                                   [J-106-2016] [MO: Wecht, J.]
                      IN THE SUPREME COURT OF PENNSYLVANIA
                                        MIDDLE DISTRICT


MEGAN L. SHINAL AND ROBERT J.                     :   No. 31 MAP 2016
SHINAL, HER HUSBAND,
                                                      Appeal from the Order of the Superior
                        Appellants                    Court at No. 1714 MDA 2014 dated
                                                      August 25, 2015, reconsideration
                                                      denied October 28, 2015, Affirming the
                 v.                                   Judgment of the Montour County Court
                                                      of Common Pleas, Civil Division, dated
                                                      September 29, 2014 at No. 588 -CV -
STEVEN A. TOMS, M.D.,                                 2009.

                        Appellee                  :   ARGUED: November 2, 2016


                                      DISSENTING OPINION


JUSTICE BAER                                                  DECIDED: June 20, 2017

        I   respectfully but fervently dissent from the Majority's holding that a physician's

qualified staff cannot aid the physician in fulfilling his duty to obtain a patient's informed

consent. The law simply does not support such a proposition. Thus, the Superior Court

properly concluded that the trial court did not abuse its discretion by instructing the jury

that, in determining whether Dr. Toms provided Mrs. Shinal with the appropriate

information to inform her consent, the jury could consider relevant information

communicated to Mrs. Shinal by any qualified person acting as an assistant to Dr.

Toms.       Moreover, while   I   agree with the Majority that the trial court did not err by

refusing to strike four prospective jurors for cause,    I   disagree with the Majority's holding

that, in some cases, an appellate court should utilize a de novo standard when

reviewing whether a trial court erred in addressing a request to strike a juror for cause.

Rather, this Court's well -established precedent provides that appellate courts should
employ an abuse -of -discretion standard when reviewing whether trial courts erred in

disposing of requests to strike prospective jurors for cause. Because the Superior Court

reached the correct result in this matter, would affirm that court's judgment.
                                              I




                            I.   Jury Instruction: Informed Consent
         The Majority correctly concludes that a physician owes a duty to his patient to

obtain the patient's informed consent to undergo certain procedures. This principle of

law is indisputable.       Indeed, Subsection 1303.504(a) of the Medical Care Availability

and Reduction of Error Act ("MCARE Act" or "Act") clearly and unambiguously

establishes this duty. 40 P.S. § 1303.504(a).1 The trial court's instruction to the jury

adequately communicated this legal principle.           N.T., 4/21/2014, at 223 ("A physician

must obtain a patient's consent to perform surgery on a patient. The patient's consent

must also be informed.").

         I   also agree with the Majority that a physician cannot delegate this duty. In other

words, a physician cannot assign the duty to obtain a patient's informed consent to a


1   Subsection 1303.504(a) states, in full, 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.

              (2) Administering radiation or chemotherapy.

              (3) Administering a blood transfusion.

              (4) Inserting a surgical device or appliance.

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

40 P.S. § 1303.504.




                                  [J-106-2016] [MO: Wecht, J.]   -   2
member of his staff or anyone else and, thus, avoid liability for any damaging breach of

the duty. Rather, the duty to obtain a patient's informed consent attaches solely to the

patient's physician, and that physician is liable to the patient if the patient can establish

that the physician performed a qualifying procedure on the patient without his informed

consent.

         It is   at this point of the analysis that   I   part company with the Majority.   Based

upon its determination that a physician cannot delegate his duty to obtain a patient's

informed consent, the Majority makes a leap in logic and concludes that a physician is

prohibited from utilizing his qualified staff to aid him in performing this duty. However, a

prohibition on the delegation of this duty does not mean that a physician is precluded

from utilizing a qualified member of his staff to aid in fulfilling the physician's duty to

obtain a patient's informed consent.

         Indeed, immediately after the MCARE Act specifies that a physician has the duty

to obtain a patient's informed consent, the Act explains that "[c]onsent 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 P.S. § 1303.504(b).       Thus, while the

MCARE Act assigns to physicians the duty to obtain informed consent and requires that

certain information must be conveyed to patients to inform their consent, the Act

conspicuously does not mandate that only physicians                        themselves can provide

information to patients to inform their consent. Instead, the Act explains that consent is

informed "if the patient has been given" the information specified in Subsection

1303.504(b).2        The Legislature could have, but did not, expressly require that only



2   Subsection 1303.504(b) of the MCARE Act provides, in full, as follows:
(continued...)


                                 [J-106-2016] [MO: Wecht, J.]      -   3
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 discretion of the physician charged with the duty of obtaining the patient's

informed consent. Stated succinctly, there is nothing in the law of this Commonwealth

precluding a physician from utilizing his qualified staff to aid in his duty to obtain a

patient's informed consent.   If   qualified staff is somehow negligent in aiding a physician

in   informing a patient's consent, then the physician remains liable if that negligence

results in the failure to obtain the patient's informed consent.

        To hold otherwise improperly injects the judiciary into the day-to-day tasks of

physicians such as Dr. Toms and fails to acknowledge the reality of the practice of

medicine. For instance, as the Majority describes, Dr. Toms testified that he reviewed

(... continued)
        (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.

40 P.S. § 1303.504(b). The Majority contends that "Section 504 does not merely
require that the patient's consent be informed; it specifically imposed the duty upon
physicians to provide to the patient the requisite information and to obtain informed
consent." Majority Opinion at 39. As described supra, the first sentence of Subsection
1303.504(b) does not support this contention.

       Moreover, the Majority cites the second sentence of Subsection 1303.504(b) to
bolster its position that only physicians can provide information to patients to aid in
informing their consent. Majority Opinion at 39-40. In my view, the second sentence of
this subsection does not speak to who can provide information to a patient to aid in
informing the patient's consent. Rather, the sentence simply allows a physician to
present evidence regarding the type of information other qualified physicians would
provide to similarly situated patients to inform their consent in defense of a claim that
the physician failed to obtain a patient's informed consent.




                              [J-106-2016] [MO: Wecht, J.]    -   4
with Mrs. Shinal the alternatives, risks, and benefits of total versus subtotal resection.

Majority Opinion at 3. After that visit with Dr. Toms, Mrs. Shinal decided to undergo

surgery. However, soon thereafter, Mrs. Shinal called and asked Dr. Shinal's physician

assistant questions related to the surgery        -   questions that the physician assistant

answered. Id.

         Under the 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 duty to obtain Mrs. Shinal's informed consent to undergo surgery.

Instead, it would seem, for fear of incurring liability for failing to obtain Mrs. Shinal's

informed consent, Dr. Toms had to address personally all of Mrs. Shinal's surgery -

related phone calls, as well as all of his other patients' surgery -related calls. Absent

express legislation, physicians simply should not be needlessly charged with the

responsibility of being involved personally with every conceivable aspect of their

practices that may assist them in informing their patients' consent.

         Thus, in addition to my conclusion that the Majority's holding is legally inaccurate,

I   fear that today's decision will have a far-reaching, negative impact on the manner in

which physicians serve their patients. For fear of legal liability, physicians now must be

involved with every aspect of informing their patients' consent, thus delaying seriously ill

patients access to physicians and the critical services that they provide. Courts should

not impose such unnecessary burdens upon an already strained and overwhelmed

occupation when the law does not clearly warrant this judicial interference.

         Based upon this foundation,       I   conclude that the Superior Court correctly

determined that the trial court did not abuse its discretion by instructing the jury that, in

determining whether Dr. Toms provided Mrs. Shinal with the appropriate information to




                               [J-106-2016] [MO: Wecht, J.]    -   5
inform her consent, the jury could consider relevant information communicated to Mrs.

Shinal by any qualified person acting as an assistant to Dr. Toms.

                             II.   Juror Challenge for Cause
         Before addressing whether the trial court erred by refusing to strike several

prospective jurors for cause, the Majority addresses the standard of review that an

appellate court should employ when considering such matters. Majority Opinion at 10-

17.   Agreeing with the Superior Court's decision in Cordes           v.   Association of Internal

Medicine, 87 A.3d 829 (Pa. Super. 2014), the Majority concludes that an appellate

court's standard of 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 is actual, as revealed by the juror's

conduct and answers to questions. Id. at 15-16.

         Regarding the former scenario, the Majority observes that, when a trial court

concludes that a prospective juror's relationship with a party, counsel, victim, or witness

is sufficiently close, that trial court should presume prejudice and dismiss the juror for

cause.    Id. at 16.   Citing to Commonwealth    v.   Briggs, 12 A.3d 291 (Pa. 2011), the

Majority opines that, in this circumstance (presumption of bias), this Court "will review

the 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 a trial court determines that there is actual bias, the

Majority concludes that an appellate court should employ an abuse -of -discretion

standard when reviewing a trial court's decision regarding the dismissal of the juror. Id.

at 16-17. Lastly, the Majority posits that these two scenarios are not mutually exclusive,

suggesting that, at times, an appellate court should utilize some combination of a de

novo and an abuse -of -discretion standard of review.       See id. at 17 (explaining that




                             [J-106-2016] [MO: Wecht, J.]    -   6
"even in the context of presumed prejudice, the trial court retains discretion to explore

and assess the relevant relationship presented").

       In   my view, this Court's precedent requires a more simplistic and straight -forward

approach to appellate review of trial courts' decisions regarding whether to strike

prospective jurors for cause:          Appellate courts should review such decisions for an

abuse of discretion. See, e.g., Briggs, 12 A.3d at 332-33 (Pa. 2011) (explaining that a

"trial court's decision regarding whether to disqualify a juror for cause is within its sound

discretion and will not be reversed in the absence of a palpable abuse of discretion")

(citing Commonwealth        v.   Stevens, 739 A.2d 507,521 (Pa. 1999)).

       For instance, in Briggs, which the Majority cites in support of its de novo review

discussion, this Court did not employ a de novo standard of review when considering

whether the trial court erred by failing to presume prejudice and strike for cause three

jurors who allegedly had a significant relationship with the victim or her family members.

Instead, in considering this issue, the Court expressly stated, "A trial court's decision

regarding whether to disqualify a juror for cause is within its sound discretion and will

not be reversed in the absence of a palpable abuse of discretion." Briggs, 12 A.3d at

332-33. To the extent that Briggs, as suggested by the Majority, required this Court to

determine    if   the trial court committed an "error of law" in examining whether to presume

prejudice as to these jurors, that determination was encompassed within the Court's

abuse -of -discretion review, as such a review contemplates consideration of whether the

trial court overrode or misapplied the law.          See Commonwealth        v.   Safka, 141 A.3d

1239,1249 (Pa. 2016) ("[A]n abuse of discretion         is not   merely an error of judgment, but

if in reaching a       conclusion the law is overridden or misapplied, or the judgment

exercised is manifestly unreasonable, or the result of partiality, prejudice, bias or

as shown by the evidence or the record, discretion is abused.") (citation omitted).




                                   [J-106-2016] [MO: Wecht, J.]   -   7
       Here, the Shinals sought to strike for cause four jurors due to their alleged

relationships with 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 and that, given the jurors' credible assurances of

impartiality, they were fit to serve on the jury.         Majority Opinion at 7.   The record

establishes that, in reaching these conclusions, the trial court did not override or

misapply the law; moreover, the record in no way suggests that the court's decision was

the result of partiality, prejudice, bias, or              Thus, the court did not abuse its

discretion by refusing to strike the jurors for cause.3


3 This Court also granted allowance of appeal to consider whether the Superior Court
properly determined that the Shinals waived their "exhaustion of challenges" argument.
By way of background, in their brief to the Superior Court, the Shinals contended that
the trial court erred by refusing to strike for cause four prospective jurors. The Shinals
further argued that the error prejudiced them because it forced them to exhaust their
peremptory challenges. Shinals' Superior Court Brief at 38-41. The Shinals insisted
that, had the trial court properly struck the four jurors for cause, they would have utilized
their peremptory challenges to remove other defense -friendly jurors from the venire.
The Shinals noted the names of several jurors that they would have stricken with their
peremptory challenges. Id.

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

        The Superior Court's conclusion that the trial court did not err by refusing to strike
the jurors for cause rendered moot the Shinals' "exhaustion of challenges" argument.
Thus, the court's finding of waiver is a classic example of obiter dicta. Because this
Court also holds that the trial court did not err by refusing to strike the jurors for cause,I


believe the Court simply should refrain from commenting on the Superior Court's
gratuitous finding of waiver.




                              [J-106-2016] [MO: Wecht, J.]      -   8
                                      Ill. Conclusion

         Because the Superior Court properly affirmed the trial court's judgment entered

in   favor of Dr. Toms, would affirm its judgment.
                       I




         Chief Justice Saylor joins this dissenting opinion and Justice Mundy joins Part   I




of this dissenting opinion.




                              [J-106-2016] [MO: Wecht, J.]   -   9
