Lack of Informed Consent Striking Prospective Juror for Employment Relationship to Case Information Provided by Physician's Qualified Staff

Shinal v. Toms, PICS Case No. 17-0965 (Pa. June 20, 2017) Wecht, J.; Todd, J., concurring and dissenting; Baer, J., dissenting. (53 pages).

Trial court erred in instructing jury to consider information that defendant physician's qualified staff provided to plaintiff-patient, because a physician could not delegate duty to provide information sufficient to obtain patient's informed consent. Judgment reversed, case remanded for new trial.

Megan and Robert Shinal appealed the judgment entered in favor of Dr. Steven Toms. Megan consulted with Dr. Toms regarding the removal of a nonmalignant tumor in the pituitary region of her brain that if left untreated would become life-threatening. The consultation entailed a discussion of Megan's goals and expectations and the risks of different approaches to surgery. According to Toms, he understood Megan to want to remove all the tumor even if it involved a reasonable risk. Toms informed Megan that although subtotal removal was safer in the short-term it would increase the likelihood that the tumor would grow back, and opined that total removal offered the highest chance for long-term survival.

Megan thereafter had conversations with Toms' physician assistant about the surgery, and signed an informed consent form electing total resection of the tumor. Megan underwent the surgery, during which she suffered perforation of her carotid artery, resulting in stroke, brain injury, and partial blindness. The Shinals then filed the present medical malpractice action against Toms and the Geisinger Medical Center, where the surgery was performed, alleging that Toms failed to obtain informed consent to the surgery. The Shinals alleged that Toms failed to fully explain the risks of the surgery or offer the lower-risk alternative of subtotal resection.

Prior to trial, the Shinals moved to strike all potential juror who were personally or had family members employed or insured by the Geisinger entities. After dismissing Geisinger because the duty to inform belonged solely to Toms, the trial court held that jurors would only be struck for a close financial relationship that would give rise to the appearance of partiality or bias. The trial court denied the Shinals' motions to strike four jurors who worked or had family who worked for Geisinger. Following the presentation of evidence, the trial court instructed the jury that it could consider information communicated to Megan by Toms' qualified staff.