Lamb McErlane PC attorneys recently won a significant Pennsylvania Superior Court appeal in a medical malpractice case alleging claims of negligence against the Hospital of the University of Pennsylvania and a Hospital of the University of Pennsylvania surgeon. In Pomroy v. Hospital of the University of Pennsylvania, the Superior Court vacated entirely a $20 million award in favor of the Estate of Mariann Pomroy and entered judgment instead in the surgeon and the Hospital’s favor. Reversal of a judgment of this magnitude is unprecedented in recent Pennsylvania history in a medical malpractice case.

Lamb McErlane successfully argued that the Plaintiffs failed to prove that the defendant surgeon was negligent and that his negligence caused Plaintiff’s harm. The Superior Court agreed that Plaintiff failed to prove these fundamental elements to her medical malpractice action.

Lamb McErlane partners Maureen McBride and Jim Sargent represented the successful surgeon and hospital on appeal.

POMROY vs. HOSPITAL OF THE UNIVERSITY OF PENNSYLVANIA
Maureen M. McBride and James C. Sargent, Jr.

Lamb McErlane PC has won a significant victory representing the University of Pennsylvania, in Pomroy v. Hospital of the University of Pennsylvania, 2043 EDA 2013.  Pomroy filed suit against a University of Pennsylvania surgeon and the Hospital on October 22, 2008, after Pomroy’s wife died of complications from non-negligent colon surgery.  Pomroy did not claim that the surgery was performed negligently; rather, he claimed that the surgeon had not done enough to persuade Mrs. Pomroy to opt for an alternative procedure by another specialist.

After a hard-fought trial, the jury returned its verdict and awarded $10.5 million to the husband (in wrongful-death damages) and $9 million to Mrs. Pomroy’s estate (in survival damages). On November 19, 2014, a three judge panel of the Superior Court, in a published decision, completely reversed the $19.5 million verdict, and entered judgment in favor of the Hospital and the surgeon. As Lamb McErlane partners Maureen McBride and Jim Sargent had argued in their briefs, the Court found that Pomroy had neither proved breach of the standard of care, nor that the Hospital or surgeon had caused Mrs. Pomroy’s injury and death.

At trial, Pomroy’s expert opined that the well-respected HUP surgeon had a duty to “offer” removal of a large polyp from Mrs. Pomroy’s colon through a saline colonoscopy option (which would have been performed by another specialist). Mr. Pomroy’s own evidence, however, established that the surgeon in fact had “offered” the saline option. Mr. Pomroy’s expert later opined that the surgeon should have “pursued” the option. Yet, there was no evidence to suggest that, had the surgeon in fact “pursued” the saline colonoscopy Mrs. Pomroy would have agreed to undergo the saline procedure, the saline procedure would have been performed successfully without perforation, or that she would be alive and well today. The record evidence established that Mrs. Pomroy’s polyp required removal but that Mrs. Pomroy was, at all times, adamantly opposed to having it removed by saline colonoscopy. Not a single witness testified to a different conclusion.

In the Superior Court’s Opinion, Judge Jack A. Panella noted that Pomroy’s expert had provided three conflicting standard of care opinions — including that the surgeon should have “offered” and “pursued” the saline method, and then, when Mrs. Pomroy steadfastly refused the colonoscopic procedure, should have refused to treat her altogether.
The Panel further concluded that Pomroy had not established that the surgeon’s failure to persuade Mrs. Pomroy to elect a saline endoscopy procedure, caused her harm. “Appellees had to prove ‘but for’ [the surgeon’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.” (Slip Op., at 8).

The Panel took pains to note that Mrs. Pomroy had been properly informed of the potential risks of both procedures and made her own decision: “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…” (Id., at 8-9).  The Court concluded that Mrs. Pomroy “…preferred the surgical method in order to avoid having to undergo emergency surgery should she have elected to choose the colonoscopic method.” (Id., at 9).

The Panel also rejected Plaintiff’s theory the physician was required to: “…refuse to treat the patient according to the patient’s wishes, leaving that patient at an increased risk of developing cancer.” Indeed, the Panel stated: “We decline to create such a trap for medical professionals, and we find no precedent in Pennsylvania law to support this standard.” Id. at 13.

Reversal of a verdict, particularly a verdict close to $20 million, is unprecedented in recent history in Pennsylvania.  The decision is a significant victory for the client and for Lamb McErlane’s Appellate Department.