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Pomroy v. Hospital of the University of Pennsylvania

Superior Court of Pennsylvania

November 19, 2014

GEORGE POMROY, INDIVIDUALLY AND AS EXECUTOR OF THE ESTATE OF MARIANN POMROY DECEASED, Appellees
v.
HOSPITAL OF THE UNIVERSITY OF PENNSYLVANIA AND ANTHONY G. ROSATO, EXECUTOR OF THE ESTATE OF ERNEST F. ROSATO, M.D., DECEASED, Appellants

Argued: June 24, 2014.

Page 741

Appeal from the Judgment Entered June 12, 2013 of the Court of Common Pleas, Philadelphia County, Civil Division, No(s): November Term, 2009, No. 4756. Before COLINS, J.

Maureen M. McBride, West Chester, for Hospital of the University of PA, appellant.

Laura A. Feldman, Philadelphia, for appellees.

BEFORE: GANTMAN, P.J., PANELLA, and STABILE, JJ. OPINION BY PANELLA, J. Joseph D. Seletyn, Esq., Prothonotary.

OPINION

Page 742

PANELLA, J.

Appellants, the Estate of Ernest F. Rosato, M.D., and Hospital of the University of Pennsylvania, appeal from the judgment entered after the denial of their post-trial motions for judgment notwithstanding the verdict (" JNOV" ). We conclude that the record is legally insufficient to support the jury's verdict. As a result, the trial court erred in denying Appellants' motions for JNOV and we must reverse.

This appeal arises from a medical malpractice claim against Dr. Rosato. All parties agree that there was no claim that Dr. Rosato failed to secure informed consent from the decedent, Mariann Pomroy, nor is there any claim that Dr. Rosato committed professional negligence while operating on Mrs. Pomroy. In fact, the greatest difficulty in reviewing this appeal arises from the fact that the standard of care asserted by Appellees at trial varied each time the issue was broached. As discussed below, there were three distinct standards provided to the jury, implicitly or explicitly, by Appellees' expert.

Mrs. Pomroy had a long history of gastrointestinal issues and multiple abdominal surgeries. When her long-time gastroenterologist, Andrew Fanelli, M.D., informed her that she was suffering from a large, possibly cancerous polyp in her colon, he discussed several treatment options with Mrs. Pomroy.[1] Both Mrs. Pomroy and Dr. Fanelli were concerned about the size of the polyp and the risk that removing the polyp during a colonoscopy[2] could leave her colon perforated.[3] A saline colonoscopy

Page 743

or saline endoscopy is a colonoscopy 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. The saline colonoscopy reduces the risk of perforation.

Because of the size of Mrs. Pomroy's polyp and his concerns over a possible perforation of her colon if the polyp were removed colonoscopically, Dr. Fanelli recommended surgery.[4] The trial testimony of George Pomroy, the decedent's husband, in summarizing Dr. Fanelli's advice, was:

We went back and he told her it wasn't cancerous and that it was rather large and he's going to recommend us to a surgeon down at the University of Pennsylvania Hospital. And said there's another way to do it, it's with the saline solution, something like that. But he thought in his opinion that it was too large and that there was a risk of perforation because of the size of the polyp.

N.T., Trial, 2/21/13, at 25.

According to Mr. Pomroy, his wife was against having the polyp removed during a colonoscopy: " [M]y wife . . . said she don't want to take a chance of perforating her bowel. So she said to him, [l]et's talk to the doctor." Id. Mr. Pomroy testified that although Dr. Fanelli did not put a specific risk factor on the saline solution procedure, he definitely recommended against it, and his wife was unwavering in accepting his advice:

No, he didn't put a risk factor on it. He just said he thought it was too large and that there was a risk of perforation. He thought the surgery was probably a better idea. He's been her gastrointestinal doctor for 20 years. He's my doctor as well as he's her doctor. He's recommended numerous different doctors for us to do things. The two other surgeries my wife had, he recommended the doctors ...

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