Cunningham, G. v. Picardo, C. ( 2020 )

J-A29015-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
GINGER CUNNINGHAM : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
CARLA PICARDO, M.D. : No. 569 WDA 2019
Appeal from the Judgment Entered April 11, 2019
In the Court of Common Pleas of Erie County Civil Division at No(s):
10274-2013
BEFORE: BENDER, P.J.E., KUNSELMAN, J., and PELLEGRINI, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED MARCH 27, 2020
Appellant, Ginger Cunningham, appeals from the judgment entered in
favor of Appellee, Carla Picardo, M.D., following a jury trial.1 We affirm.
We briefly summarize the relevant facts and procedural history of this
matter. On May 29, 2013, Ms. Cunningham filed a complaint against Dr.
Picardo, a medical doctor practicing obstetrics and gynecology at Erie
Women’s Health Partners, alleging that Dr. Picardo performed surgery on her
without her consent, informed or otherwise. See Complaint, 5/29/13, at ¶
41; N.T. Trial, 3/13/19, at 50-52. The case proceeded to a two-day jury trial
in March of 2019.
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 The caption incorrectly named Appellee as “Carl A. Picardo, M.D.,” instead
of “Carla Picardo, M.D.” We have amended it accordingly.
J-A29015-19
At trial, Dr. Picardo testified that Ms. Cunningham became a patient of
hers around August of 2010. N.T. Trial, 3/13/19, at 54-55. At that time, Dr.
Picardo explained that Ms. Cunningham had been having repeated problems
with her Bartholin’s gland. Id. at 55.2 Consequently, during an appointment
with Ms. Cunningham on January 26, 2011, Dr. Picardo stated that she
recommended the excision of Ms. Cunningham’s right Bartholin’s gland, an
unusual and drastic procedure. Id. at 61-62, 65-66. At that appointment,
Dr. Picardo recalled telling Ms. Cunningham that she had never removed a
Bartholin’s gland herself, had only seen it done once when she was a resident
nine years prior, and that she was not comfortable doing the procedure by
herself. See id. at 66-67. Specifically, Dr. Picardo testified:
The message I was getting across is this is not a procedure I would
do solo, by myself. I would have to have -- I didn’t say this
directly, but I -- in my mind the idea is you do surgery; if you are
not feeling comfortable specifically with what you’re doing, having
the proper assistant can actually bridge that gap of experience.
Id. Because she did not have experience with the procedure, Dr. Picardo said
that she offered to refer Ms. Cunningham to a specialist in Pittsburgh. Id. at
68-69. However, Dr. Picardo testified that Ms. Cunningham expressed that
____________________________________________
2 We note that the Bartholin’s glands “are located on each side of the vaginal
opening. These glands secrete fluid that helps lubricate the vagina.” See
“Bartholin’s cyst,” Mayo Clinic (April 26, 2018),
https://www.mayoclinic.org/diseases-conditions/bartholin-cyst/symptoms-
causes/syc-20369976 (last visited Mar. 6, 2020). Dr. Picardo explained at
trial that the Bartholin’s gland is “pea-size[d], maybe a little bit bigger, and it
sits sort of in its little bed to hold it, and you can feel that area when you do
a vaginal exam, which involves one single-gloved finger to kind of go inside
the vagina and feel into that area….” N.T. Trial, 3/13/19, at 57.
-2-
J-A29015-19
she would like to stay in Erie if there was someone there who could do the
procedure. Id. at 69. As a result, Dr. Picardo said she offered to go speak
with her partners to see if one of them was comfortable with a Bartholin’s
gland excision. Id. Dr. Picardo stated that, at the time, the concept she
hoped to provide to Ms. Cunningham was that she would “like to see if they
have experience, could help with the procedure.” Id.
Dr. Picardo articulated that she then left the exam room, and went to
speak to her partner, Dr. Jennifer Stull, D.O. Id. at 72. According to Dr.
Picardo, Dr. Stull told her that she had performed Bartholin’s gland excisions
in the past, and was willing to assist with Ms. Cunningham’s case. Id. at 73.
Dr. Picardo explained that she then went to speak to her other partner, Dr.
Francis Tseng, M.D., who conveyed to her that he was not comfortable being
the main person performing the procedure, but would be available as a
backup. Id. at 74-75.
Dr. Picardo articulated that she subsequently returned to Ms.
Cunningham’s exam room, and conveyed to her “the concept … that I talked
to Dr. Stull, she’s willing to be there, is willing to help.” Id. at 76. When
asked whether she specifically told Ms. Cunningham that Dr. Stull would be
assisting her, Dr. Picardo replied:
When we consent patients, we don’t typically go into who’s going
to do exactly what, because that’s not something that we do
ourselves. When we go into surgery, there’s the responsible
surgeon and someone who is also there, we call it the assistant,
because a lot of times we consider these formal titles. But as the
surgeon that also means -- it doesn’t mean necessarily you’re the
only one doing the surgery, but you are responsible. You are
-3-
J-A29015-19
responsible for the consent, the paperwork, seeing the patient
beforehand, making sure all the supplies are in the operating
room, seeing the patient afterwards, writing all of the care for the
patient after the surgery, dictating the record. And how much you
do, sometimes the main surgeon and the assistant surgeon, the
attending surgeon and the assistant surgeon are doing half and
half. We don’t sort of decide you’re going to do this part, I’m
going to do this part.
So that’s where I think there becomes some confusion about
labeling someone the surgeon or the assistant. There’s the
attending, or the responsible, surgeon, which was me, because I
did everything that the attending[,] responsible surgeon would do.
And Dr. Stull was my assistant, but as an assistant[,] she basically
could do a lot or a little of the surgery. And in my mind she was
… the appropriate assistant to have, because she would be there
with the knowledge of where[,] … if I felt like I was having
difficulty finding the Bartholin’s gland[,] she would be able to
either do that part or help me.
Id. at 77-78.
During the January 26, 2011 appointment, Dr. Picardo testified that she
shared with Ms. Cunningham the risks of surgery, her alternative choices, and
a description of the procedure. Id. at 91-93, 133-38. Dr. Picardo recalled
that she filled out a written consent form. Id. at 93. On the consent form,
“Picardo/Stull/Tseng” appears next to “Physician’s Name.” See id.; Ms.
Cunningham’s Exhibit 5. Dr. Picardo indicated that she always included all the
physicians’ names so that patients knew that these physicians “could be
involved with their surgery[,]” but stated that she does not “give a specific
role” for them. N.T. Trial, 3/13/19, at 93. Dr. Picardo stated that she has
never been taught that a physician must tell a patient how surgery
responsibilities are going to be divvied between the attending surgeon and
anyone else, and that such information is not required to obtain informed
-4-
J-A29015-19
consent. Id. at 139. With respect to Ms. Cunningham’s written consent form,
Dr. Picardo testified that:
[W]hat the patient should take from this in my mind is [that] those
are the people who are allowed to be involved with her surgery,
that she is consenting to be allowed to be in the room, potentially
participate in the surgery itself. And that is how it explains. With
Dr. Tseng[,] I was very specific saying I doubt he will be there but
I put his name on for completion and for your permission.
Id. at 94-95. Ms. Cunningham signed the consent form. See Ms.
Cunningham’s Exhibit 5.
Dr. Picardo testified that Ms. Cunningham’s surgery occurred on
February 8, 2011. See N.T. Trial, 3/13/19, at 95. Dr. Picardo recalled that
she had a conversation with Ms. Cunningham in the holding room before the
procedure took place, and explained that the attending surgeon must see the
patient before surgery. Id. at 95-97. During Ms. Cunningham’s surgery, Dr.
Picardo testified that she made the incision, dissected the tissue to the gland,
removed the gland, and placed the sutures. Id. at 104-06. Dr. Picardo agreed
that Dr. Stull’s involvement was limited to cutting sutures, suctioning and
sponging blood, and protracting tissue. Id. at 105-06.
Dr. Picardo stated that she planned post-operation appointments with
Ms. Cunningham. Id. at 109-10. At an appointment on April 1, 2011, Dr.
Picardo remembered that Ms. Cunningham brought up that “she was unhappy
about how her vulva looked” and that she was having pain with sex. Id. at
-5-
J-A29015-19
112-13.3 Dr. Picardo recalled Ms. Cunningham’s complaining that her labia
minora are uneven and not exactly the same size. Id. at 115, 118.4 However,
after examining her, Dr. Picardo said she determined that it looked like “the
normal range of asymmetry” and could not see what Ms. Cunningham meant.
Id. at 115. Dr. Picardo testified:
[W]e … reviewed the surgery, because I don’t remember the exact
words [Ms. Cunningham] used but I think she gave me the
impression that she felt I had removed something, which was not
the case at all. And I went in and spent 15 minutes explaining or
reviewing the surgical method. And I told her I’m not sure why -
- if you feel there’s a difference in the symmetry, I don’t know
why that would happen, there’s nothing that I specifically did
during the surgery or that we did during the surgery, anything
involved in the surgical method, that could explain that, because
we weren’t involved on the outside, we were on the inside. Single
incision, no tissue was removed from the skin itself, the only tissue
that was sent to pathology was the Bartholin’s cyst slash gland.
Id. at 115-16; see also id. at 122 (“I couldn’t explain a logical reason for it
to [look different after the surgery] since no tissue was removed during
surgery related to the skin, the only part that was removed was the
Bartholin.”); N.T. Trial, 3/14/19, at 72-73 (stating that the incision was made
inside of the vagina and nothing was done to any of the labia). Dr. Picardo
stated that she did not observe any missing labia, but only asymmetry, which
she said is not an abnormal finding. N.T. Trial, 3/14/19, at 77.
____________________________________________
3The parties referred to the external genitalia as the vulva at trial. N.T. Trial,
3/13/19, at 22, 33, 99.
4 In lay terms, the labia minora are the smaller lips around the vaginal
opening. See N.T. Trial, 3/13/19, at 113-14.
-6-
J-A29015-19
Ms. Cunningham also testified at trial. She explained that, during her
January 26, 2011 conversation with Dr. Picardo about the procedure, Dr.
Picardo “told [her] that she had not excised a Bartholin’s gland before, that
she was not comfortable doing the procedure herself, and that she would
speak to her colleagues about it to see if one of them would be available to
do it.” Id. at 169-70. Ms. Cunningham said she did not remember Dr. Picardo
offering to refer her to a specialist in Pittsburgh. Id. at 170. Ms. Cunningham
explained her understanding of what Dr. Picardo had told her as follows:
[Ms. Cunningham’s attorney:] Tell us about how you responded
to what you were being told. When [Dr. Picardo] told you she’d
never done it, wouldn’t do it alone and was going to talk to one of
her partners, what were you understanding that she was telling
you?
[Ms. Cunningham:] That one of her partners would be doing the
surgery. And that was more confirmed to me at that point,
because I recall after Dr. Picardo came back in to talk with her
partners that she had said that Dr. Stull had done these surgeries,
was comfortable with them, and then asked me if I was okay since
she was my doctor that she [would] be there and be present
during the surgery. I recall her asking if she could scrub in to be
there.
[Ms. Cunningham’s attorney:] When you say she asked if it was
okay for her to scrub in, is that Dr. Picardo asked if it was okay?
[Ms. Cunningham:] Yes.
[Ms. Cunningham’s attorney:] So she leaves the room, comes
back and tells you Dr. Stull has done this before, Dr. Stull is
comfortable doing it, and asks if it’s okay for her to scrub in?
[Ms. Cunningham:] Correct.
[Ms. Cunningham’s attorney:] And what was your understanding
about what Dr. Picardo would be doing in the process?
-7-
J-A29015-19
[Ms. Cunningham:] Um, I thought it was great that she wanted to
be there, because she was my doctor, I was comfortable with her.
I was also comfortable with Dr. Stull, because of the incision and
drainage that she had done previously, so I had met her and was
cared for by her well. And I thought they all seemed to be caring
about my outcome.
Id. at 170-71. Ms. Cunningham testified that she understood that “Dr. Stull
was performing my surgery[,]” and “expected [Dr. Picardo] to be there for me
as her patient and maybe hand a pair of scissors in or something that, you
know, would be needed by Dr. Stull.” Id. at 175. According to Ms.
Cunningham, “[n]owhere in my mind did I think Dr. Picardo was going to cut
into me, did I think Dr. Picardo would be the one removing the gland from
me, did I think Dr. Picardo would be the one putting stitches in me….” Id. at
202. She said she understood that “Dr. Stull would do the surgery, Dr. Picardo
would be present or possibly assist, and Dr. Tseng would be available that day
if … need be for any emergency[,] for backup.” Id. at 206.
Ms. Cunningham said that she did not speak to Dr. Picardo on the
morning of her surgery, and has no memory of the operating room because
she was under anesthesia. Id. at 175-76. Following her surgery, Ms.
Cunningham recalled her fiancé telling her that Dr. Picardo had talked to him
after the procedure, and Ms. Cunningham “remember[ed] thinking that it was
weird that she had come to speak to him, because I thought Dr. Stull was
doing the surgery and I expected her to speak with him.” Id. at 176-77.
Shortly after surgery, Ms. Cunningham testified that she called in to see
a physician before her scheduled two-week post-operation appointment
because she was in a lot of pain, and was examined by Dr. Stull, who told her
-8-
J-A29015-19
that she thought “Dr. Picardo did a good job.” Id. at 178-79, 181. Ms.
Cunningham said that this comment suggested to her that Dr. Picardo was
her lead surgeon, which upset her, but she was distracted by her pain at that
point. Id. at 181.
Ms. Cunningham testified that she had two post-operative appointments
with Dr. Picardo. At the first appointment on February 26, 2011, Ms.
Cunningham remembered that she was healing well, and her pain had
improved. Id. at 181-82. Though she had concerns about her appearance,
Ms. Cunningham stated that she did not say anything to Dr. Picardo at that
point because she was still healing and “swelling was going down, bruising
was resolving.” Id. at 182. However, at her second post-operative
appointment on April 1, 2011, Ms. Cunningham recalled that she “did have
some time to heal up, quite a bit, in that period of time [from February to
April], and things did not look better at all. As swelling went down, it was
very apparent to me that the bottom portion of my labia minora was gone….”
Id. at 183. In addition to sharing her concerns about her appearance with
Dr. Picardo, Ms. Cunningham said she also conveyed that she was still
experiencing some pain. Id. at 183-85. She recalled Dr. Picardo’s discussing
plastic surgery and physical therapy with her, and prescribing topical ointment
to treat her pain and a steroid cream to help with skin elasticity. Id. at 184-
86.
Ms. Cunningham testified that she felt betrayed and misled by Dr.
Picardo, and said she “can’t and couldn’t understand the concept of why she
-9-
J-A29015-19
would perform this surgery when she clearly told me she had never done it
and we clearly discussed Dr. Stull doing the surgery.” Id. at 186-87. She
stated that her “feelings go to this is permanent, my labia is not going to grow
back, I was stuck with this, and it was a real struggle for me, my confidence,
my dignity.” Id. at 186. Ms. Cunningham relayed that the left and right sides
of her labia minora were symmetrical before the surgery. Id. at 187-88, see
also 189.5 Ms. Cunningham claimed that, after the surgery, the right side of
her labia minora “no longer goes to the bottom of the vaginal opening. I am
left with the top half of my labia minora.” Id. As a result, Ms. Cunningham
stated that, “with what I was left with[,] this disfigurement from the surgery,
it’s impacted me in many different ways, in many different relationships of
[sic] my life; in my trust of doctors, for myself, for my son, for my father, for
my mother, for my patients that I was taking care of [while working as a
nurse]. It’s … really put a lot of distrust in me there.” Id. at 198. She also
noted that it presented a struggle in her marriage and, since getting divorced
following the surgery, she feels embarrassed to tell future partners about what
happened to her. See id. at 193-94, 199.
Dr. Stull’s deposition was read at trial, where she indicated that she
remembered having a discussion with Dr. Picardo about Ms. Cunningham’s
case, that it was common for them to talk to each other, and that it was
____________________________________________
5 At trial, Ms. Cunningham’s sister and mother both testified that Ms.
Cunningham’s vulva looked different after the surgery, and noticed that part
of her labia was missing. See N.T. Trial, 3/13/19, at 163, 211.
- 10 -
J-A29015-19
standard practice for their office to have two doctors involved with any
surgery. N.T. Trial, 3/14/19, at 27, 29. Dr. Stull said that she did not
remember whether Dr. Picardo told her anything about Dr. Picardo’s own
experience with Bartholin’s gland excision surgeries. Id. at 30. When
questioned about her understanding regarding who was responsible for Ms.
Cunningham’s surgery, Dr. Stull conveyed:
[Ms. Cunningham’s attorney:] Did you have any understanding
earlier, during that initial discussion with Dr. Picardo, about who
was going to be the attending surgeon and who would be the
assisting surgeon?
[Dr. Stull:] Well, she would have been the attending. It was her
patient. She was the one that got the consent, and I would have
assisted.
[Ms. Cunningham’s attorney:] Why did you understand that she
was going to be the attending and you would be the assistant?
[Dr. Stull:] Because it was her patient. It was her consent. The
surgery was scheduled under her.
[Ms. Cunningham’s attorney:] Okay. And what does it mean to
be the attending surgeon versus the assistant surgeon?
[Dr. Stull:] The attending is the primary. The assistant is the one
that retracts and basically just assists in the OR.
***
[Ms. Cunningham’s attorney:] Was there ever a specific discussion
that you had with Dr. Picardo before the surgery about allocating
responsibility?
[Dr. Stull:] No.
[Ms. Cunningham’s attorney:] You had the general understanding
that you would be the assistant and she would be the attending
and that meant she would have primary responsibility?
[Dr. Stull:] Correct.
- 11 -
J-A29015-19
[Ms. Cunningham’s attorney:] And you would assist. Did Dr.
Picardo ask you for any advice or guidance about how the
procedure should be performed?
[Dr. Stull:] Well, that’s standard practice. I can’t tell you with this
particular case if she did, but we always do that in the OR. We
always, you know, any time you question, you know, what are
your thoughts, you know, it’s part of working as a team.
Id. at 30-32. Dr. Stull testified that her involvement in Ms. Cunningham’s
surgery was limited to cutting sutures, retracting tissue, and suctioning and
sponging blood so that the visual field is clear. Id. at 36.
Following trial, a jury returned a verdict in favor of Dr. Picardo,
determining that she proceeded with the surgical procedure upon Ms.
Cunningham with proper informed consent. Thereafter, Ms. Cunningham filed
a timely post-trial motion, which the trial court denied. On April 11, 2019,
judgment was entered in favor of Dr. Picardo and, on April 16, 2019, Ms.
Cunningham filed a timely notice of appeal. The trial court subsequently
ordered Ms. Cunningham to file a Pa.R.A.P. 1925(b) concise statement of
errors complained of on appeal, and she timely complied.
Presently, Ms. Cunningham raises the following issues for our review:
A. Did the trial court err when it allowed the defense to argue lack
of negligence in this informed consent case?
B. Did the trial court err by limiting the material “facts” of which
a patient must be informed to material “risks”?
C. Did the trial court err when it refused to instruct the jury that
a patient must be correctly advised of the professional credentials,
training and experience of her primary surgeon?
Ms. Cunningham’s Brief at 4 (unnecessary capitalization omitted).
- 12 -
J-A29015-19
Issue 1
In Ms. Cunningham’s first issue, she argues that the trial court erred
when it allowed the defense to argue lack of negligence in this informed
consent case, and asserts that the trial court “erroneously denied [her] motion
in limine (#2) which sought to exclude any evidence or argument regarding
negligence or the standard of care.” See id. at 15 (citation omitted). She
states that “[t]he fact that [her] surgery was performed non-negligently
and/or within the standard of care was repeatedly highlighted in defense
counsel’s opening and closing arguments. This was an abuse of discretion and
error of law since it is well established that negligence concepts are irrelevant
in a consent or informed consent case.” Id. (citation omitted). Additionally,
she says that “it suggested to the jury that lack of negligence could be a
defense to lack of consent.” Id. In particular, she claims that “the jury may
have applied a ‘so what’ standard, reasoning that since the doctor was not
negligent, the lack of informed consent was harmless. The injection of
negligence concepts may have led the jury to lose sight of the central question
pertaining to whether the doctor obtained informed consent.” Id. at 23.
The trial court explained why it denied Ms. Cunningham’s motion in
limine to exclude negligence evidence in the first place, as follows:
[T]his trial court sustained [Dr. Picardo’s] objection and denied
said [m]otion in [l]imine to avoid counsel claims of “back dooring”
negligence concepts into this case. In the instant case, this trial
court favored a “wait and see” attitude to ensure no counsel
admitted negligence evidence in this alleged medical battery case.
***
- 13 -
J-A29015-19
When [Ms. Cunningham’s] counsel argued said [m]otion in
[l]imine regarding negligence concepts, [her] counsel did not
argue negligence was not an issue based upon the facts
presented.[6] [Ms. Cunningham’s] counsel argued, based upon an
alleged lack of consent, a battery had occurred, and [Dr. Picardo]
caused [Ms. Cunningham’s] alleged disfigurement in an area
which was not being operated upon. As such, [Dr. Picardo’s]
counsel objected to this [m]otion in [l]imine due to his concern
[Ms. Cunningham’s] counsel was “going to back door a standard
of care case, because their whole case is around this allegedly
improperly removed piece of [Ms. Cunningham’s] labia.” In fact,
as a precaution, [Dr. Picardo’s] counsel had an expert available
during trial to testify to standard of care if [Ms. Cunningham]
raised this issue at the trial. Similarly, as a precaution, this trial
court chose a “wait and see” attitude to ensure no counsel
admitted negligence evidence in this alleged medical battery case.
During the trial, no negligence evidence was presented or
admitted. Since no negligence evidence was introduced into this
case, this issue as to [Ms. Cunningham’s] [m]otion in [l]imine is
rendered moot and, therefore, lacks merit.
Trial Court Opinion (TCO), 6/13/19, at 3-4 (internal citation omitted).
While no negligence evidence was admitted at trial, Ms. Cunningham
nevertheless takes issue with the following comments pertaining to negligence
made by defense counsel in her opening and closing statements. During the
defense’s opening statement, defense counsel asserted:
I’m going to talk with you a little bit about what the evidence will
show, but before talking about what the evidence will show[,] I’m
going to tell you what it will not show. And [Ms. Cunningham’s]
attorney touched on this a little bit, and that was his indication,
you know, that this isn’t -- you don’t have to make any
determination about the surgery being done wrong or anything
____________________________________________
6 Based on our review, the record does not support this assertion. The record
shows that Ms. Cunningham had argued that “[t]his is not a negligence case,
this is a consent case[,]” and insisted that “[i]t’s not at all about the standard
of care.” N.T. Status Conference, 3/6/19, at 53, 54.
- 14 -
J-A29015-19
like that in order to prove the case.[7] Well, the reality is that
there will be no criticism whatsoever of Dr. Picardo’s skill,
of her judgment, of her recommendations. There will be no
criticism of her surgical technique. There will be no
criticism of any decisions she made in treating [Ms.
Cunningham]. And that’s important, because you can
assume that her treatment was therefore within the
standard of care and appropriate. The only question in this
case is whether she treated [Ms. Cunningham] without her
consent.
See also Ms. Cunningham’s Brief at 19 (citing N.T. Trial, 3/13/19, at 32;
emphasis added in brief). In the defense’s closing statement, defense counsel
argued:
[Ms. Cunningham’s attorney] stood up here and told you at the
beginning of the case that he wasn’t going to criticize [Dr.]
Picardo’s competency, that this isn’t an allegation that she didn’t
use the standard of care, those are not the issues in this case.
Well, if those aren’t issues in this case, why are we talking about
qualifications again? Why are we talking about her experience
with that when she disclosed her experience as it related to that
gland? To suggest that she wasn’t experienced enough -- and he
said that in his opening, she was a young doctor, she wasn’t all
that experienced with surgery.[8] That’s standard of care. If
____________________________________________
7 During his opening statement, Ms. Cunningham’s counsel said:
Importantly, there’s no requirement to prove one way or the other
whether the surgery was done correctly or wrongly, good or bad.
That isn’t an element in this case. It’s not something that we’re
going to try to prove.
N.T. Trial, 3/13/19, at 20.
8 For context, in Ms. Cunningham’s opening statement, her counsel stated that
“in roughly 2010[,] Dr. Carla Picardo was a fairly young obstetrician-
gynecologist in Erie. She was working part time. She had at that point in her
career fairly limited surgical experience.” N.T. Trial, 3/13/19, at 21. Ms.
Cunningham then advanced a theory at trial that Dr. Picardo intentionally did
not tell Ms. Cunningham that she would be the lead surgeon because, as a
- 15 -
J-A29015-19
you’re … going to pursue a case like that, we’re not having the
same kind of discussion that we’re having in front of you.
My only reason for bringing that up, I told you at the beginning,
you are to assume this surgery was performed perfectly. It
was performed within the standard of care. There is no
question as to her skill, her judgment, her surgical
technique, known [sic] of that is at issue. Because if it was,
you would have heard from an expert witness who would
have offered opinions that she didn’t do those things
properly and that caused injury. The only question in front of
you is whether Dr. Picardo obtained her consent for this surgery.
Ms. Cunningham’s Brief at 20 (citing N.T. Trial, 3/14/19, at 103-04; emphasis
added in brief).
Regarding these references to standard of care in defense counsel’s
opening and closing statements, the trial court determined that Ms.
Cunningham had waived this claim by failing to make a timely objection at
trial. TCO at 4. Nevertheless, even if not waived, the trial court concluded
that this claim lacked merit as “no negligence evidence was admitted.” Id. at
6. Moreover, it reasoned that:
To the extent [Dr. Picardo’s] counsel mentioned “standard of care”
in her opening and closing arguments, this trial court’s reading to
this jury the following standard jury instructions adequately
conveyed to the jury the understanding that argument by either
____________________________________________
young surgeon, she wanted to obtain more surgical experience and feared
that Ms. Cunningham would not consent if she told her she would be in charge
of her surgery. See id. at 30 (“What we will prove to you is that Dr. Picardo
betrayed [Ms. Cunningham’s] trust, she exploited her vulnerability when she
was under anesthesia, she made [Ms. Cunningham] an unwilling practice
subject, she violated the law when she misled [Ms. Cunningham] about who
was going to be performing the surgery. [Ms. Cunningham is] disfigured, she
is uncomfortable with this disfigurement.”); id. at 90 (Ms. Cunningham’s
counsel: “Did you intentionally not tell [Ms. Cunningham] that you were going
to be the lead because you feared she might hesitate to consent and you
wouldn’t get the chance to do this [surgery]?”).
- 16 -
J-A29015-19
counsel was not evidence. Immediately before the opening
statements of counsel, this trial court stated:
THE COURT: The trial will proceed in the following manner:
First, the plaintiff’s lawyer will make an opening statement
to you. Next, the defendant’s lawyer will make an opening
statement. An opening statement is not evidence but
is simply a summary of what the lawyer expects the
evidence will show. The opening statements are
designed to highlight for you the disagreements and
factual differences between the parties in order to
help you judge the significance of the evidence when
it is presented.
Once the lawyers have made their opening statements, then
each party is given an opportunity to present its evidence.
Plaintiff goes first, because they [sic] have the burden of
proof[,] which I will discuss in greater detail later. The
plaintiff will present witnesses whom the lawyer for the
defendant may cross-examine. Following the plaintiff’s
case[,] the defendant may present its evidence and
plaintiff’s lawyer may cross-examine their [sic] witnesses.
After all the evidence has been presented, the lawyers
will present to you closing arguments to summarize
and interpret the evidence in an attempt to highlight
the significant evidence that is helpful to their client’s
[sic] positions. As with opening statements, closing
arguments are not evidence.
[N.T. Trial, 3/13/19, at 6-7]. Since [Ms. Cunningham] waived the
issue and this court instructed the jury that argument by counsel
is not evidence, [this] issue lacks merit.
Id. at 6-7 (emphasis added; emphasis added by trial court omitted).
At the outset of our review, we address whether Ms. Cunningham has
waived this issue by failing to object at trial. As she discerns, the trial court’s
ruling on her motion in limine allowed for ‘discussion’ pertaining to negligence
and the standard of care. See Ms. Cunningham’s Brief at 19 n.5; see also
Order, 3/11/19, at 1 (“‘Since Negligence Is Immaterial In A Consent Case,
- 17 -
J-A29015-19
There Should Be No Discussion Of Negligence Or The Standard Of Care’ is
hereby DENIED.”) (emphasis in original). While we recognize that a motion
in limine is a “device for obtaining rulings on the admissibility of evidence prior
to trial[,]” see Northeast Fence & Iron Works, Inc. v. Murphy Quigley
Co., Inc., 933 A.2d 664, 667 (Pa. Super. 2007) (emphasis added; citation
omitted), Ms. Cunningham explains that she did not object to the defense’s
purportedly improper argument in light of this ruling. See Ms. Cunningham’s
Reply Brief at 12 (“The court’s in limine ruling explicitly allowed the defense
to admit evidence and/or argue that Dr. Picardo was not negligent. Therefore,
at trial[, Ms. Cunningham’s] counsel could neither reasonably object nor
request a curative instruction to evidence or argument which had previously
been deemed admissible by the pre-trial ruling of the court.”). Under
Pennsylvania Rule of Evidence 103, “[o]nce the court rules definitively on the
record--either before or at trial--a party need not renew an objection or offer
of proof to preserve a claim of error for appeal.” Pa.R.E. 103(b). Here, despite
saying in its Rule 1925(a) opinion that it was taking a ‘wait and see’ approach
with this issue, the trial court definitively denied Ms. Cunningham’s motion in
limine regarding negligence, or at least appeared to do so in its order.
Consequently, we decline to deem Ms. Cunningham’s argument waived on the
basis that she did not renew her objection regarding the ‘discussion’ of
negligence at trial.
Therefore, we proceed to review the merits of Ms. Cunningham’s claim.
Though she states that we should apply the standard of review relating to the
- 18 -
J-A29015-19
denial of a motion in limine, see Ms. Cunningham’s Brief at 3, no evidence of
negligence was admitted at trial.9 Instead, the crux of her issue concerns the
purportedly prejudicial remarks made by Dr. Picardo’s counsel during her
opening and closing statements, which we have set forth supra. For such
claims, we apply the following standard of review:
The grant of a new trial because of counsel’s improper remarks is
within the discretion of the trial court. Stevenson v.
Pennsylvania Sports and Enterprise, Inc., … 93 A.2d 236
([Pa.] 1953); Harvey v. Hassinger, … 461 A.2d 814 ([Pa.
Super.] 1983). If the trial court determines that instructions to
the jury to disregard the remarks are sufficient, an appellate court
should be “reluctant to reverse since the trial judge is in a better
position to see and understand the atmosphere of the trial and the
effect the statement had on the jury.” Narcisco v. Mauch Chunk
Twp., … 87 A.2d 233, 234 ([Pa.] 1952). Whether the trial court
abused its discretion in denying a new trial will be determined by
“an examination of the remark made, the circumstances under
which it was made and the precautions taken by court and counsel
to remove its prejudicial effects.” Id. … at 234-[]35. See also
Clark v. Hoerner, 525 A.2d 377 ([Pa. Super.] 1987).
Hill v. Reynolds, 557 A.2d 759, 765-66 (Pa. Super. 1989).
We agree with Ms. Cunningham that a surgery without a patient’s
consent is a battery, and that negligence principles generally do not apply to
such matters. Indeed, our Supreme Court has explained:
“It has long been the law in Pennsylvania that a physician must
obtain informed consent from a patient before performing a
surgical or operative procedure.” Morgan v. MacPhail, … 704
A.2d 617, 619 ([Pa.] 1997), citing Sinclair v. Block, … 633 A.2d
____________________________________________
9 Ms. Cunningham does not complain of any specific testimony or other
evidence admitted at trial regarding negligence or standard of care. See Ms.
Cunningham’s Brief at 15-24 (complaining only of statements made in defense
counsel’s opening and closing statements).
- 19 -
J-A29015-19
1137 ([Pa.] 1993); Gray v. Grunnagle, … 223 A.2d 663 ([Pa.]
1966).
The informed consent doctrine requires physicians to
provide patients with “material information necessary to
determine whether to proceed with the surgical or operative
procedure or to remain in the present condition.”
Sinclair[,] 633 A.2d [at] 1140…. We have on several
occasions defined the nature of this “material information.”
We have stated that the information provided by a physician
must 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.” Gray[,] 223
A.2d [at] 674…. Thus, a physician must “advise the patient
of those material facts, risks, complications and alternatives
to surgery that a reasonable person in the patient’s situation
would consider significant in deciding whether to have the
operation.” Gouse v. Cassel, … 615 A.2d 331, 334 ([Pa.]
1992). A claim that a physician failed to obtain the patient’s
informed consent sounds in battery. Id.; see also
Morgan[, supra].
Duttry v. Patterson, … 771 A.2d 1255, 1258 ([Pa.] 2001)…. As
this Court has emphasized, the informed consent doctrine derives
from the very fact that surgical or operative procedures, if not
consented to, amount to a battery:
The rationale underlying requiring informed consent for a
surgical or operative procedure and not requiring informed
consent for a non-surgical procedure is that the
performance of a surgical procedure upon a patient without
his consent constitutes a technical assault or a battery
because the patient is typically unconscious and unable to
object.
Morgan…, 704 A.2d at 620, citing Gray…, 223 A.2d at 668-69.
See also Gouse…, 615 A.2d at 334 (“Lack of informed consent is
the legal equivalent to no consent; thus, the physician or surgeon
who operates without his patient’s informed consent is liable for
damages which occur, notwithstanding the care exercised[.]”).
Thus, this Court has made clear on repeated occasions over a
period of several decades that a claim based upon a lack of
informed consent involves a battery committed upon a patient by
a physician, an action which is distinct from a claim of a
- 20 -
J-A29015-19
consented-to, but negligently performed, medical treatment.
Since surgery performed without a patient’s informed consent
constitutes a technical battery, negligence principles generally do
not apply. It follows, of course, that a claim involving a surgical
procedure performed without any consent at all by the patient, …
also sounds in battery, and negligence requirements have no
bearing on the matter. Indeed, a claim concerning the lack of
consent for surgery can be maintained even where there is no
allegation of negligence in the actual performance of the
procedure. While negligence claims and informed consent claims
often co-exist in the same tort action, they need not do so. A lack
of informed consent or a lack of consent claim is actionable even
if the subject surgery was properly performed and the overall
result is beneficial.
Montgomery v. Bazaz-Sehgal, 798 A.2d 742, 748-49 (Pa. 2002) (emphasis
omitted).
Based on the foregoing, we agree with Ms. Cunningham that negligence
principles generally do not apply to informed consent cases. However, we
reiterate that Ms. Cunningham does not complain of any specific testimony or
other evidence admitted at trial regarding negligence or standard of care.
Moreover, Dr. Picardo persuasively observes that:
[I]n her [c]omplaint, [Ms. Cunningham] indicated that she
suffered medical damages as a result of the surgery performed by
Dr. Picardo. For instance, in [p]aragraph 34 of the [c]omplaint,
[Ms. Cunningham] alleges “as a consequence of the surgery
performed by Dr. Picardo, [Ms. Cunningham] has suffered painful
and severe injuries, which include, but are not limited to post-
surgical pain; disfigurement; and discomfort.” [Ms. Cunningham]
further alleged in [p]aragraph 37 of her [c]omplaint[] the
following: “As a result of the aforementioned injuries, [Ms.
Cunningham] has undergone, and in the future, will undergo great
physical and mental suffering, a great inconvenience in carrying
out her daily activities, loss of life’s pleasures and enjoyment, and
claim in (sic) made therefore.” [Ms. Cunningham] continued to
allege in paragraphs 38 and 39 that “she sustained lost time from
work, and lost opportunities, in addition to her persistent pain,
limitations, and/or disfigurement, and therefore, avers that her
- 21 -
J-A29015-19
injuries may be of a permanent nature, causing residual problems
for the remainder of her lifetime and claim is therefore.”
[Ms. Cunningham] argued that, based upon an alleged lack of
informed consent, a battery occurred, thus causing injuries
including disfigurement by an alleged improper removal of a
portion of [Ms. Cunningham’s] labia. [Ms. Cunningham’s]
contention that her disfigurement occurred in an area of her
anatomy allegedly not contemplated by Dr. Picardo’s surgery[] is
tantamount to a suggestion that the surgery was not performed
properly; otherwise, the unexpected injury would not have
occurred, particularly in an area which was not being operated
upon. [Dr. Picardo] therefore objected due to concern that [Ms.
Cunningham’s] damage claim might imply or suggest that the
surgery was performed improperly.
Dr. Picardo’s Brief at 16-18 (internal citations omitted).
As discerned by Dr. Picardo, Ms. Cunningham’s claim that her labia —
on which Dr. Picardo did not operate — had changed shape and become
disfigured from the surgery created a strong implication that Dr. Picardo did
not perform the surgery properly. Under such circumstances, defense
counsel’s comments in her opening and closing statements that the jury could
assume that Dr. Picardo’s treatment was within the standard of care and
appropriate do not strike us as improper nor prejudicial enough to warrant a
new trial. Further, in both statements that Ms. Cunningham complains of,
defense counsel immediately thereafter expressed to the jury that the “only
question” before it was whether Dr. Picardo treated Ms. Cunningham without
her consent. See N.T. Trial, 3/13/19, at 32 (“The only question in this case
is whether she treated [Ms. Cunningham] without her consent.”); N.T. Trial,
3/14/19, at 104 (“The only question in front of you is whether Dr. Picardo
obtained her consent for this surgery.”). By making such remarks, defense
- 22 -
J-A29015-19
counsel justifiably sought to convey to the jury that standard of care was not
at issue, and the singular question for them to resolve was the matter of
consent. Furthermore, as the trial court observed supra, it instructed the jury
that opening and closing statements were not evidence. See, e.g.,
Commonwealth v. Cash, 137 A.3d 1262, 1280 (Pa. 2016) (“It is well settled
that the jury is presumed to follow the trial court’s instructions….”) (citation
omitted). Accordingly, we conclude that the trial court did not err or abuse
its discretion in determining that the at-issue remarks by defense counsel do
not warrant a new trial.
Issue 2
In Ms. Cunningham’s second issue, she states that the trial court “erred
as a matter of law and abused its discretion when it failed to instruct the jury
that a doctor must inform a patient of all material ‘facts’ from which she can
make an intelligent choice as to her course of treatment. Instead, the trial
court limited the required information to material ‘risks’ of surgery.” See Ms.
Cunningham’s Brief at 12-13. She says that the trial court “denied [her]
proposed jury instructions numbered 4, 5, 8, 12, 16, and 18, among others,
and failed to give any instruction similar thereto.” Id. at 25 (footnote
omitted). Ms. Cunningham claims that “[t]hese instructions supported the
core of [her] case which was based on the fundamental legal proposition that
a patient has the right to ‘all material facts’ from which she can make an
‘intelligent choice as to her course of treatment’ and that a patient has the
right to choose the identity of her surgeon.” Id. (citations omitted). Further,
- 23 -
J-A29015-19
she argues that, by denying her proposed instructions, “the trial court usurped
the role of the jury[,] which is to determine what ‘facts’ are ‘material’ to a
patient in deciding whether to undergo surgery.” Id. at 13.
We apply the following standard of review to such claims:
Our standard of review regarding jury instructions is limited to
determining whether the trial court committed a clear abuse of
discretion or error of law which controlled the outcome of the case.
Error in a charge occurs when the charge as a whole is inadequate
or not clear or has a tendency to mislead or confuse rather than
clarify a material issue. Conversely, a jury instruction will be
upheld if it accurately reflects the law and is sufficient to guide the
jury in its deliberations.
The proper test is not whether certain portions or isolated excerpts
taken out of context appear erroneous. We look to the charge in
its entirety, against the background of the evidence in the
particular case, to determine whether or not error was committed
and whether that error was prejudicial to the complaining party.
In other words, there is no right to have any particular form of
instruction given; it is enough that the charge clearly and
accurately explains the relevant law.
Pledger by Pledger v. Janssen Pharmaceuticals, Inc., 198 A.3d 1126,
1146 (Pa. Super. 2018) (citations omitted).
Before addressing Ms. Cunningham’s sub-issues, we set forth, in
relevant part, the trial court’s jury instruction pertaining to informed consent:
In this case, the plaintiff has the burden of proving the following
claims: Number one, Dr. Picardo performed an operation on
plaintiff without her informed consent; number two, this
procedure was the cause in bringing about the harm or damages
as alleged; and number three, the extent of damages caused by
the procedure.
A physician must obtain a patient’s consent to surgery. Patient’s
consent must also be informed. A patient cannot make an
informed decision unless the physician explains the risks that a
reasonably prudent patient would need to know to make an
- 24 -
J-A29015-19
informed decision and the alternative choices. This is called
informed consent. A patient must have been given a description
of the proposed medical procedure or treatment and have been
informed about the risks of the procedure or treatment. The
patient must also be informed of the viable alternatives a
reasonable person would consider important to know in order to
make an informed decision about whether or not to undergo the
procedure, treatment, or operation.
The physician who is responsible for the performance of the
surgery cannot delegate to others her duty to provide sufficient
information to obtain the patient’s informed consent. The
physician must personally satisfy this obligation through direct
communication with the patient.
The patient is not required to prove she would have made a
different choice had the information been disclosed. The patient
must only prove the information not given to her would have been
a substantial factor in her decision to consent to the procedure or
treatment. The physician is responsible whether or not the
defendant physician intended to harm the plaintiff.
Informed consent requires direct communication between
physician and patient and contemplates a back and forth face-to-
face exchange.
N.T. Trial, 3/14/19, at 146-47.
Proposed Jury Instruction #8
To begin, Ms. Cunningham contends that the trial court erred when it
rejected her Proposed Jury Instruction #8, which stated the following:
#8. The primary point of informed consent is that the patient is
informed of all the material facts from which she can make an
intelligent choice as to her course of treatment. Shinal v. Toms,
162 A.3d[] 429, 453 (Pa. 2017).
Ms. Cunningham’s Brief at 26 (citations omitted; emphasis in brief). Ms.
Cunningham argues that the trial court “erroneously rejected the common law
based ‘material facts’ charge ([Ms. Cunningham’s] Proposed #8) and
substituted the more limiting ‘material risks’ charge found at [Pennsylvania
- 25 -
J-A29015-19
Suggested Civil Jury Instruction (“SSJI”)] 14.90.” Id. (citations omitted).10
She asserts that SSJI 14.90 “is predominantly applicable in cases where a
physician fails to warn a patient of potential surgical complications. No such
claim was made here.” Id. at 30. Instead, she says that “[her] claim was
based on the fact that she agreed to Dr. Stull[’s] performing her surgery, not
Dr. Picardo. SSJI 14.90 was, for the most part, inapplicable to [Ms.
Cunningham’s] claim.” Id. She maintains that “[t]he court erred by failing
to permit the jury to consider whether any other information, such as the
identity of the lead surgeon or the qualifications of that surgeon, might be a
material fact that the jury could determine as relevant to a reasonable
patient.” Id. at 40 (citations omitted).
The trial court explained that it denied Ms. Cunningham’s Proposed Jury
Instruction #8 because it provided the jury with the relevant portion of SSJI
14.90, and with part of Ms. Cunningham’s Proposed Jury Instruction #6, which
set forth that “[i]nformed consent requires direct communication between
physician and patient and contemplates a back and forth fac[e]-to-face
exchange.” See TCO at 12 (citations omitted). It reasoned that the
instruction “was properly read to this jury to apply to the facts as the jury
found them.” Id. at 13.
____________________________________________
10 SSJI 14.90 is contained in the trial court’s above-stated jury instruction
beginning at “A physician must obtain…[,]” through the paragraph starting
with “The patient is not required to prove….”
- 26 -
J-A29015-19
We discern no abuse of discretion or error of law that controlled the
outcome of the case. Ms. Cunningham contends that SSJI 14.90 is too limiting
and does not apply to her claim regarding the identity of her ‘primary’ or ‘lead’
surgeon. However, as Dr. Picardo points out “there was no testimony offered
that there is such a thing as a ‘primary’ or ‘lead’ surgeon. The only testimony
on this terminology was offered by the only witness competent to testify on
the subject, Dr. Picardo.” Dr. Picardo’s Brief at 28. At trial, Dr. Picardo
testified:
We don’t say I’m the lead surgeon. We don’t go into formalities
of titles with patients when we consent them. We say this is what
we’re going to do, these are the people who could be there. We
don’t say this person’s doing this, this person’s lead, this person’s
-- that’s not a typical conversation I have with any patients. It’s
not necessarily the formality of consent.
N.T. Trial, 3/13/19, at 80. She later expounded that:
Having the consent process with [Ms. Cunningham], I could -- by
being, again, the lead surgeon, the lead surgeon -- you’re using
the word lead surgeon, because we don’t use that term. It’s the
attending surgeon, which means the responsible surgeon, and I
took responsibility for everything leading up and afterwards.
When the consent is signed, in my mind, again, I didn’t know who
was going to be doing what part of the surgery because … once
you get into surgery, then you sort of see what’s going on. In my
mind, Dr. Stull was there to potentially remove the Bartholin’s
gland if I had difficulty finding it or I wanted a second pair of eyes
to make sure I had the right area. Because, again, the Bartholin
is so small it’s hard to find. I wanted to make sure it was done
properly, and that would have meant Dr. Stull may have taken
over that part of the surgery, whatever I felt was safest.
Id. at 84. According to Dr. Picardo, “[she] testified that she was the attending
physician, and as such, she and only she was solely responsible for obtaining
- 27 -
J-A29015-19
the patient’s informed consent.” Dr. Picardo’s Brief at 28; see also N.T. Trial,
3/13/19, at 73 (“[Y]ou don’t use the word lead, you use the word attending,
which was a lot of meaning what that entails.”); id. at 78 (“There’s the
attending, or the responsible, surgeon, which was me, because I did
everything that the attending[,] responsible surgeon would do. And Dr. Stull
was my assistant, but as an assistant[,] she basically could do a lot or a little
of the surgery.”).
Ms. Cunningham did not introduce evidence to counter Dr. Picardo’s
testimony and demonstrate that a ‘lead’ or ‘primary’ surgeon exists in the
medical community. Given the lack of proof that ‘lead’ or ‘primary’ surgeons
exist, we do not agree with Ms. Cunningham that the court erred by failing to
permit the jury to consider whether she should have been informed of her
‘lead’ or ‘primary’ surgeon.11 Accordingly, against the backdrop of evidence
____________________________________________
11 Ms. Cunningham argues that “it is up to the jury, not the court, to determine
what information a reasonable patient would find ‘material’ in order to make
an intelligent choice as to her course of treatment.” Ms. Cunningham’s Brief
at 38 (citing Festa v. Greenberg, 511 A.2d 1371, 1377 (Pa. Super. 1986);
Cooper v. Roberts, 286 A.2d 647, 651 (Pa. Super. 1971)). However, in
Festa, this Court determined that “[a]lthough expert medical testimony is not
mandatory to set forth the scope of a physician’s duty to disclose material
risks to a patient under the reasonable man standard, we conclude that such
testimony is required to establish the existence of risks in a specific medical
procedure, the existence of alternative methods of treatment and the
existence of risks attendant with such alternatives.” Festa, 511 A.2d at 1376
(emphasis omitted). Similarly, we conclude that expert testimony is
necessary to establish that a ‘lead’ or ‘primary’ surgeon exists. Only after that
existence is established may a jury determine if such information would be
material to a reasonable patient in making an intelligent choice as to
treatment.
- 28 -
J-A29015-19
adduced at trial in this matter, we do not conclude that trial court committed
a clear abuse of discretion or error of law which controlled the outcome of the
case by denying Ms. Cunningham’s Proposed Jury Instruction #8.
Proposed Jury Instructions #5 and #12
Next, Ms. Cunningham challenges the trial court’s rejection of her
Proposed Jury Instructions #5 and #12, which provide the following:
#5. For consent to be effective, it must be informed and
knowledgeable. In order for consent to be informed, there must
be a clear understanding by both parties of “the nature of the
undertaking and what the possible, as well as expected, results
might be.” McSorely v. Deger, 905 A.2d 524, 528 (Pa. Super.
2006).
#12. “Informed consent is the 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…[.] Only by
personally satisfying the duty of disclosure may the physician
ensure the consent truly is informed.” Shinal…, 162 A.3d at 453-
[]54.
Ms. Cunningham’s Brief at 41 (emphasis in brief; some citations omitted).
Ms. Cunningham argues that “[t]he informed consent doctrine does not
require a doctor to perform a sterile administrative checklist, but rather
embraces the concept of a two-way flow of essential information arising out
of the physician-patient relationship.” Id. at 40 (citation omitted). Ms.
Cunningham states that she “requested a jury instruction conveying this
concept to the jury in the form of [her] Proposed Jury Instruction[s] #5 and
#12.” Id. at 41. She claims these instructions were necessary because Dr.
- 29 -
J-A29015-19
Picardo did not communicate her understanding of the surgery to Ms.
Cunningham, and did not understand Ms. Cunningham’s concept of the
operation. See id. at 44. According to Ms. Cunningham, her Proposed Jury
Instructions #5 and #12 “would have clarified that informed consent extends
beyond SSJI 14.90’s risks, alternatives and description[,] requiring a doctor
to ensure ‘a clear understanding by both parties of the nature of the
undertaking’ … and ‘to familiarize himself or herself with the patient’s
understanding and expectations’….” Id. at 45.
The trial court rejected both instructions on the basis that SSJI 14.90
adequately stated the relevant law and provided the necessary guidance for
the jury to apply to the facts it found. See TCO at 11, 14. We agree. SSJI
14.90 sufficiently imparts that the doctor must directly communicate and
discuss the proposed medical procedure with the patient. Further, we observe
that the trial court read Ms. Cunningham’s Proposed Jury Instruction #6,
which stated that “[i]nformed consent requires direct communication between
physician and patient and contemplates a back and forth fac[e]-to-face
exchange.” TCO at 12 (citations omitted). We also reiterate that “there is no
right to have any particular form of instruction given; it is enough that the
charge clearly and accurately explains the relevant law.” See Pledger,
supra. Accordingly, no relief is due.
Proposed Jury Instruction #4 and #16
Ms. Cunningham next complains that the trial court improperly rejected
her Proposed Jury Instructions #4 and #16, which state:
- 30 -
J-A29015-19
#4. A patient may specifically limit his or her consent to an
invasive medical procedure to a particular surgeon. Taylor v.
Albert Einstein Medical Center, 723 A.[2]d 1027, 1034 (Pa.
Super. 1998)[12]; Grabowski v. Quigley, 684 A.2d 610, 617 (Pa.
Super. 1996) (“If the patient is not informed as to the identity of
the operating surgeon, the situation is a [‘]ghost surgery[.’]”).
#16. “The patient is entitled to choose his own physician
and he should be permitted to [agree to] or refuse to
accept [a] substitution…[.] The patient is entitled to the
services of the particular surgeon with whom he or she
contracts…[.] If the surgeon employed merely assists the … other
physician in performing the operation, it is the … other physician
who becomes the operating surgeon. If the patient is not
informed as to the identity of the operating surgeon, the situation
is an [impermissible] ‘ghost surgery’.” Taylor, [723 A.2d] at
1036; Grabowski, [684 A.2d] at 617.
Ms. Cunningham’s Brief at 46, 49 (emphasis in brief; citations omitted).
Ms. Cunningham argues that “by refusing to give [her] Proposed Jury
Instructions #4 and #16, the trial court … erroneously ruled that the identity
of the surgeon who was to perform the procedure was irrelevant to the issue
of informed consent.” Id. at 56. Further, she says that, “[a]s a result of the
denial of both #4 and #16, the defense was able to argue that the division of
labor during surgery is none of the patient’s business, [and] that this
information is never relayed to the patient, nor should it be.” Id. at 49-50
(citations omitted). She contends that “[t]he trial court’s failure to instruct
the jury as to [her] Proposed Jury Instructions #4 and #16 was a reversible
error of law which controlled the outcome of the case.” Id. at 57.
____________________________________________
12We note that our Supreme Court reversed in part this decision on other
grounds in Taylor v. Albert Einstein Medical Center, 754 A.2d 650 (Pa.
2000).
- 31 -
J-A29015-19
In denying Ms. Cunningham’s Proposed Jury Instructions #4 and #16,
the trial court explained:
Both the Taylor and Grabowski cases involved factually different
situations from the instant case. In Taylor, the patient’s mother
alleged she had given consent to perform invasive surgery to Dr.
Wertheimer, not to Dr. Trinkaus. In fact, when Dr. Trinkaus was
specifically asked by the patient’s father who would perform [the]
surgery, Dr. Trinkaus unequivocally stated Dr. Wertheimer would
perform the catheterization. However, Dr. Trinkaus performed
the catheterization with Dr. Wertheimer’s assistance. [13] In
Grabowski, [the] patient sued three physicians for battery,
medical malpractice, breach of oral contract, and vicarious
liability. [The p]atient alleged [that the] first physician agreed to
perform herniated disc surgery; [the] second physician actually
performed [the] majority of surgery due to [the] first physician’s
unavailability; and a third physician instructed [the] second
physician to perform surgery. The consent form which [the
patient] signed stated surgery would be “performed under the
direction of Dr. Quigley, et al[.”] [The patient] testified “et al[,]”
which was handwritten, looked to him like “ETOL[,”] and that the
patient did not know what those words meant until his counsel
explained them to him at a deposition. Moreover, the records in
Grabowski reflected [that] the first physician who obtained the
informed consent was unavailable for the procedure so he
delegated to a second physician, unknown to the patient, who
performed the bulk of the surgery. The first surgeon was not even
on the premises but was in another county at the time the patient
was placed under anesthesia. In the instant case, clearly all three
surgeons’ names are listed on the [i]nformed [c]onsent [f]orm
____________________________________________
13Dr. Picardo adds that Taylor “involved two surgeons having the informed
consent discussion with the [p]laintiff, and the [p]laintiff consenting to the
surgery by the more experienced surgeon. In this case…, it is undisputed that
only Dr. Picardo held the informed consent discussion with [Ms.] Cunningham.
Dr. Stull never spoke with [Ms. Cunningham] at any time prior to the surgery.”
Dr. Picardo’s Brief at 31-32. We also observe that there was no written
consent form in Taylor, and we reiterate that the patient’s mother in that
case alleged that she had given consent to perform the invasive procedure
only to the more experienced surgeon and not to the lesser experienced
surgeon who actually performed the surgery. Taylor, 723 A.2d at 1031,
1034, 1036.
- 32 -
J-A29015-19
that [Ms. Cunningham] signed after discussing this form with [Dr.
Picardo]. [Dr. Picardo] did not delegate to another surgeon to
perform this surgery. Therefore, this trial court read to this jury
[SSJI] 14.90 … and instructed the jury as follows:
THE COURT: The physician who is responsible for the
performance of the surgery cannot delegate to others her
duty to provide sufficient information to obtain the patient’s
informed consent. The physician must personally satisfy
this obligation through direct communication with the
patient.
[N.T. Trial, 3/14/19, at 146-47]. See also [id. at 138-60].
With the trial court’s reading of all the given jury instructions, and
specifically [SSJI] 14.90…, the jury in the instant case was
properly and adequately informed that the physician who is
responsible for the procedure must be the physician who obtained
the patient’s informed consent. Moreover, … after [Dr. Picardo]
discussed the [i]nformed [c]onsent form with [Ms. Cunningham],
[Ms. Cunningham] signed the [i]nformed [c]onsent form with all
three surgeons — Dr. Picardo, Dr. Stull, and Dr. Tseng — listed
near the top of the form. Dr. Picardo and Dr. Stull then performed
the surgery on [Ms. Cunningham]. The jury in the instant case
found Dr. Picardo obtained informed consent from [Ms.
Cunningham] to perform this surgery; therefore, this trial court
did not “circumscribe the jury’s duty by limiting any material or
relevant facts” with this jury instruction which provides the law,
not facts.
TCO at 9-10 (formatting slightly modified); see also id. at 15-16.
Ms. Cunningham has not convinced us that the trial court committed an
error of law or abuse of discretion. We agree with the trial court that Taylor
and Grabowski are distinguishable. Unlike the circumstances in Taylor and
Grabowski, the issue here is not whether Dr. Stull obtained consent and then,
without Ms. Cunningham’s permission, delegated the surgery to Dr. Picardo
or allowed Dr. Picardo to substitute for her. Instead, the issue here is whether
Dr. Picardo obtained Ms. Cunningham’s informed consent to perform the
- 33 -
J-A29015-19
surgery, which presented a factual dispute for the jury to decide, largely based
upon how it reconciled the differing accounts of the January 26, 2011
conversation between Dr. Picardo and Ms. Cunningham about the surgery.14
Further, to the extent Ms. Cunningham complains that because the trial court
denied her Proposed Jury Instructions #4 and #16, the defense could argue
that physicians never relay the division of labor to patients, we repeat that
Ms. Cunningham produced no evidence at trial to the contrary. Thus, we
determine that the trial court did not err and abuse its discretion in denying
Ms. Cunningham’s Proposed Jury Instructions #4 and #16. No relief is due
on this basis.
Issue 3
In Ms. Cunningham’s third issue, she argues that the trial court erred
“when it refused to instruct the jury that a patient must be correctly advised
of the professional credentials, training and experience of her primary
surgeon.” Ms. Cunningham’s Brief at 57 (unnecessary capitalization and
____________________________________________
14 Cf. N.T. Trial, 3/13/19, at 170-71 (Ms. Cunningham’s recalling that Dr.
Picardo asked her “if she could scrub in to be there”) with id. at 79 (Dr.
Picardo’s stating that she thought it was “pretty obvious” that she would
attend the surgery because “during the discussion about what would happen
during the surgery, which is part of the consent, I use the words ‘I’ and ‘we’
typically. So we’re going to make an incision here, we’re going to then dissect
down, go through the tissue until we find the gland…. And I would have
explained everything in ‘I’ or ‘we,’ those terms, instead of Dr. Stull will do this,
Dr. Stull will do that. Because if Dr. Stull were going to be the one taking the
lead, then Dr. Stull both legally and also for [the] best care of the patient
would take over the whole consent process”).
- 34 -
J-A29015-19
emphasis omitted). Ms. Cunningham explains that her Proposed Jury
Instruction #18, which set forth SSJI 14.100, provided that:
INFORMED CONSENT – MISREPRESENTATION OF
PHYSICIAN’S PROFESSIONAL CREDENTIALS, TRAINING
OR EXPERIENCE
A physician is required to obtain the patient’s informed consent to
proceed with surgery. A patient’s consent is not informed if the
physician knowingly misrepresents her professional credentials,
training, or experience.
The patient is not required to prove that she would have chosen
differently, had the physician disclosed her true credentials,
training, or experience. The patient must prove only that the
misrepresentation was a “substantial factor” in the decision
whether or not to undergo the procedure or treatment.
A physician may not argue as a defense that a reasonable person
would have agreed to undergo the procedure or treatment even
had the physician disclosed her true credentials, training, or
experience. What a reasonable person would have chosen to do
is irrelevant. The patient has the right to choose.
Ms. Cunningham’s Brief at 57-58 (citations omitted).
Ms. Cunningham contends that “[t]his case presents a unique situation.
Here, Dr. Picardo did accurately provide her qualifications (i.e.[,] that she had
never done the procedure before) and she did accurately provide Dr. Stull’s
qualifications (that Dr. Stull had done the procedure before and felt
comfortable doing it on [Ms.] Cunningham).” Id. at 58. However, according
to Ms. Cunningham, “Dr. Picardo then misled [Ms.] Cunningham as to which
doctor would actually perform the procedure.” Id. Ms. Cunningham claims
that “[i]t defies logic to say that informed consent was satisfied where a
patient was correctly informed of Dr. Picardo’s lack of experience and correctly
informed of Dr. Stull’s ample experience, but then completely misled as to
- 35 -
J-A29015-19
which doctor was to perform the operation.” Id. at 58-59. She says that “[i]t
cannot be that the law prohibits misrepresentation of a surgeon’s credentials
but allows misrepresentation of the identity of the surgeon.” Id. at 59.
The trial court explained why it denied this instruction as follows:
[D]espite evidence indicating that Dr. Picardo did not
misrepresent her personal credentials as to training and
experience, [Ms. Cunningham] argued [that] Dr. Picardo
misrepresented who would be the surgeon. Additionally, no
evidence was presented that Dr. Picardo misrepresented her
“true” professional credentials, training, or experience. Since
[there was] no evidence of any misrepresentation by [Dr.
Picardo], this jury instruction was not appropriate. [Ms.
Cunningham] also argued that she was “not accurately advised of
the identity of the surgeon who would be performing the surgery
on her.” Assuming arguendo this statement as true, this
requested suggested standardized civil jury instruction is not
proper or applicable as this instruction does not contemplate the
type of misrepresentation alleged by [Ms. Cunningham]. [Ms.
Cunningham’s] issue as to [P]roposed [J]ury [I]nstruction #18
was properly denied and lacks merit.
TCO at 17.
We discern no abuse of discretion or error of law in the trial court’s
analysis. As the trial court stated, Ms. Cunningham’s Proposed Jury
Instruction #18/SSJI 14.100 does not pertain to the type of misrepresentation
alleged by Ms. Cunningham. Accordingly, no relief is due on this basis either.
Judgment affirmed.
Judgment Entered.
- 36 -
J-A29015-19
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/27/2020
- 37 -