McAleer v. Geisinger Med. Ctr., 332 A.3d 38 (January 28, 2025) Panella, J.
332 A.3d 38 *; 2025 Pa. Super. LEXIS 45 **; 2025 PA Super 25; 2025 LX 46739
Subsequent History:
Rehearing denied by McAleer v. Geisinger Med., 2025 Pa. Super. LEXIS 157 (Apr. 1, 2025)
Appeal denied by McAleer v. Geisinger Med. Ctr., 2025 Pa. LEXIS 1469 (Sept. 23, 2025)
Judges: BEFORE: PANELLA, P.J.E., LANE, J., and STEVENS, P.J.E.
OPINION BY PANELLA, P.J.E.
Michael McAleer (McAleer) and his wife, Elaine McAleer (collectively “Appellants”),1 appeal from the order granting summary judgment in favor of Geisinger Medical Center, Geisinger Clinic, and Christopher Buzas, O.D. (collectively “Appellees”). In an accompanying opinion, the trial court also determined that Appellants’ expert, Dr. Isaac Raijman, was not qualified to opine on the standard of care applicable to Dr. Buzas. Appellants challenge the opinion and order. After careful review, we reverse the order and remand to the trial court for further proceedings consistent with this opinion.
On May 9, 2019, McAleer met with Dr. Buzas at Geisinger Medical Center for evaluation. At the initial evaluation, Dr. Buzas noted, “not amendable to endoscopic resection.” Dr. Buzas indicated he “[d]iscussed laparoscopic, possible open right hemicolectomy, possible ostomy,” and the risks of such. At his deposition, McAleer testified Dr. Buzas never mentioned the idea of another colonoscopy. McAleer said something had to be done to remove the polyp, and it was up to Dr. Buzas as his
surgeon to make the decision how to do it, not him. Based on his assessment, Dr. Buzas scheduled McAleer for colorectal surgery.
On June 26, 2023, following resolution of preliminary objections and discovery, Appellees filed a motion for summary judgment pursuant to Pomroy v. Hospital of the University of Pennsylvania, 2014 PA Super 257, 105 A.3d 740 (Pa. Super. 2014). Specifically, Appellees asserted that summary judgment should be granted, and the claim for medical negligence dismissed with prejudice, because, under Pomroy, “the only claims in this case supported by [Appellants’] medical experts relate to informed consent for surgery, and [Appellants] have not pled a lack of informed consent against [Appellees].”
On November 1, 2023, the trial court entered an order granting the motion for summary judgment. In an accompanying opinion, the court based its decision on Pomroy, finding the issues and facts raised herein “remarkably similar.” This timely appeal followed.
The crux of Appellants’ claims is that the trial court erred in finding the decision in Pomroy dispositive under the circumstances here. The Pennsylvania Association for Justice, in an amicus brief, agrees that Pomroy is distinguishable. We join in that assessment and find that Pomroy does not support the trial court’s conclusion.
In Pomroy, the estate of a deceased woman filed a medical malpractice suit against a doctor after the woman died as a result of complications from a surgical polyp removal. Prior to the surgery, the woman met with the doctor to discuss her options. The doctor advised of two options: (1) a saline colonoscopy, or (2) surgical removal. The doctor explained the risks of both and recommended colonoscopy. The woman, however, insisted on the surgical option, and repeatedly rejected the colonoscopy option, due in part to advice she had received from a referring physician. Consequently, the doctor performed the operation. Following the surgery, the woman suffered a series of complications that resulted in her unfortunate death.
The estate filed a medical malpractice suit against the doctor, claiming the doctor should have insisted on the colonoscopy. The estate’s expert testified to the applicable standard of care, asserting the colonoscopy option “should have been what he offered” to the woman. Pomroy, 105 A.3d at 746. The expert further testified that the doctor should have refused to perform the surgery, despite the woman stating she wanted the surgical option. There was no claim the doctor failed to secure informed consent from the woman, nor was there any claim the doctor committed professional negligence while operating on the woman.
A jury returned a verdict in favor of the woman’s estate. The doctor filed post-trial motions for judgment notwithstanding the verdict, which were denied. The doctor then appealed.
On appeal, this 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.
Here, the trial court contends that Pomroy “held that a failure to advise or offer options or alternatives is inherent in a battery/informed consent case.” The trial court uses this assertion to conclude that “the performance of the ‘wrong procedure’ presents an issue
of informed consent, not of professional negligence of failure to adhere to the standard of care.” We find this correlation to be incongruous as the action of advising a patient prior to surgery is simply not the same as the actual performance of a procedure.
Further, we note that the holding in Pomroy did not concern informed consent. Rather, the holding in Pomroy was that the estate’s negligence claim failed because the estate failed to establish two necessary factors for a negligence claim: (1) causation, and (2) a valid standard of care. While informed consent was discussed in the analysis of whether the estate had established a valid standard of care required of the doctor, the holding itself did not concern informed consent.
Here, in contrast, there was no evidence that McAleer would have refused a colonoscopy under general anesthesia or an endoscopic procedure. Instead, Dr. Buzas did not even give McAleer any options before performing the surgery that caused his damage. Further, as set forth above, Appellants’ expert reports stated unequivocally that 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. Therefore, Appellants presented evidence of both causation and standard of care to support their medical malpractice claim.
Further, we cannot agree with the trial court’s assessment of two words used in both cases— “offer” and “option”—to prove a correlation between these two cases. We have no question that the trial court made an earnest attempt to rule on the motion for summary judgment. However, the trial court misapplied the ways in which those words are used in each case. In Pomroy, the expert stated that a colonoscopy is what the doctor should have offered, and that the doctor was negligent in not pursuing the colonoscopy option. Importantly though, that option actually was given to the patient; she just chose not to take it. The facts here are not the same: the woman in Pomroy was offered an option within the standard of care and chose not to take it; McAleer was not given any option within the standard of care and therefore did not have the opportunity to even choose or reject an option within the standard of care.
As we find Pomroy is not dispositive to the facts of this case, we are constrained to find the trial court’s decision to grant summary judgment based on Pomroy was in error. Accordingly, we reverse the trial court’s order granting Appellees’ motion for summary judgment.
The trial court concluded Dr. Raijman “is not qualified to opine on the standard of care applicable to Dr. Buzas.” The court based this determination solely on the fact that Dr. Raijman is board certified in internal medicine and gastroenterology, not colorectal surgery, the specialty of Dr. Buzas.
While it is undisputed that Dr. Raijman works in a different subspecialty, the court made no determination of whether the two subspecialities have “a substantially similar standard of care for the specific care at issue,” another avenue allowed by Section 512(c).
Further, the trial court made no determination with regard to Section 512(e). “[Section 512(e)] 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, 2006 PA Super 306, 911 A.2d 121, 131 (Pa. Super. 2006) (citing 40 P.S. § 1303.512(e)).
Accordingly, we agree it was improper to hold that Dr. Raijman was not qualified to opine as an expert in this case based solely on his certification as a gastroenterologist and his CV. See Wexler v. Hecht, 2004 PA Super 95, 847 A.2d 95, 105 n.7 (Pa. Super. 2002) (“We stress that we do not condone the practice of relying solely on an expert’s curriculum vitae when determining whether he or she is competent to testify. Rather, the better practice is for trial courts to take evidence directly from the expert before ruling on the issue.”), aff’d 593 Pa. 118, 928 A. 2d 973 (Pa. 2007); see also Smith v. Paoli Memorial Hospital, 2005 PA Super 352, 885 A.2d 1012, 1018 n. 2 (Pa. Super. 2005) (citing Wexler with approval). As we are reversing the order granting summary judgment, we direct the trial court to revisit its decision regarding whether Dr. Raijman is qualified to testify as an expert in this case in conformity with this Court’s discussion of this matter.
For all the reasons discussed in our above analysis, we reverse the November 1, 2023, order and remand to the trial court for further proceedings consistent with this opinion.
