Shinal, M. v. Toms, S.

J-S41032-15

2015 PA Super 178

MEGAN 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.

J-S41032-15

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.

____________________________________________

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.

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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).

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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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