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PA Superior Court Rules on Informed Consent and Jury Selection

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In Shinal v. Toms, 2015 Pa. Super. 178 (Aug. 25, 2015), The Pennsylvania Superior Court affirmed the trial court’s decision not to strike four prospective jurors for cause based on their relationship with defendant medical facilities because plaintiff-appellants failed to demonstrate prejudice.  The Superior Court further held that the jury may consider communication with defendant physician’s staff in determining existence of informed consent.

Plaintiff-appellants’ claims involved the surgical removal of a benign brain tumor from plaintiff patient.  Plaintiff patient and her husband sued defendant physician; defendant medical center; and defendant clinic alleging a lack of informed consent for the procedure.  Defendant physician asserted that he provided both aggressive and less aggressive approaches for treating the tumor, but that in his opinion more aggressive surgery was more beneficial in the long-term.

As the matter proceeded to trial, the parties were unable to empanel a jury because too many of the prospective jurors were either employed or insured by some of the medical facility defendants.  In a second round of jury selection, the trial court permitted the parties to question the prospective jurors regarding their relationship with the medical facility defendants.  Four jurors identified a relationship with the medical facility defendants but stated that they could render a fair and impartial verdict.  Specifically, some stated that the medical facility defendants were so large that they would unlikely be affected by a single judgment or that medical malpractice insurance likely covered the claims.

At the conclusion of the trial, the court granted the medical facilities defendants’ Motion for Partial Summary Judgment and dismissed plaintiffs’ claims against them because the only theory on which plaintiffs predicated liability was lack of informed consent, which was the sole duty of defendant physician.  The jury subsequently returned a verdict in favor of defendant physician and against plaintiffs.  Plaintiff-Appellants appealed asserting that the trial court should have presumed prejudice and stricken the four jurors at issue for cause; erred in its jury instruction regarding informed consent; and improperly admitted the signed informed consent form.

The Superior Court held that plaintiff-appellants provided no evidence to support their claim of prejudice with regard to the prospective jurors and that any relationship was attenuated and largely contradicted by the jurors themselves.  The Superior Court declined to follow the plurality decision in Cordes v. Assocs of Internal Med., 87 A.3d. 829 (Pa.Super. 2014), in holding none of the challenged prospective jurors had a close relationship with participants in the litigation on which prejudice must be assumed.

On a separate issue, the Superior Court held that the trial court properly permitted the jury to consider information given by appellee-physician’s staff in determining the informed consent issue.  Although the MCARE Act was enacted after the precedents established in Foflygen v. Allegheny Gen. Hosp., 723 A.2d 705 (Pa.Super. 1999) and Bulman v. Myers, 321 Pa.Super. 261 (Pa.Super 1983), the MCARE Act did not preempt the principals set forth therein.  Moreover, the Superior Court held the purposes of MCARE are better served by the encouragement of the dissemination of information regarding prospective surgery, which implicitly includes communication with physician staff.

Plaintiff-appellants’ also challenged the trial court’s denial of their motion to preclude reference to the informed consent form plaintiff patient signed.  However, the Superior Court affirmed the trial court’s decision to permit reference to the signed informed consent form because Plaintiff-appellants offered no legal justification to preclude the form.


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