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Only a physician—not a member of the physician’s staff—can obtain informed consent from a patient prior to a medical procedure, a splintered Pennsylvania Supreme Court has ruled.

In the same case, the justices also tackled the issue of how close a prospective juror’s employment relationship with a defendant must be to require disqualification.

In Shinal v. Toms, the court ruled 4-3 to grant a new trial to plaintiff Megan Shinal, who underwent brain surgery performed by defendant Dr. Steven A. Toms, the chief of neurosurgery at Geisinger Clinic in Danville, and suffered a perforated carotid artery.

The majority reversed a Superior Court ruling that had found no error in a Montour County trial judge’s instruction to the jury that, in determining whether Toms obtained informed consent, it could consider any information communicated to Shinal by any qualified person acting as Toms’ assistant.

Justice David N. Wecht, writing for the majority, said doctors cannot delegate their obligation to obtain 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,” Wecht said. “The duty to obtain the patient’s informed consent belongs solely to the physician.”

Wecht was joined in full by Justices Christine L. Donohue and Kevin M. Dougherty. Justice Debra Todd joined the majority with regard to the informed consent ruling.

Justice Max Baer dissented and was joined in full by Chief Justice Thomas G. Saylor and in part by Justice Sallie Updyke Mundy.

“Stated succinctly, there is nothing in the law of this commonwealth precluding a physician from utilizing his qualified staff to aid in his duty to obtain a patient’s informed consent,” Baer said. “If qualified staff is somehow negligent in aiding a physician in informing a patient’s consent, then the physician remains liable if that negligence results in the failure to obtain the patient’s informed consent.”

Baer added that forcing doctors to personally obtain informed consent from every patient “improperly injects the judiciary into the day-to-day tasks of physicians such as Dr. Toms and fails to acknowledge the reality of the practice of medicine.”

The court was divided differently on issues related to jury strikes.

In voir dire, according to the Superior Court’s opinion, the plaintiffs used their four peremptory challenges to dismiss four prospective jurors who had ties to Geisinger. The plaintiffs sought a per se disqualification of all prospective jurors with ties to a Geisinger affiliate, but the court instead conducted “in-depth individual examination[s],” Judge William Platt said.

After the jury returned a defense verdict, the Shinals appealed, arguing that because they were forced to use four peremptory strikes they were unable to strike other impartial jurors. They said the court should have presumed prejudice on the part of the four prospective jurors.

The Superior Court disagreed, finding that the Shinals failed to develop an argument that a direct relationship between Toms and any of the prospective jurors existed. Addressing the possibility of an indirect relationship, he said none of the prospective jurors had such close ties to Geisinger, which was no longer a party to the litigation, that the trial court should have presumed prejudice.

Wecht agreed with the Superior Court’s assessment that the trial court did not abuse its discretion in refusing to the strike the jurors in Shinal’s case. Wecht also rejected the plaintiffs’ argument that any claim against a Geisinger employee for actions committed during employment necessarily has a negative impact on all Geisinger entities.

“The cause of action against Dr. Toms alleged failure to obtain informed consent,” Wecht said. “The claim did not encompass any misconduct by any Geisinger entity.”

Wecht was joined in that result by all but Todd, who argued that the majority should have placed more weight on the jurors’ perceived relationship to Geisinger, rather than on their actual employment relationships.

“In my view, where a prospective juror’s perceived relationship with a party-defendant differs from his actual relationship, it is the former that should guide the trial court in determining whether the prospective juror may view his interests and the party-defendant’s as aligned, and, thus, whether to presume prejudice,” Todd said in a concurring and dissenting opinion. “Indeed, it is a juror’s perception of his relationship with, rather than his actual relationship with, the party-defendant that warrants our concern that he may be biased.”

The court was a bit more deeply split, however, when it came to the majority’s ruling on the standard of review for appellate courts examining decisions to strike or not to strike jurors.

The majority agreed with the Superior Court’s holding that the standard of review is de novo when a presumption of prejudice arises based on a prospective juror’s relationship with someone involved in the case, and deferential where the trial court’s decision was based on a juror’s conduct or answers.

But the justices split over whether those two standards of review are mutually exclusive.

Wecht said they are not.

“A juror may indicate through questioning an inability to be impartial because of a particular relationship with someone involved in the case,” Wecht said. “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.”

But Baer, joined by Saylor, disagreed.

“In my view, this court’s precedent requires a more simplistic and straightforward approach to appellate review of trial courts’ decisions regarding whether to strike prospective jurors for cause: Appellate courts should review such decisions for an abuse of discretion,” Baer said.

Toms’ attorney, Stephen A. Ryan of Marshall Dennehey Warner Coleman & Goggin in King of Prussia, said in an email, “While I am gratified that the court 6-1 upheld our position regarding juror disqualification, I am  disappointed in the draconian rule which was approved by a narrow (4-3) majority, required an overly strict reading of our statute and overruled prior well-reasoned appellate decisions; it seems to ignore the realities of the modern day delivery of health care by a team.”

But coounsel for the plaintiffs, Melissa Scartelli of Scartelli Olszewski in Scranton, said she believes the informed consent requirement adopted by the Supreme Court is actually “a win-win for patients and doctors” because it will improve communication before surgery and lead to fewer misunderstandings about the risks associated with those procedures.