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Pennsylvania Supreme Court Orders New Trial In Medical Malpractice Case Due To An Error In Jury Instructions

The Pennsylvania Supreme Court ordered a new trial in a medical malpractice claim involving Steven Toms, a neurosurgeon who had been victorious in a Montour County case involving his surgical work at the Geisinger Health System. The appeal resulted in a 4-3 ruling, meaning Megan and Robert Shinal will have their case heard again in a county court. Geisinger Health is a non-profit medical system based in Danville, PA that has several hospitals and clinics in Pennsylvania, and now a partnership with AtlantiCare giving them an increasing presence in New Jersey. Dr. Toms was alleged to have demonstrated a failure to clarify some risks associated with a surgery which he performed on Mrs. Shinal or to offer her lower risk treatment option(s) for handling a tumor. The first issue was if the trial court erred in not excluding jurors for certain relationships they had with the parties in the case. One example was if a juror who was a former Geisinger employee should be barred from serving. No error was found to exist in this aspect of the case; however, an error occurred when the jury was instructed to consider communication from Tom’s staff in determining whether informed consent occurred.

In 2007, Mrs. Shinal and Dr. Toms met for a consult about removing a benign tumor from a part of her brain. Dr. Toms testified that they had discussed Shinal’s outlook on the matter and the risk involved, which included potential harm to the carotid artery and optic nerve, which was in close proximity. Weeks later, Shinal spoke with an assistant from his office over the phone regarding potential scarring, if radiation would be needed and the time frame for scheduling the procedure. Notes taken regarding the call indicated that the topic of craniotomy incisions surfaced as well. Mrs. Shinal later signed a form of informed consent.

Shinal had a total craniotomy resection of the tumor at a Geisinger facility; during which, Dr. Toms damaged her carotid artery, leading to hemorrhaging, stroke and some blindness. Mrs. Shinal claimed that she did not recall being properly informed about the risks involved with this surgery. She further explained that if she had been made aware of the possible subtotal resection option, she would have opted for this alternative. The state’s Med Care Availability & Error Reduction Act requires that physicians obtain the informed consent of a patient when initiating surgical procedures or anesthesia, unless it is an emergency situation.

Supreme Court Justice David Wecht stated that physicians have a duty to deliver information to their patients necessary to attain informed consent. He continued, that inform consent is not something that may be delegated. Counsel for Geisinger thinks the ruling on informed consent creates a heightened burden for physicians. They also expressed concern that this issue may create higher overall healthcare costs. He felt that Dr. Toms had properly consulted with Shinal, who then followed up with a few questions addressed by his assistant.

About the Author

Briggs Bedigian
Briggs Bedigian

H. Briggs Bedigian (“Briggs”) is a founding partner of Gilman & Bedigian, LLC.  Prior to forming Gilman & Bedigian, LLC, Briggs was a partner at Wais, Vogelstein and Bedigian, LLC, where he was the head of the firm’s litigation practice.  Briggs’ legal practice is focused on representing clients involved in medical malpractice and catastrophic personal injury cases. 


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