OPINION BY 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.
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.
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:
Id., at 26.
As a result, Dr. Fanelli referred Mrs. Pomroy to Dr. Rosato for surgical removal of the polyp.
The Pomroys met with Dr. Rosato on October 14, 2008. Mr. Pomroy's uncontradicted testimony was that Dr. Rosato went over the possible risks of having the polyp removed surgically:
Id., at 31. Mrs. Pomroy insisted upon the surgical option while repeatedly rejecting the colonoscopic option. The uncontradicted testimony of Mr. Pomroy was that his wife feared having the polyp removed during a colonoscopy, even the saline colonoscopy method:
Id., at 32. Consequently, Dr. Rosato performed the operation shortly thereafter. Following the surgery, Mrs. Pomroy suffered a series of complications that resulted in her unfortunate death. George Pomroy filed suit against Appellants, alleging medical malpractice against Dr. Rosato.
On appeal, Appellants argue that the trial court erred in not granting their motion for judgment notwithstanding the verdict.
Griffin v. Univ. of Pittsburgh Med. Center-Braddock Hosp., 950 A.2d 996, 999 (Pa.Super.2008) (citation omitted).
A claim of medical malpractice can be defined "as the unwarranted departure from generally accepted standards of medical practice resulting in injury to a patient, including all liability-producing
At the outset, we conclude that there is no evidence of causation to support the jury's verdict. In a negligence action, the plaintiff's burden of causation has two components (1) cause-in-fact and (2) legal or proximate cause. See First v. Zem Zem Temple, 454 Pa.Super. 548, 686 A.2d 18, 21 n. 2 (1996). In a medical malpractice action, expert testimony is required to establish causation. See Toogood, 824 A.2d at 1145. To establish cause-in-fact causation, a plaintiff must prove, through expert testimony, that "but for" the defendant's alleged negligent conduct, the harm suffered by the plaintiff would not have occurred. See Whitner v. Von Hintz, 437 Pa. 448, 263 A.2d 889, 894 (1970). A jury's verdict must be based upon more than mere speculation on the issue of medical causation. See Grossman v. Barke, 868 A.2d 561, 567 (Pa.Super.2005).
As stated above, there was no cause of action filed against Dr. Rosato for failing to secure informed consent from Mrs. Pomroy, nor is there any cause of action that Dr. Rosato performed the surgery in a negligent manner. In his brief to this court, Mr. Pomroy phrases the issue of Dr. Rosato's breach of the standard of care as follows: that Dr. Rosato deviated from an accepted standard of care by not insisting that Mrs. Pomroy undergo the saline colonoscopy, and that when she refused, he should have rejected her request to have the polyp removed surgically.
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. 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.
Testimony at trial indicated that Mrs. Pomroy feared colon perforation, a risk that exists as a consequence of the saline endoscopy treatment. See N.T., Trial, 2/21/12, at 30-31. This risk was acknowledged by all experts at the time of trial. She also knew of the risks associated with the surgical removal of the polyp. There is no cause of action or allegation that she was not properly advised of the risks of both procedures and that she did not give informed consent. 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. See id., at 32. Furthermore, she preferred the surgical method in order to avoid having to undergo emergency surgery should she have elected to choose the colonoscopic method. See id. Appellees correctly summarize the conclusion of Mrs. Pomroy's meeting with Dr. Rosato:
Appellees' Brief, at 28 (citations omitted).
There was no evidence whatsoever that Mrs. Pomroy would have ever chosen the saline endoscopy method over the surgical method. The evidence from the Appellees' case-in-chief demonstrated that she was resolute in her fear of a perforation and her acceptance of Dr. Fanelli's advice. Thus, the jury was left to speculate as to whether Mrs. Pomroy would have allowed Dr. Rosato, or any another doctor, to pursue the saline endoscopy option, if Dr. Rosato had refused to perform the surgery. As a result, we conclude that the record cannot support the jury's verdict on medical causation.
We conclude that the record is deficient in another important aspect. Our review leads to the conclusion that Appellees failed to establish a valid standard of care for a medical malpractice claim. "A breach of a legal duty is a condition precedent to a finding of negligence...." Shaw v. Kirschbaum, 439 Pa.Super. 24, 653 A.2d 12, 15 (1994). The legal duty imposed under the doctrine of informed consent must be carefully distinguished from that imposed under the doctrine of medical malpractice. See Montgomery v. Bazaz-Sehgal, 568 Pa. 574, 798 A.2d 742, 748-749 (2002). The doctrine of informed consent requires physicians to provide patients with "material information necessary to determine whether to proceed with the surgical or operative procedure to remain in the present condition." Sinclair by Sinclair v. Block, 534 Pa. 563, 633 A.2d 1137, 1140 (1993). The physician must give the patient:
Montgomery, 798 A.2d at 748 (citations and internal quotation marks omitted). "Lack of informed consent is the legal equivalent to no consent[.]" Gouse v. Cassel, 532 Pa. 197, 615 A.2d 331, 334 (1992). Thus, a claim that a physician failed to obtain the patient's informed consent sounds in battery, not negligence. See Montgomery, 798 A.2d at 748-749. There is no cause of action in Pennsylvania for negligent failure to gain informed consent. See Kelly v. Methodist Hospital, 444 Pa.Super. 427, 664 A.2d 148, 150 (1995).
The crux of the issue before us is the standard of care required of Dr. Rosato as established at trial. More specifically, what was Dr. Rosato required to do with respect to the alternative treatment method, the saline endoscopy. During trial, Appellees' expert, Michael Drew, M.D., testified to the applicable standard of care:
Id., at 178-179. This is yet a third standard of care put forth by Dr. Drew, that Dr. Rosato, despite having gained Mrs. Pomroy's informed consent, should have rejected her choice for the surgery.
Initially, we highlight the incongruous phrasing between Dr. Drew's statement of the standard of care and his descriptions of Dr. Rosato's alleged breach of the standard of care. In stating the standard of care, Dr. Drew opined that Dr. Rosato was required to offer saline endoscopy as a treatment alternative. As noted above, however, this standard of care is properly addressed in a claim for battery due to lack of informed consent, which was not pled in this case. What is more, this is the only explicitly stated standard of care offered by Dr. Drew. All other possible standards of care require drawing inferences from Dr. Drew's testimony on the manner in which he believed Dr. Rosato breached the standard of care.
Perhaps Dr. Drew became aware of the dangerous legal waters his standard of care testimony was sailing into, as the implicit standard of care at issue morphed each time he opined on how Dr. Rosato breached it. After Dr. Drew had explained that the standard of care required Dr. Rosato to "offer" the saline option, when first questioned about how Dr. Rosato breached the standard of care, Dr. Drew opined that Dr. Rosato had failed to "pursue" the saline option. In essence, this standard of care required Dr. Rosato to perform the saline endoscopy over the surgical removal.
Finally, upon being questioned about whether Mrs. Pomroy had the option of choosing any of the treatment methods, Dr. Drew offered yet another iteration of the alleged breach: Dr. Rosato breached the standard of care by not refusing to perform the surgical removal. This statement is equivalent to a statement that Dr. Rosato was required to reject Mrs. Pomroy's request to have surgery and only perform the saline endoscopy option. The only significant addition provided by this version of the standard of care is that if Mrs. Pomroy refused the saline endoscopy option despite all advice, Dr. Rosato was required to simply refuse treating her at all.
We conclude, however, that these versions of the standard of care are untenable. Dr. Drew testified that polyps such as Mrs. Pomroy's should be removed, because there is no guarantee that even a currently benign polyp will not metastasize in the future. See N.T., Trial, 2/20/13, at
Pomroy contends that there was a triable issue over whether Dr. Rosato properly discussed saline endoscopy with Mrs. Pomroy and advised her appropriately. However, this argument fails for the same reason. If the jury found that Dr. Rosato did not properly advise Mrs. Pomroy on the issue of saline endoscopy, such a finding would be relevant only to a battery claim, not a professional negligence claim. As we have said numerous times, there was no cause of action for lack of informed consent in this case.
As we conclude that the record cannot support the verdict on either liability or causation, Appellants' claims on appeal merit relief. We therefore reverse the trial court. The remaining issues are moot.
Judgment reversed. Jurisdiction relinquished.