Superior Court Distinguishes Claims of Professional Negligence from Informed Consent

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In McAleer v. Geisinger Medical Clinic, 2025 PA Super 25 (January 28, 2025), the Pennsylvania Superior Court reversed a trial court’s decision, which granted summary judgment in the defendant’s favor, finding the plaintiff had properly pleaded a professional medical negligence claim, and that the claim was supported by a qualified expert opinion.

McAleer’s primary care physician twice unsuccessfully attempted the removal of two (2) large polyps in the ascending colon during colonoscopy. The pathology of the specimen removed demonstrated a tubular adenoma. The primary care physician recommended McAleer see a colorectal surgeon about either a possible partial colectomy or a repeat colonoscopy under full and complete anesthesia. McAleer met with Dr. Christopher Buzas, a colorectal surgeon at Geisinger Medical Center, for evaluation. Dr. Buzas noted, “not amendable to endoscopic resection.” Dr. Buzas also noted he discussed laparoscopic, possible open right hemicolectomy, possible ostomy,” and the risks of such. Dr. Buzas did not discuss another colonoscopy as an alternative to surgery.

McAleer underwent a laparoscopic right hemicolectomy under general endotracheal anesthesia and two (2) days later was discharged to home.  Six days later, McAleer presented to the Emergency Department at Geisinger Medical Center with abdominal pain, nausea, and vomiting. McAleer developed a blood clot, ischemia in the right colon, and necrosis of a portion of the right bowel, which required several subsequent surgeries, including bowel resections, an ileostomy, and an eventual reversal of the ileostomy.

McAleer sued Buzas, alleging that Buzas negligently recommended and performed a procedure that was contraindicated under the circumstances. McAleer did not allege or include a cause of action for battery, i.e., lack of informed consent.  In support of his claim, McAleer submitted two (2) expert reports. The first was completed by Ralph Silverman, M.D., a colorectal surgeon, who opined the standard of care in this case required Buzas to either (a) repeat the colonoscopy under general anesthetic or (b) refer McAleer for endoscopic mucosal resection. The second report was completed by Dr. Raijman, a specialist in internal medicine and gastroenterology, who concluded that Buzas failed to fully assess McAleer prior to surgical intervention. Dr. Raijman also concluded that by failing to offer McAleer an endoscopic resection, Buzas violated the standard of care. Both experts stated McAleer should never have been sent to surgery.

The defendants filed a motion for summary judgment asserting plaintiff’s experts’ opinions were limited to a claim for lack of informed consent, which the plaintiff did not plead, and pursuant to Pomroy v. Hospital of the University of Pennsylvania, 105 A.3d 740 (Pa. Super. 2014), plaintiff’s claim for professional negligence should be dismissed.

“Lack of informed consent is the legal equivalent to no consent [.]” Thus, a claim that a physician failed to obtain the patient’s informed consent sounds like battery, not negligence. There is no cause of action in Pennsylvania for negligent failure to gain informed consent.

Pomroy, 105 A.3d at 746. The trial court concluded the performance of the wrong procedure presented an issue of informed consent, not of professional negligence. As such, the plaintiff’s claims constituted battery involving lack of informed consent, not negligence, and, therefore, summary judgment was proper. The trial court also concluded that Dr. Raijman was not qualified to establish that the care and treatment provided fell short of the required standard of care.

On appeal, the Pennsylvania Superior Court distinguished this case from the facts in Pomroy. In Pomroy, the surgeon offered the patient two (2) options for polyp removal, either colonoscopy or surgery and discussed the risks of each. The patient insisted on surgery, which resulted in several complications and her death. The patient’s estate filed a professional negligence claim against the surgeon, claiming the surgeon should not have offered surgery as an option and should have insisted on the colonoscopy. There was no claim that the doctor failed to secure informed consent. A jury returned a verdict in favor of the woman’s estate. On appeal, the Superior Court reversed the decision of the trial court, holding there was no evidence of causation to support the jury’s medical malpractice verdict and that the estate failed to establish a valid standard of care required of the doctor. Specifically, the estate failed to prove “but for” the doctor’s failure to insist on the colonoscopy method, the woman would have rejected the surgical option and would have elected the colonoscopy.  The Court also found no valid standard of care had been established to support a negligence claim.

In this case, however, the Court found that there was no evidence that McAleer would have refused a colonoscopy if it had been offered. Moreover, McAleer’s experts opined Dr. Buzas breached the standard of care in failing to properly assess McAleer and that if Dr. Buzas had properly assessed McAleer, a colonoscopy under general anesthesia or an endoscopic procedure should have been performed, and consequently, McAleer would not have suffered the complications he did. As such, the Court concluded McAleer presented evidence of both causation and standard of care to support his professional negligence claim.

Finally, the Superior Court found the trial court erred in finding that Dr. Raijman was not qualified to offer a standard of care opinion because the court failed to determine whether the subspecialties of gastrointestinal medicine and colorectal surgery have “a substantially similar standard of care for the specific care at issue,” in accordance with 40 P.S. § 1303.512(c).  Further, the trial court made no determination regarding Section 512(e), which allows a court to waive the same specialty and board certification requirements for an expert testifying as to a standard of care if the court determines that the expert possesses sufficient training, experience, and knowledge to provide the testimony as a result of active involvement in … medicine in a … related field of medicine within the previous five-year time period.” George v. Ellis, 911 A.2d 121, 131 (Pa. Super. 2006) (citing 40 P.S. § 1303.512(e)).

The opinion in McAleer v. Geisinger Medical Clinic, 2025 PA Super 25 (January 28, 2025) can be accessed here.