                                      [J-106-2016]
                       IN THE SUPREME COURT OF PENNSYLVANIA
                                    MIDDLE DISTRICT

   SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.


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

      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 II(A)(2). Justice Mundy joins Part 11(A) of the opinion
       in full.


                                        OPINION


JUSTICE WECHT                                          DECIDED: June 20, 2017
       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




                                     [J-106-2016]   -   2
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
       This form acknowledged that Mrs. Shinal gave Dr. Toms permission to perform
"a resection of recurrent craniopharyngioma," and identified the risks of the surgery as
including "pain, scarring, bleeding, infection, breathing problems, heart attack, stroke,
injury and death." Tr. Ct. Op. at 4. The form also represented that Mrs. Shinal had
discussed the "advantages and disadvantages of alternative treatments," that "[t]his
(continued...)


                                             [J-106-2016]   -   3
       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'



(... continued)
form has been fully explained to me," that Mrs. Shinal understood the form's contents,
that Mrs. Shinal had the opportunity to ask questions, and that Mrs. Shinal had sufficient
information to give her informed consent to the operation. Id. The form did not purport
to address the specific risks of total versus subtotal resection.
2
      The Medical Care Availability and Reduction of Error (MCARE) Act defines
informed consent 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
(continued...)


                                      [J-106-2016]   -   4
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


(... continued)
        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).

40 Pa.C.S. § 1303.504.




                                        [J-106-2016]   -   5
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., 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.   Assoc. of Internal Medicine, 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 of a prospective juror

based upon the juror's perception of the financial impact the verdict could have on his

employer, the parent company of a named defendant).                   The Shinals invoked Cordes

and moved for the disqualification for cause of any juror employed by any Geisinger

entity. The trial court denied this motion, concluding that Cordes did not require per se

disqualification based upon an employment relationship with a non-party Geisinger

entity.    Rather, the trial court undertook to inquire into whether "prospective jurors or

their close family members have a close financial or situational relationship which may

give rise to an appearance or prospect of partiality or bias," and stated that it would

"consider whether to disqualify such prospective jurors" on an individual basis.                R.R.

178a.

          On April 15, 2014, the trial court began a second attempt at jury selection. The

trial court informed the parties that each had four peremptory strikes to use on the main

jury panel and one to use for the alternate jurors.         In   accord with its April 8, 2014 order,




                                         [J-106-2016]   -   6
the trial court conducted an individualized inquiry of all prospective jurors, asking

whether the juror or his/her close family members (1) knew, or had been patients of, Dr.

Toms; (2) were employed by a Geisinger entity; (3) if employed by a Geisinger entity,

whether the prospective juror perceived that entity to be the same entity employing Dr.

Toms; and, if so, (4) whether the prospective juror perceived that a verdict against Dr.

Toms would have an adverse financial impact upon that Geisinger entity. The trial court

also asked each juror whether he or she could render a fair and impartial verdict.

          During voir dire, the Shinals moved to strike the following prospective jurors for

cause, asserting that they or their immediate family member's close financial or

situational relationships should cause the court to presume prejudice: Linda M. Woll,

Denny Ackley, Louise A. Schiffino, and W. Stephen Nagle, an alternate juror. Woll was

an administrative secretary at the Geisinger sleep labs. Ackley's wife worked for thirty-

five years as an administrative assistant in a pediatrics department for a Geisinger

entity.    Schiffino was a customer service representative for Geisinger Health Plan.

Nagle was a retired physician assistant who had previously worked at a Geisinger

entity, but never in Dr. Toms' department. Additionally, Nagle's son worked as a night

security officer for a Geisinger entity.

          All of the four prospective jurors indicated that they believed they would be fair

and impartial, that they did not personally know Dr. Toms, that Dr. Toms did not

medically treat them or their close family members, and that they did not believe that a

verdict against Dr. Toms would negatively impact their employer or their close family

member's employer. The trial court therefore denied the Shinals' motion to dismiss

these prospective jurors for cause, finding that the relationships presented were more

attenuated than those at issue in Cordes, and that the jurors' assurances of impartiality

rendered them fit to serve on the jury. Accordingly, the Shinals exercised three of their




                                       [J-106-2016]   -   7
four peremptory challenges to excuse Woll, Ackley, and Schiffino from the main jury

panel,3 and exercised their sole peremptory challenge for the alternate jurors on Nagle.

       Following the presentation of evidence, the trial court instructed the jury with

regard to Dr. Toms' duty to obtain informed consent from Mrs. Shinal as follows: "[I]n

considering whether [Dr. Toms] provided consent to [Mrs. Shinal], you may consider

any relevant information you find was communicated to [Mrs. Shinal] by any qualified

person acting as an assistant to [Dr. Toms]." R.R. 673a. During deliberations, the jury

asked the court whether information conveyed by physician assistants could satisfy

informed consent requirements.     In   response, the trial court essentially repeated its prior

instruction. R.R. 693a.

       On April 21, 2014, the jury returned a verdict in favor of Dr. Toms. On May 1,

2014, the Shinals moved for post -trial relief, asserting two claims of error that are

relevant to this appeal.   First, the Shinals asserted that the trial court erred in failing to

strike for cause Woll, Ackley, Schiffino, and Nagle because of their employment, or

employment of close family members, with a Geisinger entity.             Second, the Shinals

argued that the trial court erred in its informed consent jury instructions. Specifically,

the Shinals asserted that the trial court improperly instructed the jury that the jury could

consider any relevant information communicated to Mrs. Shinal by any qualified person

acting as an assistant to Dr. Toms. The trial court denied post -trial relief.

       The Shinals appealed to the Superior Court, which affirmed. The Superior Court

first addressed whether the trial court should have stricken Woll, Ackley, Schiffino, and

Nagle for cause.     According to the Shinals, the trial court should have presumed

prejudice based upon the four prospective jurors' financial and situational relationships

3
      Additionally, the Shinals used their sole remaining peremptory challenge on a
prospective juror who worked as a healthcare consultant.




                                        [J-106-2016]   -   8
with Geisinger entities.   In   support of their argument of trial court error, the Shinals

asserted that the trial court's failure to excuse the four prospective jurors for cause

forced the Shinals to exercise and exhaust their peremptory challenges on those jurors,

leaving them unable to strike other jurors whom the Shinals believed might be biased in

favor of Dr. Toms.

       The Superior Court rejected this argument.             The Superior Court observed that

the Shinals' argument was premised upon Cordes, and that the trial court endeavored

to comply with Cordes during jury selection.       However, the Superior Court held that

Cordes was not binding precedent because no opinion garnered a majority of the court

in that case.   Instead, the Superior Court relied upon McHugh            v.   Proctor & Gamble

Paper Products Co., which established that the trial court should presume a likelihood of

prejudice based upon "a close relationship, familial, financial, or situational, with the

parties, counsel, victims or witnesses."        776 A.2d 266, 270 (Pa. Super. 2001).

Engaging in an independent review of the record, the Superior Court found that none of

the challenged prospective jurors had such a close relationship with the litigants.

Rather, the Shinals premised their assertion of prejudice upon situational relationships

with Dr. Toms' employer, a non-party. The Superior Court declined to expand the range

of disqualifying relationships beyond those recognized in McHugh.4

       The Superior Court also rejected the Shinals' assertion that, because they were

forced to exhaust their peremptory challenges, they were unable to remove seated

jurors whom the Shinals believed to be biased in favor of Dr. Toms due to their own

situational relationships with Geisinger.    According to the Superior Court, the Shinals

waived this argument by failing to make a timely, specific objection to the trial court that

4
       Judge Lazarus dissented, for the reasons expressed by the two plurality opinions
in support of reversal in Cordes.




                                       [J-106-2016]   -   9
they had too few peremptory challenges, and by failing to request additional peremptory

challenges. The Superior Court acknowledged that the Shinals raised this objection in

their pretrial motion to strike, at a time when Geisinger Medical Center and the

Geisinger Clinic were defendants. However, the Superior Court held that the Shinals

nevertheless waived this claim by failing to renew their motion to strike following the

dismissal of the Geisinger entities.

         The Superior Court further rejected the Shinals' argument that the trial court's

informed consent charge, which permitted the jury to consider information provided by

Dr. Toms' physician assistant to Mrs. Shinal, was erroneous and prejudicial.           The

Superior Court relied upon two of its prior cases to opine that information communicated

to a patient for purposes of obtaining informed consent may be conveyed by a qualified

professional acting under the attending doctor's supervision.5

                                            II.   Discussion
         A. Juror Challenge For Cause

         The first issue before us is whether the Shinals were entitled to strike for cause

prospective jurors with familial, situational, or financial relationships with Dr. Toms'

employer, whether direct or indirect, when Dr. Toms' allegedly tortious conduct occurred

in the   course of his employment.        First, we define our relevant standard of review.

Then, we apply that standard to the facts presented.

                1.   Standard of Review

         According to the Shinals, the denial of a for -cause challenge premised upon a

juror's close familial, financial, or situational relationship with the parties, counsel,

victims, or witnesses, raises a question of law, as to which our standard of review is de


5    See Foflygen v. Allegheny General Hosp., 723 A.2d 705 (Pa. Super. 1999);
Bulman v. Myers, 467 A.2d 1353 (Pa. Super. 1983).




                                       [J-106-2016]   -   10
novo and our scope of review plenary.                  McHugh, 776 A.2d at 270. Dr. Toms differs,

asserting that disqualification of a juror for cause is a decision for the trial court, which

will not be reversed absent a palpable abuse of discretion.               Commonwealth    v.   Briggs,

12 A.3d 291, 332-33 (Pa. 2011); Commonwealth v. Stevens, 739 A.2d 507, 521 (Pa.

1999).

             "One of the most essential elements of a successful jury trial is an impartial jury."

Bruckshaw             v.   Frankford Hosp. of City of Phila., 58 A.3d 102, 109 (Pa. 2012); see

Colosimo         v.   Pa. Elec. Co., 518 A.2d 1206, 1209 (Pa. 1986). We protect that impartiality

through the voir dire process, vetting potential jurors to discern bias or relationships to

the parties, lawyers, or matters involved. Bruckshaw, 58 A.3d at 110; Commonwealth                  v.

Marrero, 687 A.2d 1102, 1107 (Pa. 1996) ("The purpose of voir dire is to ensure the

empaneling of a fair and impartial jury capable of following the instructions of the trial

court."); Colosimo, 518 A.2d at 1209; see Pa.R.C.P. 220.1-221 (pertaining to voir dire

and the use of peremptory challenges). Importantly, it is not simply the fact of partiality,

but also the appearance of partiality or bias, that the trial court must consider.                See

Commonwealth                v.   Stewart, 295 A.2d 303, 306 (Pa. 1972) (quoting In re Murchison, 349

U.S. 133, 136 (1955) ("[O]ur system of law has always endeavored to prevent even the

probability of unfairness.")).6

             Challenges for cause are essential means by which to obtain a jury that in all

respects is impartial, unbiased, free from prejudice, and capable of judging a case



6
       Accord Seeherman v. Wilkes-Barre Co., 99 A, 174, 176 (Pa. 1916) ("It [is]
certainly desirable that the cause should be tried by persons free even from the
suspicion of partiality."); Hufnagle v. Del. & Hudson Canal Co., 76 A. 205, 206 (Pa.
1910) ("[N]o person should be permitted to serve on a jury who stands in any relation to
a party to the cause that would carry with it prima facie evident marks of suspicion of
favor.   .." (internal quotation marks omitted)).
             .




                                                 [J-106-2016]   - 11
based solely upon the facts presented and the governing law. At the trial of Aaron Burr,

Chief Justice John Marshall explained the principle:

      Why is it that the most distant relative of a party cannot serve upon his
      jury? Certainly the single circumstance of relationship, taken in itself,
      unconnected with its consequences, would furnish no objection. The real
      reason of the rule is, that the law suspects the relative of partiality;
      suspects his mind to be under a bias, which will prevent his fairly hearing
      and fairly deciding on the testimony which may be offered to him. The end
      to be obtained is an impartial jury; to secure this end, a man is prohibited
      from serving on it whose connexion with a party is such as to induce a
      suspicion of partiality. The relationship may be remote; the person may
      never have seen the party; he may declare that he feels no prejudice in
      the case; and yet the law cautiously incapacitates him from serving on the
      jury because it suspects prejudice, because in general persons in a similar
      situation would feel prejudice.
United States   v.   Burr, 25 Fed. Cas. 49, 50 (C.C. D.Va. 1807).

      At common law, for -cause challenges were divided into four classes: "Propter

honoris respectum, out of respect of rank or honor; propter defectum, on account of

some defect; propter delictum, on account of crime; and propter affectum, on account of

affection or prejudice." Butler    v.   Greensboro Fire Ins. Co., 145 S.E. 3, 4 (N.C. 1928)

(emphasis added).' Challenges propter affectum operated to bar the seating of a juror

employed by a party to the litigation due to the appearance of partiality arising from the

party's potential control over the juror. See Cummings           v.   Gann, 52 Pa. 484, 487 (1866)

("All the authorities seem to be, that where the objection is not on account of

relationship, to require it to be shown as a ground of principal challenge propter




       See also Harrisburg Bank v. Forster, 1839 WL 3578, at *3 (Pa. 1839) (identifying
the four common-law classes of for -cause challenges); Commonwealth v. Lesher, 1827
WL 2776, at *7 (Pa. 1827) (same).




                                         [J-106-2016]   -   12
affectum, as between the party and juror, that the former holds a position in which he

might exercise a control over the latter.").9 As this Court explained long ago:

       The law, in every case, is scrupulous to prevent even the possibility of
       undue bias; it does not deal with a juror as with a witness; admit him,
       though it doubts him; the slightest ground of prejudice is sufficient. The
       prejudice itself need not be made out; the probability of it is enough. One
       related, though by marriage only, as remotely as the ninth degree, to the
       defendant or the prosecutor, may be challenged off the jury for that cause.
       Any one, who, in any possible way, no matter how honestly, has been
       warped by any preconceived opinion which may affect his verdict, or has
       made up his mind what verdict he is to give, and declared it, is excluded.
       Nothing in the law can well be more extensive than this right of challenge
       propter affectum.
Lesher, 1827 WL 2776, at *2.9


8
       See also Harrisburg Bank, 1839 WL 3578, at *3 ("A juror ought not to stand in
any relation to the party, arising either from contract or otherwise, that would carry with
it prima facie evident marks of suspicion of favor."); Hufnagle v. Del. & Hudson Canal
Co., 1902 WL 4348, at *1 (Pa. Com. Pl. 1902) ("Jurors may be challenged propter
affectum, for suspicion of bias or partiality. This may be either a principal challenge or to
the favour. A principal challenge is such where the cause assigned carries with it prima
facie evident marks of suspicion either of malice or favour: as that he is the party's
master servant, counsellor, steward or attorney." (quoting Sir William Blackstone, 3
Comm. 363)).
9
        See also In United States v. Polichemi, 201 F.3d 858, 864 (7th Cir. 2000) ("From
that time to the present, the federal courts have included among the reasons supporting
a challenge for cause the kinds of presumptive sources of bias to which the Chief
Justice referred [in Burr]."); United States v. Torres, 128 F.3d 38, 43 (2d Cir. 1997)
(recognizing three possible grounds for challenges for cause: those based upon actual
bias, those based upon implied bias, and those based upon "inferable" bias); United
States v. Nell, 526 F.2d 1223, 1229 (5th Cir. 1976) ("Actual bias can come to light
during voir dire in two ways: by express admission or by proof of specific facts showing
such a close connection to the circumstances at hand that bias must be presumed.");
United States v. Dellinger, 472 F.2d 340, 367-69 (7th Cir. 1972) (noting that prospective
jurors may be unacceptably biased for a variety of reasons, and, because they
themselves are often unaware of these actual biases, it is essential to explore their
backgrounds and attitudes in order to uncover them); United States v. Haynes, 398 F.2d
980, 984 (2d Cir. 1968) ("At common law, jurors were challengeable on principle for bias
for partiality due to kinship, interest, former jury service in the same cause, or because
the prospective juror was a master, servant, counselor, steward, or of the same society
or corporation .   .   .Not only have these common law grounds for causal challenge
                           .


(continued...)


                                     [J-106-2016]   -   13
        As a general matter, the test for determining whether a prospective juror is

disqualified is "whether he or she 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." Commonwealth                  v.   Colson, 490 A.2d

811, 818 (Pa. 1985).10 The trial judge must determine whether the juror is able to put

aside any biases or prejudices upon proper instruction from the court. Commonwealth

v.   Bridges, 757 A.2d 859, 873 (Pa. 2001); Colson, 490 A.2d at 818; Commonwealth                 v.

Drew, 459 A.2d 318 (Pa. 1983).

        Generally, "[t]he decision on whether to disqualify is within the discretion of the

trial court and will not be reversed in the absence of a palpable abuse of discretion."

Commonwealth        v.   Koehler, 737 A.2d 225, 238 (Pa. 1999) (quoting Commonwealth              v.

Wilson, 672 A.2d 293, 299 (Pa. 1996)); see Colson, 490 A.2d at 818; Commonwealth v.

Black, 376 A.2d 627 (Pa. 1977).                However, we have required the trial court to grant a

challenge for cause in two scenarios:               "when the prospective juror has such a close

relationship, familial, financial, or situational, with the parties, counsel, victims, or

witnesses" or, alternatively, when the juror "demonstrates a likelihood of prejudice by his

or her conduct and answers to questions." Bridges, 757 A.2d at 873; see Wilson, 672

A.2d at 299; Colson, 490 A.2d at 818.

        A challenge of a prospective juror for cause may invoke bias that is either implied

or actual.        Implied bias is presumed as a matter of law based upon special

(... continued)
retained their vitality,   .   .   .   but to them have been added others from which prejudice or
bias may be implied.").
10
       See Commonwealth v. Bridges, 757 A.2d 859 (Pa. 2001); Commonwealth v.
Wilson, 672 A.2d 293 (Pa. 1996); Commonwealth v. Bighum, 307 A.2d 255 (Pa. 1973);
Commonwealth v. Gelfi, 128 A. 77 (Pa. 1925); Commonwealth v. Minney, 65 A. 31, 32
(Pa. 1906); Commonwealth v. Eagan, 42 A. 374 (Pa. 1899).




                                               [J-106-2016]   -   14
circumstances, and "is attributable in law to the prospective juror regardless of actual

partiality." United States    v.   Wood, 299 U.S. 123, 134 (1936).11 In such circumstances,

we do not inquire into whether the juror is capable of being objective and rendering a

fair and impartial decision.         Rather, we require disqualification to avoid the mere

appearance of partiality.12

       The Superior Court has explained that the standard of appellate review differs

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

actual, as revealed by the juror through his or her conduct and answers.          In   the first

scenario, where the presumption of prejudice arises from a prospective juror's close

relationship with the parties, counsel, victims, or witnesses, the Superior Court has

reviewed the trial court's determination as a question of law, subject to de novo review.

Cordes, 87 A.3d at 834 (015R, Wecht, J.); id. at 865 (015R, Donohue, J.); McHugh, 776

A.2d at 270 & n.3 (holding that "the employer/employee relationship evokes a


11
        The same rationale compels the disqualification of a judge when the appearance
of partiality in favor of one party over the other is too great for the law to tolerate. See,
e.g., In the Interest of McFall, 617 A.2d 707, 713 (Pa. 1992) ("Recusal is required
wherever there is substantial doubt as to the jurist's ability to preside impartially.");
Cordes, 87 A.3d at 864, n.2 (015R, Donohue, J.).
12
        this context, the United States Supreme Court has explained the concept of
       In
presumed prejudice, or implied bias, as follows:

       Bias or prejudice is such an elusive condition of the mind that it is most
       difficult, if not impossible, to always recognize its existence, and it might
       exist in the mind of one (on account of his relations with one of the parties)
       who was quite positive that he had no bias, and said that he was perfectly
       able to decide the question wholly uninfluenced by anything but the
       evidence. The law therefore most wisely says that, with regard to some of
       the relations which may exist between the juror and one of the parties,
       bias is implied, and evidence of its actual existence need not be given.

Crawford    v.   United States, 212 U.S. 183, 196 (1909).




                                         [J-106-2016]   -   15
presumption of prejudice so significant as to warrant disqualification of employees of a

party" as a matter of law, and overturning the trial court's refusal to dismiss for cause).

By contrast, in the second scenario, where a juror's prejudice is revealed through his or

her conduct or answers, the Superior Court has applied a deferential standard of

review, reversing only when the trial court has abused its discretion. McHugh, 776 A.2d

at 270.

          We agree with the Superior Court's distinction.          Our review of a trial court's

decision to disqualify a juror based upon that juror's relationship with the parties,

counsel, victims, or witnesses depends upon whether the relationship is sufficiently

close that we presume the likelihood of prejudice under the first scenario, or whether the

juror reveals a likelihood of prejudice through conduct and answers to questions under

the second scenario.        In   the first scenario, we will presume prejudice for the purpose of

ensuring fairness and will review the trial court's determination for an error of law. See

Briggs, 12 A.3d at 333 (examining whether to presume prejudice due to relationships

between three prospective jurors and the victims or their families).13          Our review of a

question of law is de novo, and the scope of our review is plenary. Bowling           v.   Office of

Open Records, 75 A.3d 453, 466 (Pa. 2013).

          In   the second scenario, where the juror's conduct or answers to questions reveal

a likelihood of prejudice, we agree with the Superior Court that "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." McHugh, 776 A.2d


13
       See also Commonwealth v. Jones, 383 A.2d 874, 877 (Pa. 1978) (holding that a
police officer who has a "real relationship" to a criminal case must be excluded from
serving on the jury because of the probability that prejudice will result); Stewart, 295
A.2d at 306 ("presuming prejudice for the sake of insured fairness" where a prospective
juror was the father of the victim).




                                           [J-106-2016]   -   16
at 270 (quoting Commonwealth v. Johnson, 445 A.2d 509, 512 (Pa. Super. 1982)).14

We defer to the trial judge because it is he or she that observes the juror's conduct and

hears the juror's answers:

        [T]he juror appears before [the trial judge, who] sees him and hears what
        is said; and is able to form his opinion as much from the proposed juror's
        conduct as from the words which he utters, printed in the record.
        Hesitation, doubt, and nervousness indicating an unsettled frame of mind,
        with other matters, within the judge's view and hearing, but which it is
        impossible to place in the record, must be considered. As it is not
        possible to bring these matters to our attention, the trial judge's view
        should be given great weight in determining the matters before him.
Gelfi, 128 A. at 79.

        As the Superior Court has observed, these two scenarios are not mutually

exclusive.   Johnson, 445 A.2d at 512.     A juror may indicate through questioning an

inability to be impartial because of a particular relationship with someone involved in the

case.   Id. When a determination of a juror's ability to be impartial depends upon the

juror's answers and explanations, we afford the trial court's judgment much weight.

Hence, even in the context of presumed prejudice, the trial court retains discretion to

explore and assess the relevant relationship presented.       See, e.g., Schwarzbach v.

Dunn, 381 A.2d 1295, 1298 (Pa. Super. 1977) (granting a new trial due to a juror's

wife's unexplained employment relationship with counsel because the trial court did not

explore the relationship through questioning).

        Having established the relevant standard of review, we proceed now to consider

the parties' arguments in light of our precedents and the facts presented.



14
        See Commonwealth v. Colon, 299 A.2d 326, 328 (Pa. Super. 1972);
Commonwealth v. Gelfi, 128 A. 77, 79 (Pa. 1928) (when a for -cause challenge is based
upon the juror's answers and demeanor, "[n]othing short of a palpable abuse of
discretion justifies a reversal").




                                    [J-106-2016]   -   17
              2. Analysis

       We must resolve whether the trial court erred in determining that the particular

relationships implicated in this case were not so close as to require a presumption of

prejudice, and whether the prospective jurors' conduct and answers during voir dire

revealed their partiality.15 The purportedly disqualifying relationships presented by the

four prospective jurors arose because of the jurors' or their family members' past or

present employment relationships with a Geisinger entity owned by Geisinger Heath

System, where Dr. Toms was also employed by Geisinger Clinic, an entity owned by

Geisinger Health System.      The parties agree that these employment connections are

indirect familial, financial, or situational relationships, but disagree about whether they

are sufficiently close so as to require a presumption of prejudice. Whether to presume

prejudice is a question of law, as to which our review is de novo. However, where a

15
        We also granted review of the Superior Court's alternative holding that the
Shinals were required to object to the trial court that they had too few peremptory
challenges and, relatedly, that the Shinals were required to request additional
peremptory challenges.         It is undisputed that the Shinals raised their for -cause
challenges in their initial pretrial motion to strike. This motion remained pending before
the trial court following the dismissal of Geisinger Medical Center and Geisinger Clinic,
until the trial court acted on it on April 8, 2014. Once their for -cause challenges were
denied and the Shinals utilized their peremptory challenges, there was no need for a
separate objection that they had too few peremptory challenges. Such an objection
would have been redundant and pointless, as the trial court already had found no merit
to the Shinal's motion to excuse for cause, and the Shinals preserved their objection to
that decision.

        Moreover, it is error for the trial court to force a party to use his or her peremptory
challenges on a prospective juror whom the trial court should have excused for cause,
when that party exhausts those peremptory challenges prior to the seating of the jury.
Jones, 383 A.2d at 876; see also Commonwealth v. Moore, 340 A.2d 447 (Pa. 1975)
(holding that it was harmless error to refuse a for -cause challenge where the party used
a peremptory challenge to exclude the prospective juror but did not exhaust its
peremptory challenges). Having requested the trial court to disqualify certain jurors for
cause, and having exhausted their peremptory challenges, the Shinals have preserved
their claim of trial court error concerning denial of their for -cause challenges.




                                      [J-106-2016]   -   18
juror's partiality is arguably revealed through answers elicited during voir dire, we review

the trial court's decision for an abuse of discretion.

       The Shinals claim, as they have since the jury selection process began, that the

trial court improperly declined to strike for cause Woll, Ackley, Schiffino, and Nagle.

According to the Shinals, the indirect familial, financial, and situational employment

relationships presented by these jurors place this case squarely within the first scenario

articulated in Bridges, and require a presumption of prejudice.          Acknowledging that

Geisinger Medical Center and Geisinger Clinic had been dismissed from the case, the

Shinals argue that this is irrelevant because "Geisinger" nominally remained in the case.

The Shinals assert that every entity bearing the Geisinger name is part of the same

company, and that a claim against an employee of any Geisinger entity for actions

committed at work upon Geisinger property and proven by Geisinger witnesses and

Geisinger documents necessarily affects Geisinger. Appellant's Brief at 26. Therefore,

according to the Shinals, a verdict against Dr. Toms is a verdict against Geisinger

Health System, the ultimate employer of the four contested jurors or their family

members.

       Dr. Toms argues that the trial court was not required to presume prejudice

because of the jurors' remote, indirect relationships with Dr. Toms through non-party

Geisinger entities. Dr. Toms further maintains that the jurors' voir dire answers did not

indicate actual bias because the jurors stated that they did not believe their employers

would be financially impacted by a verdict against Dr. Toms. Although the Shinals focus

upon the first scenario articulated in Bridges, Dr. Toms asserts that the four jurors were

not subject to disqualification under either approach.        Both parties assert that Cordes

controls and supports their position. Although the trial court likewise considered Cordes

to be controlling and attempted to comply with the OISRs by employing a modified




                                      [J-106-2016]   -   19
version     of   then -Judge,   now -Justice   Donohue's        reasoning,   the   Superior    Court

disregarded Cordes as a non-precedential plurality opinion.

       The presumption of prejudice arises when a juror has a close familial, financial,

or situational relationship with a participant in the litigation (i.e., the parties, counsel,

victims, or witnesses).     See Bridges, 757 A.2d at 873. The mere existence of some

familial, financial, or situational relationship does not require dismissal in every case. "A

remote relationship to an involved party is not a basis for disqualification where a

prospective juror indicates during voir dire that he or she will not be prejudiced."

Colson, 490 A.2d at 818.

       In   determining whether a juror's relationship to the litigation is so sufficiently

close that it creates a presumption of prejudice, or so sufficiently remote that it does not,

we cannot ignore the suspicions, and the distrust of the resulting jury verdicts, that may

arise based upon the nature of the relationship.            Jurors should be above suspicion.

Close connections suggest bias due to the nature of the tie; if the relationship presents

the appearance of impropriety, prejudice is presumed.                 "The moment the fact of

relationship, favor, enmity, prejudice, bias, preconceived opinion, scruple, or interest of

a sufficient nature, is made out it removes the juror; nothing further is necessary." Gelfi,

128 A. at 78.      The presumption of prejudice and the risk of seating a juror with an

implied bias animate much of the precedent requiring the trial court to excuse a juror for

cause. Even if the juror believes himself or herself able to remain objective and to rule

without bias, the relationship may be so close that it appears biased.                    In   such

circumstances, the law errs on the side of removal in order to ensure the appearance of

an objective jury.

       We have required for -cause disqualification when the prospective juror has a

relationship to witnesses in a case. See, e.g., Jones, 383 A.2d at 877 (holding that a




                                        [J-106-2016]   -   20
police officer on active duty at the time of trial belonging to the same police force as the

testifying officers is disqualified).16      Additionally, the trial court must excuse a

prospective juror for cause if the juror is a stockholder in a corporation that has an

interest in the matter.    Seeherman, 99 A. at 175.          The weight of authority excludes

venirepersons who could be suspected of bias due to their business, professional,

familial, or social relationships with a participant to the litigation.17



16
         Accord Commonwealth v. Perry, 657 A.2d 989, 990-91 (Pa. Super. 1995)
(holding that the trial court erred in failing to presume prejudice where a juror testified
that he had a close personal friendship with the arresting and prosecuting officer and no
doubts about the officer's veracity); Commonwealth v. Fletcher, 369 A.2d 307, 308-09
(Pa. Super. 1976) (presuming prejudice and finding reversible error in the trial court's
failure to disqualify a juror in a robbery and assault case, where the juror was a police
officer, was a member of the same police department as the police witnesses, knew
three of those witnesses personally, knew the prosecutor trying the matter, and "had
experienced personal attacks during the course of performing his duties as a police
off icer" ).
17
         See Beam v. State, 400 S.E.2d 327, 328 (Ga. 1991) (holding that it was
reversible error to permit a full-time employee of the prosecuting agency's office to
serve as a juror because her service "created a substantial appearance of impropriety,"
and the trial court should have stricken this juror "to preserve public respect for the
integrity of the judicial process"); Gossett v State, 41 S.E.2d 308 (Ga. 1947) (holding
that it was reversible error not to disqualify jurors who held insurance policies from
companies employing and paying the attorney who assisted the solicitor general at
trial); State v. Kauhi, 948 P.2d 1036, 1040 (Haw. 1997) (applying "the appearance of
impropriety" or "implied bias" standard to hold that the trial court erred in declining to
excuse for cause a prosecutor currently employed in the same office of the prosecutor
trying the defendant, despite the juror's assertion of impartiality); Ward v
Commonwealth, 695 S.W.2d 404 (Ky. 1985) (recognizing that the trial court should have
sustained challenges for cause and excused jurors, regardless of their stated lack of
bias, where the challenge was premised upon familial relations between several
prospective jurors and the Commonwealth's attorney); State v. Lewis, 391 So.2d 1156,
1158 (La. 1980) ("If the revealed details of the relationship are such that bias or
prejudice may be reasonably implied, a juror may be properly refused for cause.");
Andry v. Cumis Ins. Soc., 387 So.2d 1374 (La. App. 4 Cir. 1980) (holding that the right
to an impartial jury may require the exclusion of jurors who are connected to the
litigation through an insurance company, particularly when the juror expresses the belief
that a verdict will affect the juror's own premiums).




                                       [J-106-2016]   - 21
            On the other hand, remote relationships should be scrutinized by the trial court in

order to elucidate the particulars and address the potential appearance of partiality.

Colson, supra at 818-19.          In   Koehler, 737 A.2d at 238, for example, the trial court

discovered during trial that a juror was related to the co-defendant's step -father through

her husband's sister. The juror assured the court that her familial relationship would not

affect her ability to be a fair and impartial juror. The trial court denied the defendant's

request to remove the juror and to replace her with an alternate. On appeal, this Court

affirmed, deferring to the trial court's finding that the juror's relationship with the co-

defendant was attenuated and that the concerns were ameliorated by the juror's

testimonial assertion of impartiality.        "Since it is the trial court that was in the best

position to assess the credibility of this juror,   .   .   .   and since a court may properly refuse

to excuse a juror when the trial judge believes that the juror would be fair and impartial,         .




.   .   we find no abuse of discretion in the refusal by the trial court to remove Juror Number

Six." Koehler, 737 A.2d at 238-39 (citations omitted); see also Briggs, 12 A.3d at 333-

34 (finding no basis in the prospective jurors' voir dire answers to reverse the trial

court's discretionary ruling declining to excuse for cause three jurors because of

attenuated relationships with the victims or their families).18

18
        See also Linsenmeyer v. Straits, 166 A.2d 18, 23 (Pa. 1960) (applying an abuse
of discretion standard to affirm the trial court's rejection of for -cause challenges made
because prospective jurors knew plaintiff's attorney and had prior legal relationships
with plaintiff's law firm); Commonwealth ex rel. Fletcher v. Cavell, 149 A.2d 434 (Pa.
1959) (finding no abuse of discretion in declining to excuse for cause a juror who was
son-in-law of a detective who investigated the crime or a juror who was a second cousin
once removed of the victim); Commonwealth v. Peronace, 195 A. 57, 59 (Pa. 1937)
(finding no abuse of discretion in declining to dismiss for cause relatives of the county
detective and political allies of the district attorney who indicated that they had no
opinion on the case); Commonwealth v. Blasioli, 685 A.2d 151, 158 (Pa. Super. 1996)
(holding that where the prosecutor's wife was a juror's family doctor, and the juror
worked at the same hospital as the prosecutor's wife, the relationship did not require a
presumption of prejudice, and deferring to the trial court's acceptance of the juror's
assertions during jury selection); Commonwealth v. Lee, 585 A.2d 1084 (Pa. Super.
(continued...)


                                          [J-106-2016]      -   22
       Few cases in our Commonwealth          have examined employment relationships

between jurors (or their family members) and corporate parties. However, Pennsylvania

law clearly holds that, where there is a direct employment relationship between a juror

and a party or participant, the courts must presume prejudice and the juror must be

stricken for cause. Hufnagle, 76 A. at 206; McHugh, 776 A.2d at 270        (;   Schwarzbach,

381 A.2d at 1297 (presuming prejudice and reversing the trial court's refusal to excuse

a juror whose wife had an uncertain          history of employment with the law firm

representing the plaintiff).

       McHugh illustrates the presumption of prejudice that results from a direct

employment relationship. There, plaintiff's counsel requested the trial court to strike, for

cause, all potential jurors employed by the corporate defendant, Proctor & Gamble.

McHugh, 776 A.2d at 268. The trial court denied the request. On appeal, the plaintiff

challenged the trial court's denial of the for -cause challenges.      The Superior Court

agreed with the plaintiff that the trial court committed an error of law. According to the

court, "the employer/employee relationship evokes a presumption of prejudice so

significant as to warrant disqualification of employees of a party."     Id. at 270.19   This


(... continued)
1991) (reviewing for an abuse of discretion the trial court's decision not to strike a
retired police officer for cause); Commonwealth v. Bright, 420 A.2d 714 (Pa. Super.
1980) (finding no abuse of discretion in declining to excuse a juror who lived in the
same neighborhood as the prosecuting attorney and had known him since he was a
child); Commonwealth v. Yohn, 414 A.2d 383 (Pa. Super. 1979) (upholding the trial
court's exercise of discretion where the trial court refused to disqualify a juror who had
been employed by the victim three or four years before the crime, or a juror who had
gone on a fishing trip six to eight years before the trial with a police officer who was the
superior of the prosecuting officer); Commonwealth v. Colon, 299 A.2d 326, 328 (Pa.
Super. 1972) (holding that law enforcement officers should only be removed for cause
when, in the trial court's discretion, their answers and demeanor on voir dire
demonstrate a likelihood for prejudice).
19
        As the McHugh court observed, precedent from other states supported its
holding. McHugh, 776 A.2d at 271; see also Merritt v. Evansville-Vanderburgh Sch.
(continued...)


                                     [J-106-2016]   -   23
conclusion flowed from the notion that a juror whose livelihood derives from a party

cannot be expected to render an impartial verdict in a case involving that party. Id. at

272.    We agree. A direct employment relationship, i.e., the relationship between an

employer and employee, is a close relationship that requires a presumption of prejudice.

        Cordes presented a number of more attenuated employment relationships.                In

Cordes, the Superior Court en banc examined, inter alia, the prospect of partiality or

bias arising from an indirect situational relationship between a juror (Richard Majors)

whose     employer,    Heritage   Valley   Health Systems,        owned a     named corporate

defendant, Tri-State Medical       Group, which was also the defendant physician's

employer.    In   addition to this indirect employment relationship, Majors revealed during

voir dire his belief that his employer had a financial interest in the outcome of the

litigation through its subsidiary, the corporate defendant, and his belief that he and the

defendant physician shared a common employer.                 The trial court declined to excuse

Majors for cause. Seven members of a nine -judge panel voted in favor of reversal, but

neither of the two lead opinions succeeded in garnering the votes of a majority of the

judges.




(... continued)
Corp., 735 N.E.2d 269 (Ind. Ct. App. 2000) (holding that the trial court should have
granted plaintiff's challenges for cause to two employees of defendant corporation);
Hutchins v. DCH Reg'l Med. Ctr., 770 So.2d 49 (Ala. 2000) (holding that the trial court
had no discretion to deny plaintiff's challenges for cause directed toward two
prospective jurors who were employees of the defendant); People v. Rhodus, 870 P.2d
470 (Colo. 1994) (citing a statute which provides that a trial court must sustain a
challenge for cause on the ground that a juror is an employee of a party); Metropolitan
Dade County v. Frank J. Rooney, Inc., 627 So.2d 1248 (Fla. Dist. Ct. App. 1993)
(holding that the trial court erred by failing to disqualify an employee of defendant
county); Carle v. McChord Credit Union, 827 P.2d 1070 (Wash. Ct. App. 1992) (holding
that the trial court did not abuse its discretion by excusing a prospective juror for cause
on the challenge by the employee plaintiff on the basis of implied bias).




                                      [J-106-2016]   -   24
       This author opined, inter alia, that indirect relationships between a juror and a

party "may furnish a basis for per se exclusion." Cordes, 87 A.3d at 838 (OISR, Wecht,

J.). Although Majors was not employed by a named defendant, this author opined that

his bias was implicit because "he was employed by an entity that he believed loomed

over himself and the other defendants." Id. at 845. This author recognized that Majors'

bias was made explicit by his recognition that his employer had "an undisputed financial

interest in the outcome of the litigation."   Id.   The employment relationship, viewed "in

tandem" with Majors' recognition regarding his employer's financial interest, id. at 845

n.12, "created a sufficient risk of partiality to establish prejudice per se arising from his

jury service." Id. at 845.

       Also writing in support of reversal, now-Justice, then -Judge Donohue agreed that

an indirect relationship could require disqualification, but did not believe that the court

could presume prejudice from Majors' employer's ownership interest in a named

corporate defendant: "The purported employment relationship between Juror Majors

and Dr. Ray, standing alone, is too attenuated to warrant the grant of a challenge for

cause in this case."    Id. at 869 (OISR, Donohue, J.).      According to Justice Donohue,

Majors should have been disqualified due to his "perception of the financial impact the

verdict could have on his employer." Id. at 869-70 (OISR, Donohue, J.).

       Hence, the two OISRs in Cordes differed as to whether Majors' connection to the

case through his employer was sufficiently close as to warrant a presumption of

prejudice. However, the two opinions agreed that the voir dire of Majors revealed actual

bias; specifically, Majors' belief that his employer had a pecuniary interest in the

outcome of the case.

       We agree with the convergence of the OISRs in Cordes. An indirect employment

relationship with an employer that has an ownership interest in a party defendant,




                                     [J-106-2016] - 25
standing alone, does not warrant a presumption of prejudice.         However, a juror may

reveal a likelihood of prejudice resulting from such an indirect employment relationship

through his or her conduct or answers to questions. Because the law endeavors to hold

the jury system free from any appearance of partiality, it is incumbent upon trial courts

to explore specific, indirect employment relationships between jurors (and their close

family members) and parties, and to be vigilant in guarding against the appearance of

partiality that can arise in the context of such relationships.2° An indirect employment

relationship will require removing a potential juror for cause if the juror believes that the

outcome of the case could have a financial impact upon his or her employer. When it is

apparent both that there is a common employer between a juror or a juror's close family

member and a party defendant, and that the juror believes that the employer would be

affected by the outcome of the case, the trial court must remove the juror for cause.21

20
       In  this regard, we caution that when a prospective juror is challenged because of
a familial, financial, or situational relationship to case participants, and the trial court
explores the nature of this relationship, the trial court should not accept automatically
the juror's assertions of impartiality. A juror may not be aware of, or recognize, his or
her own prejudice. Trial courts are best positioned to recognize a juror's potential
sources of prejudice and partiality as they exist at the time of voir dire and as they may
arise during the litigation, and to delve into the reasons for the juror's answers. Notably,
despite Majors' views that he shared an employer with a party and believed his
employer would be economically harmed by an adverse verdict, he nonetheless
professed to the court that he could rule impartially. Cordes, 87 A.3d at 844 (OISR,
Wecht, J.).
21
        Neither the parties nor the lower courts dispute that a juror's disqualification for
cause could result from an immediate family member's close familial, financial, or
situational relationship to a case party or participant, or that Ackley and Nagle present
the type of relationship with their wife and son, respectively, that could warrant a
presumption of prejudice if the wife's or son's relationship to the case was sufficiently
close. Rather, the parties and lower courts focused upon whether the juror or their
family member's employment relationship was sufficiently close to the parties to require
a presumption of prejudice. We recognize the two OISRs in Cordes differ on the degree
to which a juror's family member's connection to the case will impact the analysis. See
Cordes, 87 A.3d at 843 (Wecht, J., OISR) ("But the bonds between parent and child,
and husband and wife, are too strong, and the attendant interests too inextricably
(continued...)


                                     [J-106-2016] - 26
        This case presents several indirect employment relationships that are more

attenuated than the indirect employment relationship in Cordes. Majors' connection to

the defendant in Cordes was through his employer, which owned one defendant and

employed another. The four jurors at issue in today's case were two or three degrees

removed from the scenario presented by Majors in Cordes, as they or their close family

members were employed by companies owned by the same parent company that

owned Dr. Toms' employer.        Unlike in Cordes, none of the corporate subsidiaries are

parties.    Neither Geisinger Health System nor Geisinger Clinic were trial defendants.

Dr. Toms was the only defendant.       None of the jurors knew Dr. Toms.Further, as the

trial court developed during voir dire, none of the jurors worked directly for Dr. Toms'

employer, Geisinger Clinic, or at the facility where Mrs. Shinal's surgery was performed,

Geisinger Medical Center.     Nor was there any indication that the non-party Geisinger

employers had a financial stake in the outcome of the litigation.     In   particular,   Woll

was employed as "an admin secretary for the sleep labs," R.R. 246a, which was in turn

owned      by Geisinger Health    System, which also owned Geisinger Clinic, which

employed Dr. Toms.          Ackley was connected through his wife, who worked for "Dr.

Ryan in pediatrics," R.R. 250a -51a, and was therefore employed by a Geisinger entity

owned by Geisinger Health System, which, again, also owned Geisinger Clinic, which


(... continued)
intertwined, to allow us to draw the distinction between direct and vicarious clinical
relationships that we would require in order to affirm the trial court's decision."); id. at
867-68 (Donohue, J., OISR) (explaining that the presumption of prejudice is warranted
under principles recognizing the special bond between spouses, but is not based upon
"the simple fact that the juror's parents were patients of the defendant doctor in this
medical malpractice case..."). However, because we find that Ackley's wife and
Nagle's son did not have a disqualifying employment relationship to the parties,
counsel, victims, or witnesses, see Bridges, 757 A.2d at 873, we do not resolve here
whether a juror's filial or parental connection to the case, standing alone, would
disqualify the juror.




                                     [J-106-2016]   -   27
employed Dr. Toms. Schiffino was employed as a customer service representative for

Geisinger Health Plan, R.R. 271a -72a, 353a, which was owned by Geisinger Health

System, which, again, also owned Geisinger Clinic, which employed Dr. Toms. Finally,

alternate juror Nagle was retired from employment as a physician assistant in plastic

surgery and gastrointestinal medicine, for an entity owned by Geisinger Health System,

which also owned Geisinger Clinic, which employed Dr. Toms. Nagle additionally was

connected through his son, who worked as a security officer at "Geisinger." R.R. 309a-

11a.   It is   not clear whether Nagle's son worked directly for Geisinger Heath System or

a Geisinger entity owned by Geisinger Health System, which of course also owned

Geisinger Clinic, which employed Dr. Toms.

        Facially, the indirect familial, financial, or situational relationships presented by

these four jurors are not akin to the close relationships as to which we have presumed

prejudice in the past.       The respective relationships between Dr. Toms and Woll,

Schiffino, or Nagle, through their current or former non-party employer's parent

company, or between Ackley or Nagle through, respectively, their wife's or son's non-

party employer's parent company, were indirect, and             not sufficiently close so as to

require a presumption of prejudice as a matter of law.

        Because this case presents an indirect employment relationship, it was

incumbent upon the trial court to engage the jurors in questioning to reveal whether they

believed that their or their family member's current or former employer would be

financially harmed by an adverse verdict or whether the relationship would affect the

jurors' respective abilities to be impartial.   In   assessing the trial court's acceptance of

the juror's answers, we apply a deferential standard of review and will reverse the trial

court upon a palpable abuse of discretion. Koehler, 737 A.2d at 238.




                                       [J-106-2016]    -   28
       Relying upon Justice Donohue's OISR in Cordes, the trial court asked the jurors

whether they believed that they, or their family members, and Dr. Toms were employed

by the same company, and whether they or their family members' employer would be

financially affected by the litigation.     None of the jurors believed that a verdict against

Dr. Toms would         financially impact their employer or a family member's employer, and

each stated that he or she could act impartially. In particular, the trial court asked Woll if

she perceived that she and Dr. Toms were employed by the same company.                            Woll

responded that she and Dr. Toms "don't even work in the same building."                   R.R. 246a.

Woll further responded that she did not believe that a verdict against Dr. Toms would

have a negative financial impact on her employer, and she averred that she could be

fair and impartial. Id. at 247a.22




22
       On this point, Woll answered as follows:

       Q.        Do you perceive that you and Dr. Toms are employed by the same
       company?
       A.        I   don't even work in the same building as he does.
       Q.        What is the answer?
       A.        I   don't work in the same building as he does.
       Q.            want to know what your perception is?
                                                                                          -
                 I




       A.        It's a big umbrella. Yes, we do work for the same company but
       Q.        Do you believe that if there happened to be a verdict against Dr.
       Toms in this case, that it would negatively financially affect your
       employer?
       A.        Probably not.
       Q.        Why?
       A.    There is malpractice insurance and              I   can't see that it would affect
       Geisinger financially, nothing ever does.
       Q.        I'm curious why do you say nothing                  ever financially impacts
       Geisinger. Why do you say that?
(continued...)


                                          [J-106-2016]   -   29
      Ackley believed that his wife and Dr. Toms were employed by the same

company.    R.R. 251a ("They do work for the same company.").               Given this belief, the

trial court asked whether Ackley believed that a negative verdict against Dr. Toms would

have an adverse effect upon his wife's employer.             Id. Ackley initially indicated that he

did not know how to answer. Id. Upon further inquiry, Ackley indicated that there would

be no negative financial impact upon his wife's employer, and that he was able to be fair

and impartial. Id. 251-52a.23

(... continued)
        A.      If they had to rename Danville it would be Geisingerville, probably
        60% to 80% of the people who live here are employed at Geisinger in one
        way or another.
R.R. 246a -47a.
23
      Ackley was examined as follows:

      Q.    My question is, do you perceive that your wife and Dr. Toms are
      employed by different companies or the same?
      A.         I'm sorry. They do work for the same company.
      Q.    Given your perception that they work for the same company, do
      you perceive that a negative verdict against Dr. Toms in this case, if that is
      what a Jury chose to do, could negatively financially impact your wife's
      employer?
      A.         I   really don't know how to answer that question.
      Q.    Let me see if can come up with a different way to ask it. If there is
                                 I


      a negative verdict against Dr. Toms, do you believe that it would cost Dr.
      Toms' employer money?
      A.         Well, yeah.
      Q.     Do you regard Dr. Toms as being employed by the same company
      as your wife?
      A.         Yes.
      Q.         So do you think that there would be a negative financial impact on
      your wife's employer if there were a negative verdict against Dr. Toms in
      this case?
      A.         I   would say no.
      Q.         No affect?
(continued...)


                                         [J-106-2016]   -   30
       Although Schiffino initially was confused by the trial court's questions, she did not

believe that she and Dr. Toms were employed by the same employer, R.R. 272a, and

did not believe that a negative verdict against Dr. Toms would have a negative financial

impact upon her employer.          /d.24


(... continued)
        A.      No.
       Q.        No impact on your wife's employer?
       A.        No.
       Q.     In this case, given your wife's employment at Geisinger, and any
       other connection you have with Geisinger, being you are a patient there or
       have been a patient there or anything else, would you be unable in this
       case to be a fair and impartial juror?
       A.        No.
R.R. 251a -52a.
24
       The trial court questioned Schiffino as follows:

       Q.        Do you perceive yourself and Dr. Toms to be employed by the
       same company?
       A.        Well, it's Geisinger Health System. It's not a separate company but
       it is part of the same umbrella,     guess.
                                             I




       Q.    Would you perceive that if a Jury chose to enter a verdict against
       Dr. Toms, would you perceive that to carry with it a negative financial
       impact upon your employer?
       A.    Again, it would be a negative impact against Geisinger Health
       System, Geisinger Medical Center.
       Q.        Do you regard Geisinger Health System as your employer?
       A.           wasn't understanding. No,
                 Okay,    I                                I   regard Geisinger Health Plan
       as my employer.
       Q.     So let me re -ask the question. If there were a negative verdict
       against Dr. Toms would you regard that as having a negative financial
       impact upon your employer?
       A.        No.
       Q.     Would you be unable to sit as fair and impartial juror in this case
       given your affiliations?
       A.        I   would be able to be fair.
(continued...)


                                           [J-106-2016]   - 31
      After the trial court established that Nagle did not know Dr. Toms from his

employment as a physician assistant, Nagle indicated that, although he perceived his

son to be working for the same company as Dr. Toms, he did not believe a verdict

against Dr. Toms would have a negative financial effect upon his son's employer. Id. at

309a -12a.25

      The trial court accepted the jurors' answers, finding that none of the four

challenged jurors believed that a verdict against Dr. Toms would negatively affect their,



(... continued)
R.R. 272a -73a.
25
      Juror Nagle was questioned as follows:

      Q.     Would you perceive a negative financial verdict against Dr. Toms in
      this case if a Jury chose to do that as being or as carrying a negative
      financial impact on your son's employer?
      A.       I       don't believe so.
      Q.       Why not?
      A.     Well,   don't have any particular thoughts really one way or the
                              I


      other.   don't think that they would have a particular negative impact on
                   I



      Geisinger, other than just the knowledge in the community through the
      newspaper and new media and so forth.
                                                     * * *


      Q.     Your son works at Geisinger and you probably have other
      connections, okay? Do you believe that you would be unable to be fair and
      impartial in this particular case to sit as a juror?
      A.       (No response.)
      Q.       Because it is against a Geisinger Doctor?
      A.       No,        I   don't believe that would.
                                               I             I   believe can be fair.
                                                                           I




R.R. 310a -12a.

        Because we dispose of the Shinals' claim of trial court error as it pertains to
Nagle on the merits, we do not reach Dr. Toms' argument that any trial court error in
declining to dismiss Nagle for cause was harmless because Nagle, as an alternate
juror, was never called upon to deliberate.




                                              [J-106-2016]        -   32
or their close family member's, employer.          Tr. Ct. Op. at 9.   The trial court further

accepted each juror's testimony that he or she could remain fair and impartial.            Id.

Given the jurors' answers during voir dire, the trial court did not abuse its discretion in

declining to strike those jurors for cause.       See Fletcher, 149 A.2d at 437 (finding no

abuse of discretion where "the trial judge was most circumspect in ascertaining whether

.   .   .   [challenged jurors] were capable of rendering fairly a verdict on the evidence

adduced").

             Finally, we decline to accept the Shinals' broad assertion that a claim against a

"Geisinger" employee for actions committed during his employment necessarily has a

negative impact upon all entities bearing the Geisinger name. See Appellant's Brief at

26. The cause of action against Dr. Toms alleged failure to obtain informed consent.

The claim did not encompass any misconduct by any Geisinger entity. As the trial court

recognized, "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." Valles, 805 A.2d at 1239.




                                         [J-106-2016]   -   33
         B.   Jury Instruction: Informed Consent

         The next issue is whether the trial court misapplied the common law and the

MCARE Act when it instructed the jury that it could consider information provided to

Mrs. Shinal by Dr. Toms' "qualified staff" in deciding whether Dr. Toms obtained Mrs.

Shinal's informed consent to aggressive brain surgery.26

         The trial court initially instructed the jury that, in assessing whether Dr. Toms

obtained Mrs. Shinal's informed consent, it could consider relevant information

communicated by "any qualified person acting as an assistant" to Dr. Toms. R.R. 673a.

In   response to a question from the jury seeking clarification,27 the trial court elaborated

as follows:

         Now,   phrased it that way because it's within your province to determine a
                I


         recollection of the evidence you heard, who said what, who those people
         were that said these things and whether or not they were assistants to Dr.


26
        Dr. Toms asserts that the Shinals have waived their objection to the jury charge,
citing generally Pa.R.C.P. 227.1 (addressing the availability of post -trial relief) and
Pa.R.A.P. 302(b) (requiring exceptions to jury charges to be specific, not general). We
reject this argument. In response to Dr. Toms' proposed jury charge instructing the jury
to consider information provided by Dr. Toms' qualified staff, the Shinals filed a brief in
opposition arguing, inter alia, that only Dr. Toms could provide such information. The
trial court overruled the Shinals' objection. The Shinals again raised the issue in a
timely post -trial motion. By lodging a specific objection to the proposed charge, and
challenging the charge in their post -trial motion, the Shinals preserved their objection.
Moreover, the trial court acknowledged at argument on post -trial motions that the
Shinals "were objecting left and right" to the jury charge. See R.R. 775a. The trial court
was thus aware of the Shinals' challenge to the jury charge, rejected it on the merits,
and considered the issue preserved following trial. See Jones v. Montefiore Hosp., 431
A.2d 920, 923 n.5 (Pa. 1981) ("Although no specific objection was made at trial to the
charge given, appellants' exception to the trial court's refusal to charge as requested   .   .   .




was sufficient to put that charge before us for appellate review.").
27
       Specifically, the jury inquired: "Under legal guidelines, can the [physician
assistant] be part of informing the patient of a surgical procedure? Meaning, information
given to a patient from a [physician assistant] is part of the information required for a
patient to give informed consent." R.R. 705a.




                                       [J-106-2016]   -   34
        Toms, you know, working under him. And said any qualified person.
                                                               I


        There are different types of qualifications of medical personnel.

        And it is up to you to determine whoever you remember provided
        information to [Mrs. Shinal], it's up to you to determine whether they were
        a qualified person working as an assistant to Dr. Toms.        .   .   .




R.R. 693a -94a.

        The Shinals assert that the jury charge misstates our common law as expounded

in Valles, 805 A.2d at 1232,    conflicts with the MCARE Act, 40 P.S. § 1303.504, and is

unsupported by the trial evidence.            Dr. Toms responds that the jury charge was

consistent with precedent and with Section 504 of the MCARE Act, 40 P.S. § 1303.504.

In   this respect, Dr. Toms argues that, while it is the physician's duty to obtain the

patient's informed consent, the physician is not required to supply all of the information

personally.    Rather, according to Dr. Toms, it is the information conveyed, rather than

the person conveying it, that determines informed consent.

        In   examining jury instructions, "our scope 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., 907 A.2d

1061, 1069 (Pa. 2006). An erroneous charge provides grounds for a new trial if the

charge as a whole is inadequate, unclear, or has a tendency to mislead or confuse a

material issue. Id. at 1070. Our examination of a trial court's charge to the jury includes

a review of the charge in its entirety. Id. "Because this is a question of law, this Court's

review is plenary." Id. To the extent that our interpretation turns upon language in the

MCARE Act, statutory interpretation also is a question of law for which our standard of

review is de novo and our scope of review is plenary.                      Allstate Life Ins. Co.   v.

Commonwealth, 52 A.3d 1077, 1080 (Pa. 2012).                       Under the rules of statutory

construction, we cannot ignore the plain meaning of a statute when the words of that

statute are unambiguous,    1   Pa.C.S. § 1921(b), nor can we disregard the plain meaning



                                      [J-106-2016]    -   35
of an unambiguous statute in order to pursue its spirit. Id. Although it is undisputed that

the duty to obtain informed consent is imposed solely upon Dr. Toms, we must resolve

whether Dr. Toms can satisfy this duty wholly or in part through his staff's

communications with Mrs. Shinal.

       The doctrine of informed consent protects a patient's bodily integrity and

autonomy in determining what medical treatment to allow. The doctrine recognizes that

a patient has the right to be informed by his or her physician of the risks and benefits

attending a proposed course of treatment in order to enable the patient to make an

informed decision about the treatment. To ensure informed consent, the physician has

a duty to inform the patient about the risks, benefits, likelihood of success, and

alternatives. Valles, 805 A.2d at 1237 (holding that "doctors must provide patients with"

sufficient information to "give the patient '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") (quoting Duttry         v.

Patterson, 771 A.2d 1255, 1258 (Pa. 2001) (further citations omitted)).

       The doctrine of informed consent developed through the common law under the

theory that a surgery conducted without consent was a battery, see Smith         v.   Yohe, 194

A.2d 167, 174 (Pa. 1963), and that, to be effective, a patient's consent must be

informed, i.e., based upon adequate information, Gray       v.   Grunnagle, 223 A.2d 663 (Pa.

1966). Without the patient's informed consent, the physician is liable for the procedure,

regardless of whether the physician was negligent.

       Based upon the contractual nature of the physician -patient relationship, we have

held that "for there to be valid consent it must be clear that both parties understand the

nature of the undertaking and what the possible as well as the expected results might

be."   Id. at 674.   Without this meeting of the minds, a patient's understanding is




                                    [J-106-2016]   -   36
incomplete, and the patient's right to medical self-determination is violated.         It is   within

this physician -patient relationship that the doctrine of informed consent comes to the

fore and obligates the physician to inform the patient of the risks, benefits, alternatives,

and likelihood of success of the treatment.

       In   Bulman   v.   Myers, 467 A.2d 1353 (Pa. Super. 1983), the Superior Court

rejected the appellant's argument that the trial court erred in declining to charge the jury

that "a patient cannot formulate a valid, informed consent to a surgical procedure when

disclosures of the risks of surgery are made by a nurse assistant and not by the

operating surgeon." Id. at 1354. The Superior Court reasoned that "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." Id. at 1355 (quoting Sauro         v.   Shea, 390 A.2d 259, 262-63 (Pa.

Super. 1978)).   Similarly, in Foflygen   v.   Allegheny General Hosp., 723 A.2d 705 (Pa.

Super. 1999), the Superior Court held that "the validity of a surgical patient's informed

consent depends upon the pretreatment information relayed to the patient, regardless of

whether the disclosures are made by the treating physician or another qualified person

such as a nurse or other assistant." Id. at 707.

       This Court has held that the duty to obtain informed consent belongs solely to the

physician and that it is non -delegable.       Valles, 805 A.2d at 1239.      Indeed, we have

defined the physician's duty to obtain informed consent in terms of requiring physicians

to provide patients with the requisite information, id. at 1237, and as flowing "from the

discussions each patient has with his physician." Id. at 1239.          In Valles,   we held that

the duty to obtain informed consent rests solely upon the healthcare provider performing

a medical procedure, and not upon a hospital.            Therefore, a hospital has no duty to




                                     [J-106-2016]    -   37
obtain a patient's informed consent nor to ensure that physicians operating at the

hospital secure the patient's informed consent.

         Pursuant to Valles, the duty to obtain a patient's informed consent is a non -

delegable duty owed by the physician conducting the surgery or treatment. Because

obtaining informed consent results directly from the duty of disclosure, which lies solely

with the physician, a hospital cannot be liable for a physician's failure to obtain informed

consent. As the Superior Court has explained,

         [i]t is the surgeon and not the hospital who has the education, training and
         experience necessary to advise each patient of risks associated with the
         proposed surgery. Likewise, by virtue of his relationship with the patient,
         the physician is in the best position to know the patient's medical history
         and to evaluate and explain the risks of a particular operation in light of the
         particular medical history.
Kelly   v.   Methodist Hosp., 664 A.2d 148,   151 (Pa.       Super. 1995).

         For the same reasons, we hold that a physician cannot rely upon a subordinate

to disclose the information required to obtain informed consent. Without direct dialogue

and a two-way exchange between the physician and patient, the physician cannot be

confident that the patient comprehends the risks, benefits, likelihood of success, and

alternatives. See Valles, 805 A.2d at 1239 (providing that informed consent flows from

discussions between the physician and patient); Gray, 223 A.2d at 674 (requiring both

parties to understand the nature of the procedure and the expected results). Informed

consent is a product of the physician -patient relationship.                 The patient is in the

vulnerable position of entrusting his or her care and well-being to the physician based

upon the physician's education, training, and expertise.                It is   incumbent upon the

physician to cultivate a relationship with the patient and to familiarize himself or herself

with the patient's understanding and expectations. Were the law to permit physicians to

delegate the provision of critical information to staff, it would undermine patient

autonomy and bodily integrity by depriving the patient of the opportunity to engage in a


                                       [J-106-2016]      -   38
dialogue with his or her chosen health care provider. A regime that would countenance

delegation of the informed consent process would undermine the primacy of the

physician -patient relationship. Only by personally satisfying the duty of disclosure may

the physician ensure that consent truly is informed.

         Our account of the common law is consistent with the MCARE Act's codification

of informed consent:

         (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.

40 Pa.C.S. § 1303.504.

         Under the plain language of this section, the duty to obtain a patient's informed

consent for the several enumerated procedures, including surgery, belongs to the

physician. Section 504 does not merely require that the patient's consent be informed;

it   specifically imposes the duty upon physicians to provide to the patient the requisite

information and to obtain informed consent.          Nothing in the plain language of the Act

suggests that conversations between the patient and others can control the informed

consent analysis or can satisfy the physician's legal burden. Indeed, Subsection 504(b)

permits a physician to defend against an alleged failure to obtain informed consent by

presenting evidence of the information that a physician acting in accord with established

medical standards would provide. Again, the focus is upon the physician's provision of



                                      [J-106-2016]    -   39
information directly to the patient, not merely upon the patient's receipt of such

information from various sources.28

       Indeed, Dr. Toms' understanding of his obligation to provide information to Mrs.

Shinal and to obtain her informed consent is consistent with ours.                          Dr. Toms testified

that he views informed consent as "a real compact between the surgeon and the patient

that he or she trusts me with their life[,] and       I   need to know they understand that this is

serious, bad things could happen." R.R. 530a. To this end, Dr. Toms explained that he

does not delegate the obligation to obtain a patient's informed consent.                            Id. at 531a

("Truly, we're not allowed to have a [physician assistant] or a resident physician [review

the procedure with the patient],   I   have to do   it,   I   have to hear   it,   I   have to know it.").

       Thus, we hold that a physician may not delegate to others his or her obligation to

provide sufficient information in order to obtain a patient's informed consent. Informed

consent    requires   direct   communication              between      physician           and    patient,   and

contemplates a back -and -forth, face-to-face exchange, which might include questions

that the patient feels the physician must answer personally before the patient feels

informed and becomes willing to consent. The duty to obtain the patient's informed

consent belongs solely to the physician. Bulman and Foflygen, upon which the lower

28
        Requiring direct communications between the physician and the patient to
establish informed consent also serves the general objective of the MCARE Act to
reduce the costs of malpractice insurance.             "The quality of physician -patient
communications is associated with general patient dissatisfaction, which in turn is
correlated to the litigation risk of the physician." Daniel A. Durst, Cutting Through
Pennsylvania's Medical Informed Consent Statute: A Reasonable Interpretation
Abolishing the Surgical Requirement, 104 DICK. L. REV. 197, 216 (1999) (citing LaRae I.
Huycke et al., Characteristics of Potential Plaintiffs in Malpractice Litigation, 12 Annals
of Internal Med. 792, 796 (1994)).       Thus, increased communication between the
physician and patient relative to informed consent, as opposed to the physician's
delegation of communication to an agent or employee, enhances patient satisfaction,
reduces the risk of litigation, and is consonant with the legislative goal of reducing
malpractice costs.




                                         [J-106-2016]         -   40
courts and Dr. Toms relied, are Superior Court cases which pre -date Valles and the

MCARE Act. To the extent that those decisions permit a physician to fulfill through an

intermediary the duty to provide sufficient information to obtain a patient's informed

consent, we overrule them.
                                              *   * *



       We reverse the Superior Court's order affirming the trial court's denial of the

Shinals' motion for post -trial relief, and we remand for a new trial consistent with this

opinion.
       Jurisdiction relinquished.


       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 and II(A) of the opinion.
                                    I




       Justice Baer files a dissenting opinion in which Chief Justice Saylor joins and
Justice Mundy joins Part of the dissent.
                          I




                                        [J-106-2016]    - 41
