Shinal, M. v. Toms, S.

J-S41032-15
2015 PA Super 178MEGAN I. SHINAL AND ROBERT J. IN THE SUPERIOR COURT OF
SHINAL, HER HUSBAND, PENNSYLVANIA
Appellants
v.
STEVEN A. TOMS, M.D.,
Appellee No. 1714 MDA 2014
Appeal from the Judgment Entered September 29, 2014
in the Court of Common Pleas of Montour County
Civil Division at No.: 588-CV-2009
BEFORE: ALLEN, J., LAZARUS, J., and PLATT, J.*
OPINION BY PLATT, J.: FILED AUGUST 25, 2015
In this medical malpractice case, Appellants, Megan I. Shinal,1 and
Robert J. Shinal, her husband, appeal from the judgment entered in favor of
Appellee, Steven A. Toms, M.D., following a jury’s defense verdict of no
liability on the issue of informed consent. Appellants challenge the denial of
their motions to strike certain prospective jurors for cause. They also object
to a jury instruction on information provided by Appellee’s support staff to
determine informed consent, and the denial of their motion in limine to
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*
Retired Senior Judge assigned to the Superior Court.
1
We note that Mrs. Shinal’s middle initial is alternatively given as “L” and “I”
by Appellants in the record.
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preclude reference to the consent form Mrs. Shinal signed. Appellants assert
that they are entitled to a new trial. We affirm.
We derive the facts of the case from the trial court opinion and our
independent review of the record. This suit arises out of a January 2008
brain surgery to resect (cut out or remove) a craniopharyngioma from Mrs.
Shinal which recurred after a prior removal by another surgeon in 2004. A
craniopharyngioma is a generally benign (non-cancerous) brain tumor that
develops at the base of the brain near the pituitary gland. 2 The issue at
trial, and the overarching issue on appeal, is whether Dr. Toms obtained
Mrs. Shinal’s informed consent for the surgery to remove the recurring brain
tumor. In the original complaint, Appellants named Geisinger Medical
Center and Geisinger Clinic as additional defendants to Appellee, Dr. Toms.
Appellants had an initial consultation with Appellee on November 26,
2007. It took about twenty minutes. Dr. Toms testified that he
remembered having a conversation with Mrs. Shinal at that first meeting,
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2
The pituitary gland is a pea-sized organ that lies at the base of the brain
above the back of the nose. See NCI Dictionary of Cancer Terms, National
Institutes of Health, USA.gov. Craniopharyngioma can increase pressure on
the brain, usually from hydrocephalus (buildup of fluid inside the skull that
leads to brain swelling); disrupting hormone production by the pituitary
gland; and decreasing vision due to pressure or damage to the optic nerve.
Increased pressure on the brain causes headache, nausea, vomiting, and
difficulty with balance. See MedlinePlus, (http://medlineplus.gov/), U.S.
National Library of Medicine, National Institutes of Health, U.S. Department
of Health and Human Services.
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about her goals and expectations in life, as well as the risks of surgery,
including possible damage to the nearby carotid arteries and the optic nerve.
(See N.T. Trial, 4/17/14, at 94-95).
In particular, he recalled that because Mrs. Shinal said she wanted to
be there for her child, then nine, he took her to mean that “she wanted me
to push forward if I got in a situation where I thought I could do it [remove
all of the tumor] with a reasonable risk.” (Id. at 96).
He explained that a less aggressive approach to tumor removal was
safer in the short term by reducing the risk of damage to structures near the
tumor. But he also testified that a less aggressive approach increased the
risk of reducing survival rates, about 25%, by increasing the possibility of
leaving behind some remnants of the tumor, which could grow back.
Therefore, in his judgment, more aggressive surgery was more beneficial in
the long-term. (See id. at 102-03).
At trial, Mrs. Shinal disputed receiving much of this information. She
essentially denied any recollection that she had been informed of the relative
risks of fatality or other possible complications of her surgery. (See N.T.
Trial, 4/16/14, at 132-35). She did testify that Dr. Toms told her the risks
of this surgery were “coma and death.” (Id. at 155). Mrs. Shinal testified
that, given an option, she would have taken the safer, less aggressive,
rather than a more aggressive surgery. (See id. at 152-53).
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Mrs. Shinal did not dispute that she had two meetings with Dr. Toms,
although she could not remember the date of the second meeting. After the
initial consultation with Dr. Toms, Mrs. Shinal also had one or more follow-
up discussions by telephone with a physician’s assistant of Dr. Toms.
She asked about the date of the surgery, what kind of scar she would
have, and whether radiation would be necessary after surgery. Mrs. Shinal’s
first surgery had been transsphenoidal, which accesses tumors in or near the
pituitary gland by entering through the nasal passage and the sphenoid
sinus (a hollow space in a bone in the nose). She was unsure whether the
surgery would again be transsphenoidal or a craniotomy (through the skull),
and asked about that. (See id. at 139).
On February 12, 2013, the trial court attempted unsuccessfully to
empanel a jury. It could not do so. Too many prospective jurors were
dismissed because they were employed or insured by Geisinger entities. The
court continued the trial.
Three months later, on May 28, 2013, as noted in the trial court
opinion, the court granted partial summary judgment in favor of both
Geisinger defendants, Geisinger Medical Center and Geisinger Clinic, on the
ground that the duty to obtain informed consent was personal to Dr. Toms.
See Valles v. Albert Einstein Med. Ctr., 805 A.2d 1232, 1239 (Pa. 2002)
(“Thus, we hold that as a matter of law, a medical facility lacks the control
over the manner in which the physician performs his duty to obtain informed
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consent so as to render the facility vicariously liable.”). At that point,
Appellee Toms was the only remaining defendant.
On April 15, 2014, the trial court began a second round of jury
selection. In voir dire, the trial court endeavored to implement what it
perceived to be the principles enunciated in Cordes v. Assocs. of Internal
Med., 87 A.3d 829, 833-34 (Pa. Super. 2014) (en banc) (plurality opinion),
appeal denied, 102 A.3d 986 (Pa. 2014).3 (See Opinion and Order,
9/12/14, at 3).
As part of this procedure, Appellants’ counsel were permitted to
inquire whether each prospective juror was an employee of any Geisinger
affiliate, or if a relative was employed by a Geisinger affiliate, and whether
they “perceive[d]” themselves to be employed by the same company as Dr.
Toms. (N.T. Jury Selection, 4/15/14, at 66). If so, they were asked if they
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3
No single opinion in Cordes commanded a majority of the en banc panel.
As discussed in more detail below, Judge Wecht’s opinion in support of
reversal, joined by P.J.E. Bender, held that the clinical (doctor-patient)
relationships between prospective jurors (or their family members) and the
defendant-physician were sufficiently close to warrant a finding of per se
prejudice. Reasoning further that the mere appearance of partiality of a
juror may suffice to undermine confidence in the outcome of the trial, he
also decided that a prospective juror’s employment relationship with an
entity related to the employer of the physician-defendant such that a
plaintiff’s verdict would have an adverse financial impact on his employer
was a “relationship that resembles the close financial or situational
relationships that courts have found create the prospect or appearance of
partiality”. Cordes, supra at 843; see generally, id. at 842-46.
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believed or perceived that a verdict against Dr. Toms would have a negative
financial impact on their employer. (See id. at 66-67). Some, like Linda
Woll, replied that Geisinger was too big to be adversely affected by a single
judgment, but that in any event, such occurrences were probably covered by
malpractice insurance. (See id.).
Most were also asked if they, or a relative, had ever been treated as a
patient at Geisinger, and, if so, whether they received a favorable result.
Finally, all were asked, many in the context of the answers they had
previously given to these questions, whether they could render a fair and
impartial verdict. As noted by the trial court, all said they could. (See Trial
Court Opinion, 9/12/14, at 3).
The four prospective jurors at issue in the first claim of this appeal are
Linda Woll, Denny Ackley, Louise Schiffino and Stephen Nagle.
Ms. Woll was an administrative secretary at the Geisinger sleep labs.
(See N.T. Jury Selection, 4/15/14, at 66). Before voir dire, Ms. Woll had
never heard of Dr. Toms. (See id.). She volunteered that she had “nothing
to do with med surge.” (Id.). She did not believe a verdict against Dr. Toms
would negatively affect her employer. (“Probably not.”). (Id. at 67). She
noted the large size and local dominance of Geisinger, as well as the
existence of malpractice insurance. (See id.).
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Mr. Ackley’s wife worked for thirty-five years as an administrative
assistant in the Geisinger pediatrics department. Mr. Ackley had never
heard of Dr. Toms. (See id. at 70).
Ms. Schiffino was a customer service representative for Geisinger
Health Plan. She had never heard of Dr. Toms. (See id. at 91-92).
Mr. Nagle was a retired physician’s assistant who had previously
worked at Geisinger but in different departments than Appellee Toms
(specifically, plastic surgery and gastro-intestinal); his son worked as a night
security officer at Geisinger. Mr. Nagle knew of Dr. Toms, but had never
actually met him. (See id. at 129). Mr. Nagle doubted that a plaintiffs’
verdict would have a particular negative financial impact on Geisinger, other
than adverse publicity. (See id. at 130-31).
Therefore, none of these four knew Appellee Toms personally, had
ever worked with him, or been treated by him as a patient. The trial court
denied Appellants’ motions to dismiss Woll, Ackley, Schiffino and Nagle for
cause. Appellants exercised their four peremptories and excluded them from
the jury.4 (See id. at 191-92).
Appellants filed a motion in limine to preclude reference at trial to the
surgical consent form that Mrs. Shinal signed, which the trial court denied.
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4
We omit reference and discussion of all venire persons who were seated as
jurors without objection, or who were dismissed for cause after testifying to
an employment, patient or other relationship with Geisinger.
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The court also denied Appellants’ motion for a change of venue. At trial,
Mrs. Shinal conceded that on January 17, 2008, she had signed the consent
form, which bore her signature, but denied that she had been informed of all
the risks, benefits, options, and alternatives to surgery. (See N.T. Trial,
4/16/14, at 149-155).
The trial court summarizes additional pertinent facts as follows:
On January 31, 2008, [Appellant Mrs. Shinal] underwent
an open craniotomy to resect a recurrent craniopharyngioma, a
non-malignant brain tumor. During the operation, [Appellee]
perforated the carotid artery, and [Mrs. Shinal] was left with
impaired vision and ambulation. [Appellee’s] employer,
Geisinger Clinic, and an affiliate hospital, Geisinger Medical
Center, were dismissed as defendants on a pretrial Motion for
Partial Summary Judgment, in that the only theory on which
[Appellants] were proceeding was based upon a lack of informed
consent, and that theory was found to rest upon a duty of
[Appellee]/physician and not of the Geisinger entities or its
agents other than [Appellee].
At voir dire on April 15, 2014, [Appellants] sought a per se
disqualification of all prospective jurors who worked at a
Geisinger affiliate, or who had close family who worked at a
Geisinger affiliate. The [c]ourt conducted an in depth individual
examination of all prospective jurors, covering points including
whether the jurors or close family (1) knew, or had been
patients of, [Appellee]; (2) were employed by a Geisinger entity;
(3) if employment by a Geisinger entity existed, whether the
prospective juror perceived that entity to be the same entity
employing [Appellee]; and (4) whether the prospective juror
perceived that a verdict adverse to [Appellee] would adversely
financially impact the Geisinger entity which employed the
prospective juror or a member of his or her family. . . . The four
jurors as to whom [Appellants] object[ ] (Nagel, Schiffino, Woll
and Ackley) all confirmed that they felt that they would be able
to be fair and impartial, that they did not personally know
[Appellee], and that [Appellee] did not medically treat the
prospective jurors or any of their close family members. All four
jurors at issue were employed by a Geisinger affiliate or had
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close family employed by a Geisinger affiliate. Most importantly,
all four prospective jurors stated that they did not believe that a
verdict against [Appellee] would negatively financially impact the
employer of the prospective jurors or their close family
members.
At trial, [Appellants] objected to [Appellee’s] introduction
of a form ([ ] the "Informed Consent Form") signed by [Mrs.
Shinal] on January 17, 2008 in which the following was stated:
I give my permission to Dr. Toms . . . to perform [a]
resection of recurrent craniopharyngioma. I have
discussed the procedure to be performed with my
physician who has informed me of the risks and
consequences associated with the procedure. Those risks
include but are not limited to pain, scarring, bleeding,
infection, breathing problems, heart attack, stroke, injury
and death.
I have discussed the advantages and disadvantages of
alternative treatments. . . .
This form has been fully explained to me and l
understand its contents. l had the opportunity to ask
questions and l am completely satisfied with the
answers. l have sufficient information to give my
informed consent to the operation or special
procedure.
(Emphasis in original). [Appellants assert] that the facts of [Mrs.
Shinal’s] signature of the Informed Consent Form and its
contents were irrelevant. At trial, [Appellee] testified at length
regarding his habit in explaining his use of the form at issue.
During trial, the fact was brought out that, between [Mrs.
Shinal’s] initial consultation with [Appellee] on November 26,
2007 and the surgery on January 31, 2008, [Mrs. Shinal] spoke
with Physician’s Assistant Shah (“PA Shah”) and was provided
information relating to the cranial incision to be made and the
likelihood of scarring.
(Trial Court Opinion, 9/12/14, at 2-4).
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Appellants also objected to a jury instruction proposed by Appellee
which charged the jury that any qualified assistants of Dr. Toms could
convey information to Appellant Megan Shinal as part of the informed
consent process. The trial court gave the instruction. During deliberations,
the jury inquired about whether physician’s assistants could convey
information for informed consent. The trial court essentially repeated the
previously given instruction. (See id. at 10).
The jury returned a defense verdict of informed consent.5 Appellants
filed a post-verdict motion seeking a new trial.6 The trial court denied
Appellants’ motion following argument on August 29, 2014. This timely
appeal on October 9, 2014, followed the entry of judgment on September
29, 2014.
Appellants raise four questions on appeal:
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5
Specifically, the jury answered “No” to the following question:
[D]o you find that the Defendant Steven A. Toms, M.D. failed to
give the Plaintiff Megan L. Shinal a description of the surgery
which was conducted or of the risks and viable alternatives to
that surgery that a reasonably prudent patient would require to
make an informed decision as to that surgery?
(N.T. Trial, 4/21/14, at 247).
6
Counsel for Appellants also requested judgment notwithstanding the
verdict (JNOV), but abandoned that request at oral argument. (See N.T.
Argument, 8/29/14, at 32). Following appeal, Appellants filed a court-
ordered statement of errors on November 13, 2014. See Pa.R.A.P. 1925(b).
On December 4, 2014, the trial court filed a Rule 1925(a) opinion,
referencing its opinion filed September 12, 2014. See Pa.R.A.P. 1925(a).
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(a) Whether MEGAN L. SHINAL and ROBERT J. SHINAL,
her husband, are entitled to a new trial because the trial court
committed reversible error by denying [Appellants’] Motions to
Strike for Cause Jurors with close familial, situational and/or
financial relationships to [Appellee], Steven A. Toms, M.D.,
Geisinger Medical Center, Geisinger Clinic, Geisinger Health
System or any Geisinger Affiliated Entity during jury selection on
April 15, 2014?
(b) Whether MEGAN L. SHINAL and ROBERT J. SHINAL,
her husband, are entitled to a new trial because the trial court
committed reversible error by charging the jury with the same
erroneous instruction on two separate occasions that
[Appellee’s] “qualified staff,” who were non-physicians, can
obtain the informed consent of the patient, MEGAN L. SHINAL,
for surgery?
(c) Whether MEGAN L. SHINAL and ROBERT J. SHINAL, her
husband, are entitled to a new trial because the trial court
committed reversible error by denying their [m]otion in [l]imine
to [p]reclude [Appellee] from any mention, testimony and/or
reference to the “standard” surgical consent form signed by
MEGAN SHINAL, relative to the January 31, 2008, surgery when
MEGAN SHINAL’S consent to surgery was not at issue in this
matter?
(d) Whether the trial court committed an error of law
and/or abused its discretion in denying [Appellants’] Motion for
Post Trial Relief?
(Appellants’ Brief, at 6)7 (capitalization in original; some capitalization
omitted).
The sole duty of an appellate court upon an appeal from
the trial court’s denial of a motion for judgment n.o.v. or a new
trial is to decide whether there was sufficient competent
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7
We observe that although Appellants’ sixty page brief is twice the length of
a presumptively compliant (thirty page) brief, they have failed to certify
compliance with the 14,000 word limit prescribed in the Pennsylvania Rules
of Appellate Procedure. See Pa.R.A.P. 2135(a)(1).
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evidence to sustain the verdict, granting the verdict winner the
benefit of every favorable inference to be drawn from such
evidence.
Sanderson v. Frank S. Bryan, M.D., Ltd., 594 A.2d 353, 354 (Pa. Super.
1991) (citation omitted).
The Medical Care Availability and Reduction of Error (MCARE) Act
defines informed consent in relevant part as follows:
(a) Duty of physicians.─Except in emergencies, a
physician owes a duty to a patient to obtain the informed
consent of the patient or the patient’s authorized representative
prior to conducting the following procedures:
(1) Performing surgery, including the related
administration of anesthesia.
* * *
(b) Description of procedure.─Consent is informed if
the patient has been given a description of a procedure set forth
in subsection (a) and the risks and alternatives that a reasonably
prudent patient would require to make an informed decision as
to that procedure. The physician shall be entitled to present
evidence of the description of that procedure and those risks and
alternatives that a physician acting in accordance with accepted
medical standards of medical practice would provide.
* * *
(d) Liability.─
(1) A physician is liable for failure to obtain the informed
consent only if the patient proves that receiving such information
would have been a substantial factor in the patient’s decision
whether to undergo a procedure set forth in subsection (a).
(2) A physician may be held liable for failure to seek a
patient’s informed consent if the physician knowingly
misrepresents to the patient his or her professional credentials,
training or experience.
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40 Pa.C.S.A. § 1303.504.
Appellant correctly asserts that the established law of our
Commonwealth considers a claim for a lack of informed consent
to be a technical battery, and that negligence principles do not
apply to this claim. See: Montgomery v. Bazaz–Sehgal, 568
Pa. 574, 585–586, 798 A.2d 742, 749 (2002). . . . Thus, at its
core, this action required a showing that appellees failed to
conform to a specific acceptable professional standard, namely
“[to] provide patients with material information necessary to
determine whether to proceed with the surgical or operative
procedure, or to remain in the present condition.” Valles v.
Albert Einstein Medical Center, 569 Pa. 542, 551, 805 A.2d
1232, 1237 (2002) (internal quotations and citations omitted).
At a minimum, appellant was obliged to demonstrate that
appellees had failed to disclose such information as would impart
to her a true understanding of the nature of the operation to be
performed, the seriousness of it, the organs of the body
involved, the disease or incapacity sought to be cured, and the
possible results.
Pollock v. Feinstein, 917 A.2d 875, 878 (Pa. Super. 2007) (some citations
and internal quotation marks omitted).
Here, Appellants first challenge the denial of their motion to strike
prospective jurors Woll, Ackley, Schiffino and Nagle for cause on the ground
that they had close relationships to Appellee Toms, or a Geisinger affiliate.
(See Appellants’ Brief, at 6)). They argue that because they were forced to
use four peremptory strikes they were “unable to strike other jurors, who
were presumably biased (sic) and impartial.” (Id. at 17). They contend
that the trial court should have presumed prejudice. (See id. at 20-21).
We disagree.
Our standard of review of a court’s decision not to strike a
potential juror for cause is well-settled:
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The test for determining whether a prospective juror
should be disqualified is whether he is willing and able to
eliminate the influence of any scruples and render a verdict
according to the evidence, and this is to be determined on
the basis of answers to questions and demeanor. . . . A
challenge for cause should be granted when the
prospective juror has such a close relationship, familial,
financial, or situational, with the parties, counsel, victims,
or witnesses that the court will presume a likelihood of
prejudice[,] or demonstrates a likelihood of prejudice by
his or her conduct and answers to questions. Our standard
of review of a denial of a challenge for cause differs,
depending upon which of these two situations is presented.
In the first situation, in which a juror has a close
relationship with a participant in the case, the
determination is practically one of law and as such is
subject to ordinary review. In the second situation,
when a juror demonstrates a likelihood of prejudice by
conduct or answers to questions, much depends upon the
answers and demeanor of the potential juror as observed
by the trial judge and therefore reversal is appropriate
only in the case of palpable error. When presented with a
situation in which a juror has a close relationship with
participants in the litigation, we presume prejudice for the
purpose of [en]suring fairness.
McHugh v. P[rocter] & G[amble] Paper Prods. Co., 776
A.2d 266, 270 (Pa. Super. 2001) (footnote, citations, internal
quotation marks, and original modifications omitted).
This Court previously has described this inquiry in general
terms as follows:
[T]here are two types of situations in which challenges for
cause should be granted: (1) when the potential juror has
such a close relationship, be it familial, financial or
situational, with parties, counsel, victims, or witnesses,
that the court will presume the likelihood of prejudice; and
(2) when the potential juror’s likelihood of prejudice is
exhibited by his conduct and answers to questions at voir
dire. In the former situation, the determination is
practically one of law and as such is subject to
ordinary review. In the latter situation, much depends
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upon the answers and demeanor of the potential juror as
observed by the trial judge and therefore reversal is
appropriate only in case of palpable error.
Commonwealth v. Colon, [ ] 299 A.2d 326, 327–28 ([Pa.
Super.] 1972).
Cordes, supra at 833-34 (emphases added).
Preliminarily, here, we note that even though Appellants frame their
first question in the alternative, they fail to develop an argument, and
reference no evidence to support the claim, that any direct relationship
existed between Dr. Toms and any of the prospective jurors. Therefore, the
only substantive claim for review is that the prospective jurors should have
been stricken because of an indirect relationship, through Geisinger.
Here, Appellants rely principally on Cordes for the argument in their
brief. (See Appellants’ Brief, at 19-22, 24, 28-30, 33, 35). They relied
exclusively on Cordes at jury selection. (See N.T. Jury Selection, 4/15/14,
at 190-91). Additionally, it bears noting that the trial court, in conducting
voir dire, as well as in the reasoning of its opinion, endeavored to
“synthesiz[e]” what it perceived to be analogous principles of law from
Cordes, supra. (Trial Ct. Op., 9/12/14, at 3).
However, Cordes is a plurality opinion. See Cordes, supra at 847.8
A plurality opinion is not binding precedent. See Commonwealth v.
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8
Only one judge joined Judge Wecht’s opinion in support of reversal without
reservation (P.J.E. Bender). President Judge Gantman and Judge Bowes
(Footnote Continued Next Page)
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Albert, 767 A.2d 549, 554 n.3 (Pa. Super. 2001). Cordes is not controlling
authority.
Furthermore, while a majority of the en banc panel concurred in the
result in Cordes, the judges did not agree on the reason for the result.
Accordingly, the rationale for the result is not binding precedent.9 Our
Supreme Court has explained:
While the ultimate order of a plurality opinion; i.e. an affirmance
or reversal, is binding on the parties in that particular case,
legal conclusions and/or reasoning employed by a
plurality certainly do not constitute binding authority.
Indeed, an order may be deemed a “conclusion,” but the
conclusion to which we refer in this opinion is not the order of
the plurality, but the specific legal conclusion espoused by the
plurality.
In Interest of O.A., 717 A.2d 490, 495-96 n.4 (Pa. 1998) (emphasis
added).
_______________________
(Footnote Continued)
concurred in the result. Judge Donohue filed an opinion in support of
reversal which, however, disagreed with the rationale of Judge Wecht’s
opinion. President Judge Gantman and Judge Ott joined Judge Donohue’s
opinion. Judge Olson filed a dissenting opinion in which Judge Allen joined.
Former President Judge Stevens (later Justice Stevens), although originally
listed on the panel, did not participate in the consideration or decision of the
case. See Cordes, supra at 847.
9
Among other problems unresolved in Cordes, the opinion in support of
reversal exercises a de novo standard and plenary scope of review on the
ground that review of the question of “close relationship” is “practically one
of law and as such is subject to ordinary review,” citing McHugh and Colon.
Cordes, supra at 834. However, as McHugh explains, “[o]rdinary review
by an appellate court consists of determining whether the trial court abused
its discretion or erred as a matter of law.” McHugh, supra at 270 n.3.
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Additionally, in this appeal, there is no claim that any of the challenged
prospective jurors demonstrated a likelihood of prejudice by conduct,
demeanor or answers to questions, the “second situation” in McHugh
(following Colon). McHugh, supra at 270. Therefore, despite the dual
bases asserted, the only reviewable issue presented to us in the first
question is “the first situation” in McHugh, viz., whether the court should
have presumed a likelihood of prejudice based on “a close relationship,
familial, financial, or situational, with the parties, counsel, victims, or
witnesses[.]” (Id.).
However, as noted, our independent review confirms that none of the
challenged prospective jurors had such “a close relationship with participants
in the litigation” on which prejudice must be presumed. Instead, Appellants
rely on real or perceived relationships with one or another of the Geisinger
entities, even though by the time of the second jury selection no Geisinger
unit was any longer a party to the litigation.10 In effect, they ask us to
expand the range of relationships requiring a presumption of per se
prejudice. We decline to do so.
Preliminarily, we commend the trial court for its effort to synthesize
the holdings in the various Cordes opinions into a unified body of controlling
legal principles. Nevertheless, we are constrained to conclude that the trial
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10
Dr. Toms remained an employee of Geisinger Clinic.
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court has not succeeded, and could not succeed, in discerning a consensus
on binding principles which the en banc panel in Cordes could not achieve in
the first place. Accordingly, Appellants’ reliance on Cordes to expand the
range of relationships from which prejudice must be presumed is misplaced.
“The categories of relationships which automatically call for removal
should be limited because it is desirable to have a jury composed of persons
with a variety of backgrounds and experiences.” Colon, supra at 328.
“Generally, the trial court is in the best position to assess the
credibility of a juror and determine if that juror is able to render a fair and
impartial verdict.” McHugh, supra at 273. Even the opinion in support of
reversal in Cordes recognized that “no matter the per se nature of the
applicable test, the trial court retains discretion to identify and assess the
quality of the specific relationship at hand[.]” Cordes, supra at 838.
Here, on independent review, we conclude that Appellants failed to
show, or develop an argument, why any of the four identified prospective
jurors should have been stricken for cause as presumptively prejudiced.
Appellants fail to establish that any of them had any direct close
familial, financial or situational relationship with either of the parties,
counsel, or witnesses, such that under controlling authority the trial court
must presume the likelihood of prejudice. In particular, none knew Appellee
Toms personally, none had ever worked with him, and none had been
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treated by him as a patient. None were in an employer-employee
relationship with him.
To the contrary, the assertions of a relationship through non-party
Geisinger were indirect, and mostly attenuated, largely contradicted by the
prospective jurors, and impermissibly dependent on supposition and facts
not in evidence. Often they were transparently speculative.
Specifically, there was no evidence to establish that a (hypothetical)
adverse verdict against Dr. Toms would “negatively financially effect” any
other Geisinger unit, or for that matter, his own. (N.T. Jury Selection,
4/15/14, at 66-67). Several jurors mentioned the possibility of malpractice
insurance. Others noted that the sheer size of Geisinger reduced the
likelihood of an overall negative financial impact from a single, isolated
event.
Counsel for Appellants offered no evidence to support their supposition
that an adverse verdict would create a negative financial impact, let alone a
ripple effect which would affect other Geisinger units. The trial court decided
that there were no grounds to strike for cause. Appellants’ claim of
presumptive or per se prejudice by indirect relationships is unpersuasive,
and, lacking support in controlling authority, fails.
Furthermore, the presumption of prejudice in the case of non-parties,
with no proper foundation of affiliation established, is too indirect and
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attenuated to justify an exception to the narrow limitations recognized by
this Court in Colon.
Additionally, Appellants waived their exhaustion of challenges
argument. (See Appellants’ Brief, at 38-41). Counsel failed to preserve
their claim by making a timely, specific objection of too few peremptories,
and they did not request additional ones.11 (See N.T. Jury Selection,
4/15/14, at 189-91). The only objections raised after the completion of
jury selection were the general objection to Geisinger employees or patients
based on Cordes, and the purported “cumulative impact” [of affiliation with
Geisinger] giving the “appearance of taint.” (Id. at 190).
On appeal, Appellants identify several seated jurors whom they now
argue they would have stricken. (See Appellants’ Brief, at 38-41). Counsel
mentioned none of these at jury selection. To the contrary, counsel did not
respond to the trial court’s question, “Anything else?” (N.T. Jury Selection,
4/15/14, at 191). The claim of exhaustion is waived.
It is axiomatic that in order to preserve an issue for appellate
review, a party must make a timely and specific objection at the
appropriate stage of the proceedings before the trial court.
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11
Appellants did raise the exhaustion of peremptory strikes in their original
motion to strike. (See Motion to Strike Jurors, 2/14/13, at 3 ¶ 12).
However, at that time Geisinger Medical Center and Geisinger Clinic were
still party defendants. The trial court granted summary judgment in favor of
the two Geisinger parties by order filed May 30, 2013. (See Order,
5/30/13). After the Geisinger units were dismissed, counsel for Appellants
did not revise, amend, or otherwise modify their motion to strike, or the
reasoning for it.
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Failure to timely object to a basic and fundamental error will
result in waiver of that issue. On appeal, we will not consider
assignments of error that were not brought to the tribunal’s
attention at a time at which the error could have been corrected
or the alleged prejudice could have been mitigated. In this
jurisdiction one must object to errors, improprieties or
irregularities at the earliest possible stage of the adjudicatory
process to afford the jurist hearing the case the first occasion to
remedy the wrong and possibly avoid an unnecessary appeal to
complain of the matter.
State Farm Mut. Auto. Ins. Co. v. Dill, 108 A.3d 882, 885 (Pa. Super.
2015), appeal denied, 116 A.3d 605 (Pa. 2015) (citations, internal quotation
marks and other punctuation omitted). Appellants’ first question does not
merit relief.
Appellants’ second question challenges the trial court’s jury
instructions. (See Appellants’ Brief at 6). They argue that the charge,
permitting the jury to consider information given by Dr. Tom’s qualified staff
as part of the informed consent process, was erroneous, prejudiced them
and resulted in the defense verdict. (See id. at 17; see also id. at 41-52).
We disagree.
In examining jury instructions, our standard of review is limited
to determining whether the trial court committed a clear abuse
of discretion or error of law controlling the outcome of the case.
Quinby v. Plumsteadville Family Practice, Inc., 589 Pa. 183,
907 A.2d 1061, 1069 (2006). Because this is a question of law,
this Court’s review is plenary. Id. at 1070. In reviewing a
challenge to a jury instruction, the entire charge is considered,
as opposed to merely discrete portions thereof.
Commonwealth v. Eichinger, 591 Pa. 1, 915 A.2d 1122, 1138
(2007). Trial courts are given latitude and discretion in phrasing
instructions and are free to use their own expressions so long as
the law is clearly and accurately presented to the jury. Id.- 21 -
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Cooper ex rel. Cooper v. Lankenau Hosp., 51 A.3d 183, 187 (Pa. 2012).
Here, the trial court, in support of its instruction, cites Foflygen v.
Allegheny Gen. Hosp., 723 A.2d 705, 711 (Pa. Super. 1999), appeal
denied, 740 A.2d 233 (Pa. 1999), and Bulman v. Myers, 467 A.2d 1353,
1355 (Pa. Super. 1983).
In Foflygen, this Court explained:
Because the validity of the patient’s consent is based on the
scope of the information relayed, rather than the identity of the
individual communicating the information, we conclude that the
trial court properly instructed the jury to consider the
information presented by Appellee-surgeon’s nurse along with
that discussed by Appellee-surgeon when deliberating on the
informed consent issue. Therefore, this issue is also meritless.
Foflygen, supra at 711 (citation omitted). We conclude the same
principles apply here.
Similarly, in Bulman, this Court reasoned, “the primary interest of
Pennsylvania jurisprudence in regard to informed consent is that of having
the patient informed of all the material facts from which he can make an
intelligent choice as to his course of treatment[.]” Bulman, supra at 1355
(citation omitted).
Appellants argue that Foflygen and Bulman, pre-date MCARE, which
they do, and that they are clearly distinguishable, which they are not. (See
Appellants’ Brief, at 45). Appellants’ purported distinction, that those cases
involved nurses, while this case involves a physician’s assistant, is patently
trivial and legally frivolous. Furthermore, and more substantively,
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Appellants fail to develop an argument supporting their principal, if implicit,
claim, that the enactment of MCARE preempted the holding and principles of
Foflygen and Bulman. (See Appellants’ Brief, at 41-52).
To the contrary, we conclude that the purposes of MCARE are better
served by the encouragement of the dissemination of as much accurate
information about prospective surgery as possible. “Consent is informed if
the patient has been given a description of a procedure set forth in
subsection (a) and the risks and alternatives that a reasonably prudent
patient would require to make an informed decision as to that procedure.”
40 Pa.C.S.A. § 1303.504(b).
Here, the court’s instruction accurately informed the jury of the law.
We discern no error and no prejudice. Appellants’ second claim merits no
relief.
Appellants’ third question challenges the denial of their motion in
limine to preclude reference to the consent form Mrs. Shinal signed. (See
Appellants’ Brief, at 6). They appear to argue that because Mrs. Shinal
claimed that her consent was not properly informed, admission of the
standard consent form, which she signed, was “unfairly prejudicial.” (Id. at
55; see also id. at 52-59). We disagree.
“In reviewing a challenge to the admissibility of evidence, we will only
reverse a ruling by the trial court upon a showing that it abused its
discretion or committed an error of law.” Yacoub v. Lehigh Valley Med.
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Associates, P.C., 805 A.2d 579, 588 (Pa. Super. 2002), appeal denied, 825
A.2d 639 (Pa. 2003) (citation omitted).
Here, Appellants concede that the effort to conceal Mrs. Shinal’s
signing of a standard consent form “appears disingenuous.” (Appellants’
Brief, at 55). We agree. Appellants offer no controlling authority
whatsoever in support of their claim that they had a legal justification to
conceal the fact that Mrs. Shinal signed a standard consent form for her
surgery. (See id. at 52-59). They argue that the form was not specific
enough, but offer no supporting authority for that claim either.
The trial court permitted Mrs. Shinal to explain her position at trial,
and gave a limiting instruction on the significance of the consent form. We
discern no abuse of discretion. Appellants’ third claim does not merit relief.
Finally, Appellants claim generically that the trial court erred or abused
its discretion in denying their motion for post-trial relief. (See id. at 6).
However, Appellants only present a one-sentence boilerplate claim to this
effect, (see id. at 59);12 they fail to develop any argument and they offer no
supporting authority. Appellants’ catch-all claim is waived. See Pa.R.A.P.
2119(a), (b).
____________________________________________
12
In its entirety, the claim states: “Additionally, based upon the foregoing,
Appellants/Plaintiffs respectfully submit that the trial court committed an
error of law and/or abuse of discretion in denying Plaintiffs’ Motion for Post
Trial Relief.” (Appellants’ Brief, at 59).
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Our reasoning differs somewhat from that of the trial court. However,
we may affirm the decision of the trial court on any valid basis appearing of
record. See Louis Dreyfus Commodities Suisse SA v. Fin. Software
Sys., Inc., 99 A.3d 79, 82 (Pa. Super. 2014).
Judgment affirmed.
Judge Allen joins the Opinion.
Judge Lazarus files a Dissenting Statement.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/25/2015
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