J-A29015-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

GINGER CUNNINGHAM 

Appellant

v.

CARLA PICARDO, M.D.

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 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. 
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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/symptomscauses/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. 
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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 
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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 
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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 
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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. 

____________________________________________

3 The 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. 
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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?
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[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 
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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 
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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. 
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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.
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[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). 
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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. 

***
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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. 
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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 obstetriciangynecologist 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 
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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]?”). 
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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, 
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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 
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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). 
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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 
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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 postsurgical 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 
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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 
J-A29015-19

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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, 
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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 
J-A29015-19

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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-toface 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 
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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....” 
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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 
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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. 
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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. 
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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:
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#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.

____________________________________________

12 We 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). 
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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 

____________________________________________

13 Dr. 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. 
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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 
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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”). 
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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 
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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.
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Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/27/2020