162 A.3d 429 (Pa. 2017), 31 MAP 2016, Shinal v. Toms

Docket Nº:31 MAP 2016
Citation:162 A.3d 429
Opinion Judge:WECHT, JUSTICE.
Party Name:MEGAN L. SHINAL AND ROBERT J SHINAL, HER HUSBAND, Appellants v. STEVEN A. TOMS, M.D., Appellee
Judge Panel:SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ. Justice Wecht delivers the Opinion of the Court. Justices Donohue and Dougherty join the opinion in full. Justice Todd joins the opinion, except with respect to Part 11(A)(2). Justice Mundy joins Part 11(A) of the opinion in full. Ju...
Case Date:June 20, 2017
Court:Supreme Court of Pennsylvania
SUMMARY

In a medical malpractice action premised upon lack of informed consent, the issue presented was whether the trial court erred in refusing to strike prospective jurors for cause based upon their relationships to the case through their employer or their immediate family member's employer. The Pennsylvania Supreme Court concluded the trial court did not err in this regard. However, the Court... (see full summary)

 
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Page 429

162 A.3d 429 (Pa. 2017)

MEGAN L. SHINAL AND ROBERT J SHINAL, HER HUSBAND, Appellants

v.

STEVEN A. TOMS, M.D., Appellee

No. 31 MAP 2016

Supreme Court of Pennsylvania

June 20, 2017

Argued November 2, 2016

Appeal from the Order of the Superior Court at No. 1714 MDA 2014 dated August 25, 2015, reconsideration denied October 28, 2015, Affirming the Judgment of the Montour County Court of Common Pleas, Civil Division, dated September 29, 2014 at No. 588-CV-2009.

SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ. Justice Wecht delivers the Opinion of the Court. Justices Donohue and Dougherty join the opinion in full. Justice Todd joins the opinion, except with respect to Part 11(A)(2). Justice Mundy joins Part 11(A) of the opinion in full. Justices Donohue and Dougherty join the opinion. Justice Todd joins the opinion except with respect to Part II(A)(2) and files a concurring and dissenting opinion. Justice Mundy joins Parts I and II(A) of the opinion. Justice Baer files a dissenting opinion in which Chief Justice Saylor joins and Justice Mundy joins Part I of the dissent.

OPINION

WECHT, JUSTICE.

In this medical malpractice action premised upon lack of informed consent, we address whether the trial court erred in refusing to strike prospective jurors for cause based upon their relationships to the case through their employer or their immediate family member's employer. We conclude that the trial court did not err in this regard. However, we conclude further that the trial court committed an error of law when it instructed the jury to consider information provided by the defendant surgeon's qualified staff in deciding the merits of the informed consent claim. Because a physician's duty to provide information to a patient sufficient to obtain her informed consent is non-delegable, we reverse the Superior Court's order affirming the judgment entered in favor of the defendant, and we remand for a new trial.

I. Background

Geisinger Health System, situated primarily in Montour County, is a large, integrated health system comprised of, inter alia, hospitals, physician groups, medical clinics, surgical centers, and a health insurance provider. Geisinger Health System's flagship hospital is Geisinger Medical Center, located in Danville, Montour County. Geisinger Clinic, also part of Geisinger Health System, is the business entity employing physicians within Geisinger Health System. Geisinger Health System and its related business entities employ about 12,000 people, making it the largest employer in Montour County. Reproduced Record (R.R.) 208a. Steven A. Toms, M.D., is the Director of the Department of Neurosurgery at Geisinger Medical Center, and is employed by Geisinger Clinic as a neurosurgeon.

On November 26, 2007, Megan L. Shinal and Dr. Toms met for a twenty-minute initial consultation to discuss removing a recurrent non-malignant tumor from the pituitary region of Mrs. Shinal's brain. Years earlier, a surgeon operated to extract the tumor by accessing it through the nose, but was unable to remove all of it. The residual portion of the tumor remained and increased in size until it extended into vital structures of the brain, jeopardizing Mrs. Shinal's eyesight and her carotid artery, causing headaches, and threatening to impact Mrs. Shinal's pituitary and hormone function. If left untreated, the tumor would eventually become life-threatening.

According to Dr. Toms' subsequent trial testimony, the November 26, 2007 meeting entailed a discussion of Mrs. Shinal's goals and expectations in life and the risks of different approaches to surgery, including possible damage to the nearby carotid artery and the optic nerve. In Dr. Toms' recollection, Mrs. Shinal stated that she wanted to " be there" for her child, who was then nine years old. R.R. 503a. Dr. Toms understood Mrs. Shinal to mean that " she wanted me to push forward if I got in a situation where I thought I could [remove all of the tumor] with a reasonable risk." R.R. 503a. Dr. Toms testified that he reviewed with Mrs. Shinal the alternatives, risks, and benefits of total versus subtotal resection, and shared with Mrs. Shinal his opinion that, although a less aggressive approach to removing the tumor was safer in the short term, such an approach would increase the likelihood that the tumor would grow back. Although he was unable to recall many of the specifics about his conversation with Mrs. Shinal, Dr. Toms testified that he advised Mrs. Shinal that total surgical resection offered the highest chance for long-term survival. R.R. 503-510a. By the end of the visit, Mrs. Shinal had decided to undergo surgery. However, the surgical approach had not yet been determined. R.R. 513a.

Shortly thereafter, on December 19, 2007, Mrs. Shinal had a telephone conversation with Dr. Toms' physician assistant. Mrs. Shinal later testified that she asked the physician assistant about scarring that would likely result from surgery, whether radiation would be necessary, and about the date of the surgery. The medical record of this telephone call indicated that Dr. Toms' physician assistant also answered questions about the craniotomy incision. On January 17, 2008, Mrs. Shinal met with the physician assistant at the Geisinger Medical Center's Neurosurgery Clinic. The physician assistant obtained Mrs. Shinal's medical history, conducted a physical, and provided Mrs. Shinal with information relating to the surgery. Mrs. Shinal signed an informed consent form.1

At trial, Mrs. Shinal was unable to recall being informed of the relative risks of the surgery, other than coma and death. Mrs. Shinal testified that, had she known the alternative approaches to surgery, i.e., total versus subtotal resection, she would have chosen subtotal resection as the safer, less aggressive alternative.

On January 31, 2008, Mrs. Shinal underwent an open craniotomy total resection of the brain tumor at Geisinger Medical Center. During the operation, Dr. Toms perforated Mrs. Shinal's carotid artery, which resulted in hemorrhage, stroke, brain injury, and partial blindness.

On December 17, 2009, Mrs. Shinal and her husband, Robert J. Shinal (collectively " the Shinals" ), initiated this medical malpractice action in the Court of Common Pleas of Montour County, alleging that Dr. Toms failed to obtain Mrs. Shinal's informed consent for the January 31, 2008 surgery.2 According to the Shinals' complaint, Dr. Toms failed to explain the risks of surgery to Mrs. Shinal or to offer her the lower risk surgical alternative of subtotal resection of the benign tumor, followed by radiation. The Shinals initially named as defendants Geisinger Medical Center, Geisinger Clinic, and Dr. Toms. The parties agreed to bifurcate the issues of liability and damages. The liability phase of the trial was to address solely the issue of whether Dr. Toms obtained Mrs. Shinal's informed consent before surgery.

Prior to jury selection, the Shinals moved to strike all potential jurors who were either employed or insured by, or who had family members employed or insured by, any Geisinger entity. On February 12, 2013, the trial court granted in part and denied in part the Shinals' motion, directing that prospective jurors who were employed by named defendants Geisinger Medical Center or Geisinger Clinic, or who had family members residing in the same house who were so employed, would be stricken for cause. The trial court immediately attempted to select a jury. However, after numerous prospective jurors were disqualified, the court aborted the selection process and postponed the trial. The Shinals moved for a change of venue, which the trial court denied.

On May 28, 2013, the trial court granted a motion for partial summary judgment in favor of Geisinger Medical Center and Geisinger Clinic, because the duty to obtain Mrs. Shinal's informed consent belonged solely to Dr. Toms, not to Dr. Toms' employer or the employer's agents. See Valles v. Albert Einstein Med. Ctr., 569 Pa. 542, 805 A.2d 1232, 1239 (Pa. 2002) (holding that a medical facility lacks control over the manner in which a physician performs his/her duty to obtain informed consent, and cannot be vicariously liable for breach of that duty).

On April 8, 2014, the trial court amended its prior order of February 12, 2013, in an attempt to comply with the two plurality opinions of an intervening Superior Court decision. See Cordes v. Assocs. of Internal Med., 2014 PA Super 52, 87 A.3d 829, 843-45 (Pa. Super. 2014) (Opinion in Support of Reversal (" OISR" ) by Wecht, J.) (requiring, inter alia, the exclusion of a prospective juror based upon a presumption of prejudice arising from the juror's employment by the parent company of a named corporate defendant); id. at 869-70 (OISR by Donohue, J.) (requiring, inter alia, the exclusion...

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