Hospital of the University of Pennsylvania, 2043 EDA 2013 (Pa. Super. Ct. 2014)

Charles A. Fitzpatrick, III, has extensive experience defending medical malpractice, nursing home liability, pharmaceutical and catastrophic injury cases.  He has tried over 100 cases to verdict. Charles is a member of the bar of Pennsylvania and is admitted to practice in the United States District Court for the Eastern District of Pennsylvania, the Third Circuit Court of Appeals and the United States Supreme Court.  He is a graduate of St. Joseph’s University and the Law School of the University of Pennsylvania. He served in the United States Navy, achieving the rank of Lieutenant. Charles has lectured extensively to attorneys and physicians on the law of medical malpractice. He has been rated AV by Martindale-Hubbell. He was chosen as a Pennsylvania Super Lawyer for the 11th consecutive year.

Charles can be reached directly at: (215) 575-4234  • cfitzpatrick@rawle.com

Patrice O’Brien has practiced as a civil trial lawyer for over 20 years in the areas of medical malpractice, products liability and environmental, toxic and mass torts in the Mid-Atlantic region. She received her undergraduate degree from Delaware Valley College, magna cum laude, in 1983, and law degree from Columbus School of Law at Catholic University in 1986. Patrice is admitted to practice in Pennsylvania and New Jersey, as well as the U.S. District Court for the Eastern District of Pennsylvania.

Patrice can be reached directly at:  (215) 575-4222  • pobrien@rawle.com

NEIGHBORHOOD CLUB OF BALA CYNWYD

David Ira Rosenbaum, a partner in the Philadelphia office of Rawle & Henderson LLP, has been elected to the Board of Directors of the Neighborhood Club of Bala Cynwyd. The Board is composed of community business leaders and residents who deal with development and land use issues and work to strengthen the social, cultural and economic aspects of the neighborhood.

David is the Chairperson of Rawle & Henderson’s Commercial Litigation and Commercial Transactions Sections and is a member of the prestigious Product Liability Advisory Counsel.  As a litigator, he regularly represents businesses in a wide variety of commercial litigation and product liability matters.   He also represents clients in a wide variety of transactional matters, including complex, multi-million dollar asset purchase agreements, employment contracts, real property leases and purchase agreements, joint ventures and simple vendor contracts.  David also manages nationwide product recalls and assists in formulating product warnings and instructions and taking other steps to minimize the risk of product related injuries and lawsuits.

David has also served as an Adjunct Professor at Temple University’s School of Law and as a Judge Pro Tem in the Court of Common Pleas of Philadelphia County. Mr. Rosenbaum is a cum laude graduate of Temple University School of Law and obtained an A.B. Degree in Political Economy from Vassar College. He is admitted to practice law in Pennsylvania and New Jersey as well as in the U.S. District Courts for the Eastern and Middle Districts of Pennsylvania and the District of New Jersey. He also has been admitted to perform appellate work in the Third Circuit Court of Appeals and U.S. Supreme Court.

David can be reached directly at: (215) 575-4378  • drosenbaum@rawle.com

  RRV19N2.pdf