Shinal v. Toms

• Decision Date: 25 August 2015
• Docket Number: No. 1714 MDA 2014,1714 MDA 2014
• Citation: 122 A.3d 1066,2015 PA Super 178
• Parties: Megan I. SHINAL and Robert J. Shinal, her Husband, Appellants v. Steven A. TOMS, M.D., Appellee.
• Court: Pennsylvania Superior Court

122 A.3d 1066

2015 PA Super 178

Megan I. SHINAL and Robert J. Shinal, her Husband, Appellants

v.Steven A. TOMS, M.D., Appellee.

No. 1714 MDA 2014

Superior Court of Pennsylvania.

Submitted June 15, 2015.

Filed Aug. 25, 2015.

Reargument Denied Oct. 28, 2015.

Kristin A. Mazzarella, Scranton, for appellants.

Michelle L. Wilson, Bethlehem and Audrey J. Copeland, King of Prussia, for appellee.

BEFORE: ALLEN, J., LAZARUS, J., and PLATT, J.^*

Opinion

OPINION BY PLATT, J.

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 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, 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).

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., 569 Pa. 542, 805 A.2d 1232, 1239 (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 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, ––– Pa. ––––, 102 A.3d 986 (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 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. ).

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. 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

...