Case Information

Wecht, J.] IN THE SUPREME COURT OF PENNSYLVANIA

MIDDLE DISTRICT

MEGAN L. SHINAL AND ROBERT J. : No. MAP 2016 SHINAL, HER HUSBAND,

Appeal from the Order Superior Appellants Court No. MDA 2014 dated August 25, 2015, reconsideration denied October 28, 2015, Affirming Judgment Montour County Court v. Common Pleas, Civil Division, dated September 29, at No. 588 -CV - STEVEN A. TOMS, M.D., 2009.

Appellee : ARGUED: November 2, 2016 DISSENTING OPINION DECIDED: June 20,

JUSTICE BAER

I respectfully but fervently dissent from the Majority's holding that physician's qualified staff cannot aid the physician fulfilling duty patient's informed consent. The law simply does support such proposition. Thus, Superior Court properly concluded that the trial court did not instructing jury that, determining whether Toms provided Mrs. Shinal with the appropriate information inform her consent, the jury could consider relevant information communicated to Mrs. Shinal any qualified person acting assistant Dr. Toms. Moreover, while I agree with the Majority that the trial court did not err by refusing strike four prospective jurors for cause, disagree with the Majority's holding some cases, appellate court should utilize de novo standard when reviewing whether court erred addressing request strike juror for cause. Rather, this Court's well -established precedent provides that appellate courts should *2 employ an abuse -of -discretion standard when reviewing whether trial courts erred in disposing requests strike prospective jurors for cause. Because the Superior Court reached the correct result this matter, I would affirm that court's judgment.

I. Jury Instruction: Informed Consent

The Majority correctly concludes that a physician owes a to his patient obtain patient's informed consent undergo certain procedures. This principle of law indisputable. Indeed, Subsection 1303.504(a) the Medical Care Availability Reduction of Error Act ("MCARE Act" or "Act") clearly unambiguously establishes this duty. P.S. § 1303.504(a).1 The court's instruction jury adequately communicated legal principle. N.T., 4/21/2014, ("A physician must obtain patient's consent perform surgery a patient. The patient's consent must also informed."). also agree with the Majority physician cannot delegate this duty. In other

words, physician cannot assign the duty patient's informed consent Subsection 1303.504(a) states, full, as follows:

(a) Duty of physicians. --Except emergencies, physician owes duty to a patient consent of the patient or the patient's authorized representative prior conducting following procedures: (1) Performing surgery, including the related administration anesthesia.

(2) Administering radiation or chemotherapy.

(3) Administering blood transfusion.

(4) Inserting surgical device or appliance.

(5) Administering an experimental medication, using an experimental device or using approved medication device experimental manner.

40 P.S. § 1303.504.

member of his staff anyone else and, thus, avoid liability for any damaging breach the duty. Rather, the duty to obtain a patient's informed consent attaches solely to the patient's physician, that physician is liable to patient if the patient can establish that the physician performed a qualifying procedure on patient without his informed consent.

It this point analysis that part company with the Majority. Based upon determination that a physician cannot delegate his duty to obtain a patient's informed consent, the Majority makes leap in logic and concludes that a physician is prohibited from utilizing qualified staff to aid him in performing this duty. However, prohibition delegation duty does mean physician precluded from utilizing qualified member of his staff to aid fulfilling physician's patient's informed consent.

Indeed, immediately after the MCARE Act specifies that physician has the duty to patient's informed consent, the Act explains that "[c]onsent informed if patient has been given description of a procedure set forth subsection (a) and the risks and alternatives that reasonably prudent patient would require make an informed decision that procedure." 40 P.S. § 1303.504(b). Thus, while the MCARE Act assigns physicians the duty obtain informed consent requires that certain information must conveyed patients inform their consent, the Act conspicuously does mandate that only physicians themselves can provide information patients inform their consent. Instead, the Act explains that consent is "if the patient has been given" the information specified Subsection 1303.504(b).2 The Legislature could have, but did not, expressly require that only Subsection 1303.504(b) the MCARE Act provides, full, follows: (continued...)

physicians can provide patients with information regarding informed consent. Instead, the Legislature crafted the first sentence of Subsection 1303.504(b) in the passive voice, thus leaving open the method of informing a patient's consent to the professional judgment and of the physician charged with the duty of obtaining patient's informed consent. Stated succinctly, there nothing in the law Commonwealth precluding a physician from utilizing qualified staff to aid in his duty to patient's informed consent. If qualified staff somehow negligent in aiding physician in informing patient's consent, then the physician remains liable if that negligence results the failure to obtain the patient's informed consent.

To hold otherwise improperly injects judiciary into the day-to-day tasks of physicians such Dr. Toms and fails to acknowledge the reality the practice of medicine. For instance, the Majority describes, Toms testified that he reviewed (... continued)

(b) Description of procedure. --Consent if the patient has been given description of a procedure set forth subsection (a) and the risks and alternatives that reasonably prudent patient would require to make informed decision as to that procedure. The physician shall be entitled to present evidence description of that procedure those risks and alternatives that physician acting accordance accepted medical standards medical practice would provide. P.S. § 1303.504(b). The Majority contends that "Section 504 does not merely

require that the patient's consent informed; it specifically imposed upon physicians provide patient the requisite information obtain informed consent." Majority Opinion at 39. As described supra, the first sentence Subsection 1303.504(b) does support this contention.

Moreover, the Majority cites the second sentence Subsection 1303.504(b) to bolster position that only physicians can provide information patients to aid in informing their consent. Majority Opinion 39-40. In my view, the second sentence this subsection does speak who can provide information patient to aid in informing patient's consent. Rather, the sentence simply allows physician present evidence regarding the type information other qualified physicians would provide similarly situated patients inform their consent defense of a claim that the physician failed patient's informed consent.

with Mrs. Shinal the alternatives, risks, and benefits of total versus subtotal resection. Majority Opinion 3. After that visit with Dr. Toms, Mrs. Shinal decided undergo surgery. However, soon thereafter, Mrs. Shinal called asked Dr. Shinal's physician assistant questions related surgery - questions physician assistant answered. Id.

Under Majority's holding, the trial court should not have allowed the jury to consider whether the physician assistant provided answers to Mrs. Shinal that assisted Dr. Toms fulfill his Mrs. Shinal's informed consent undergo surgery. Instead, it would seem, for fear incurring liability for failing Mrs. Shinal's consent, Dr. Toms had to address personally all Mrs. Shinal's surgery - related phone calls, well as all other patients' surgery -related calls. Absent express legislation, physicians simply should not needlessly charged with the responsibility being involved personally every conceivable aspect their practices that may assist them informing their patients' consent.

Thus, addition my conclusion that Majority's holding legally inaccurate, I fear that today's decision will have far-reaching, negative impact manner in which physicians serve their patients. For fear legal liability, physicians now must be involved with every aspect informing their patients' consent, thus delaying seriously ill patients access physicians and the critical services that they provide. Courts should not impose such unnecessary burdens upon already strained overwhelmed occupation when the law does clearly warrant this judicial interference.

Based upon this foundation, conclude that Superior Court correctly determined that court did instructing the jury in determining whether Toms provided Mrs. Shinal with the appropriate information *6 inform her consent, jury could consider relevant information communicated to Mrs. Shinal by any qualified person acting an assistant Toms.

II. Juror Challenge for Cause

Before addressing whether court erred refusing strike several prospective jurors for cause, the Majority addresses standard review that an appellate court should employ when considering such matters. Majority Opinion at 10- 17. Agreeing with the Superior Court's decision Cordes v. Association Internal Medicine, 87 A.3d 829 (Pa. Super. 2014), the Majority concludes that an appellate court's standard review should differ depending upon whether bias is presumed, as resulting from the juror's close familial, financial, or situational relationship with the parties, counsel, victims, or witnesses, or bias actual, revealed juror's conduct and answers questions. Id. at 15-16.

Regarding the former scenario, the Majority observes that, when trial court concludes that prospective juror's relationship party, counsel, victim, witness sufficiently close, that trial court should presume prejudice dismiss juror for Id. at 16. Citing Commonwealth v. Briggs, A.3d (Pa. 2011), the cause. Majority opines that, circumstance (presumption bias), this Court "will review trial court's determination for an error of law." Id. The Majority then asserts correctly that this Court reviews "questions of law" de novo. Id.

Next, addressing when trial court determines that there actual bias, the Majority concludes that an appellate court should employ an abuse -of -discretion standard when reviewing court's decision regarding the dismissal the juror. Id. at 16-17. Lastly, the Majority posits that these two scenarios are mutually exclusive, suggesting at times, appellate court should utilize some combination de novo abuse -of -discretion standard review. See id. (explaining that *7 "even in context of presumed prejudice, court retains discretion explore and assess the relevant relationship presented").

In my view, this Court's precedent requires more simplistic straight -forward approach appellate review of trial courts' decisions regarding whether strike prospective jurors for cause: Appellate courts should review such decisions for an of discretion. See, e.g., Briggs, 12 A.3d 332-33 (Pa. 2011) (explaining "trial court's decision regarding whether disqualify a juror for cause is within its sound discretion and will not be reversed in absence palpable abuse discretion") (citing Commonwealth v. Stevens, A.2d 507,521 (Pa. 1999)).

For instance, Briggs, which the Majority cites in support of its de novo review discussion, this Court did not employ de novo standard review when considering whether the trial court erred failing presume prejudice strike for cause three jurors who allegedly had significant relationship with the victim or her family members. Instead, considering this issue, the Court expressly stated, "A court's decision regarding whether disqualify juror for cause is within sound discretion and will reversed absence palpable abuse discretion." Briggs, A.3d at 332-33. To the extent that Briggs, as suggested the Majority, required this Court determine if the trial court committed "error of law" examining whether presume prejudice as these jurors, that determination was encompassed within the Court's abuse -of -discretion review, such review contemplates consideration whether trial court overrode or misapplied the law. See Commonwealth v. Safka, A.3d 1239,1249 (Pa. 2016) ("[A]n abuse of discretion is merely error of judgment, but if in reaching conclusion the law overridden or misapplied, or the judgment exercised manifestly unreasonable, the result partiality, prejudice, bias or shown by evidence or the record, abused.") (citation omitted).

Here, the Shinals sought to strike for cause four jurors due to their alleged relationships Geisinger entities. As the Majority highlights, after closely examining these relationships, the trial court determined that the relationships were too attenuated to presume the jurors were biased that, given the jurors' credible assurances impartiality, they were fit to serve on the jury. Majority Opinion at 7. The record establishes that, reaching these conclusions, the trial court did not override or misapply the law; moreover, the record no way suggests that the court's decision was the result partiality, prejudice, bias, or Thus, the court did its by refusing to strike the jurors for cause.3 This Court also granted allowance appeal to consider whether the Superior Court properly determined that the Shinals waived their "exhaustion of challenges" argument. By way background, their brief the Superior Court, the Shinals contended that the trial court erred by refusing strike for cause four prospective jurors. The Shinals further argued that the error prejudiced them because it forced them exhaust their peremptory challenges. Shinals' Superior Court Brief 38-41. The Shinals insisted had the trial court properly struck the four jurors for cause, they would have utilized their peremptory challenges remove other defense -friendly jurors from the venire. The Shinals noted the names several jurors that they would have stricken with their peremptory challenges. Id.

Like this Court, the Superior Court concluded that court did err by refusing strike the four jurors for cause. Yet, after reaching that conclusion, Superior Court unnecessarily addressed the Shinals' argument alleged error prejudiced them. Specifically, the Superior Court deemed waived the Shinals' "exhaustion of challenges" argument, because the Shinals "failed preserve their claim by making timely, specific objection too few peremptories, they did not request additional ones." Shinal v. Toms, 122 A.3d 1066, 1078 (Pa. Super. 2015). The court also supported finding waiver by pointing out that the Shinals did not mention the trial court that they wished strike the jurors who they later named their Superior Court brief. Id.

The Superior Court's conclusion that the trial court did not err refusing strike jurors for cause rendered moot Shinals' "exhaustion of challenges" argument. Thus, the court's finding of waiver classic example obiter dicta. Because this Court also holds that the trial court did not err refusing strike jurors for cause, I believe the Court simply should refrain from commenting Superior Court's gratuitous finding of waiver.

Ill. Conclusion

Because the Superior Court properly affirmed the trial court's judgment entered favor Toms, would affirm judgment. Chief Justice Saylor joins dissenting opinion Justice Mundy joins Part I this dissenting opinion.