dissenting:
I respectfully dissent. In my view, the district court gave an erroneous jury instruction on informed consent; the plaintiffs properly preserved their objection to that instruction; and the error was not harmless. Accordingly, I'would reverse and remand for a new trial on informed consent.
Under Pennsylvania law, a physician who operates without' consent commits a battery and is liable for any injuries proximately caused by the operation. Gouse v. Cassel, 532 Pa. 197, 202-04, 615 A.2d 331, 333-34 *398(1992); Gray v. Grunnagle, 423 Pa. 144, 166, 223 A.2d 663, 674 (1966). The physician’s liability is not limited to the injuries proximately caused by the lack of consent. Thus, if a patient consented to an operation by physician A, but physician B actually performed the operation, the physicians could not defend themselves by arguing that the lack of consent did not proximately cause the patient’s injuries because those injuries would have occurred even if physician A had performed the operation.
Here, the plaintiffs requested that the district court give an instruction based on Pennsylvania Standard Jury Instruction, Civil § 10.06, which correctly sets out the legal principles noted above.1 The district court did not conduct a charge conference. Instead, the court told counsel that he would cover their requested instructions “in [his] own words” and that he would “see counsel at side bar after [he had] charged the jury to hear any objections that they have to the charge.” App. at 693a. The court added without elaboration: “I will submit to the jury whether Doctors Drummond and Segal improperly failed to obtain the informed consent of the plaintiffs.” Id.
In instructing the jury, the court began by reviewing the verdict sheet. For present purposes, two questions on the verdict sheet are important. Question 3 asked: “Did either [Dr. Drummond or Dr. Segal] improperly fail to obtain the informed consent of the plaintiffs?” App. at 771a. Question 6 asked: “What compensatory damages do you award the plaintiffs?” Id. at 772a. The court subsequently focused on Question 3 and stated the following:
Now let me explain to you about informed consent which is Question 3.
A physician must obtain a patient’s informed consent to perform health care services upon that patient. A physician who medically treats a patient without informed consent commits battery and is liable for all injuries the patient suffers as a result of that treatment, regardless of the care.
There are two parts to the informed consent.
First, the physician is bound to disclose to the patient all of those facts which a reasonable man in a situation which the doctor knew or should have known to be his patient’s situation would consider important in his decision whether to undergo treatment.
This standard requires a doctor to inform a patient of the nature of the proposed procedures and of the risks involved in that treatment. Alternative methods of treatment should be disclosed and the second part of informed consent is that after the patient has been given all of this information, the patient must agree to the treatment.
If you find that the [sic] there was no such informed consent, then you must determine whether that failure was a substantial factor in causing the injuries.
So as to Question 3, you must determine whether the two physicians obtained the informed consent of the parents of Benjamin Houck before performing the operation and you answer that yes or.no depending on what you find in that regard.
Now on to Question 4....
I'd. at 777a-78a.
In my view, the highlighted portion of this instruction is contrary to the legal principles discussed above. Under this instruction, a physician who operates without consent is not liable for all of the injuries proximately caused by the operation, as Pennsylvania law provides, but only for those injuries proximately caused by the lack of informed consent. Thus, under this instruction, if a patient consented to an operation by physician A but physician B actually performed the operation, the physicians could defend themselves by arguing that the lack of informed •consent did not proximately cause the pa*399tient’s injuries because those injuries would have occurred no matter which physician performed the operation. While the district court provided an accurate explanation of the relevant legal principles in an earlier portion of its charge,2 I believe that the charge, taken as a whole, had a substantial potential to mislead the jury, particularly in light of the evidence on informed consent, which I discuss below. See Bennis v. Gable, 823 F.2d 723, 727 (3d Cir.1987); Link v. Mercedes-Benz of N. Am., Inc., 788 F.2d 918, 922 (3d Cir.1986).
After the judge had completed the instructions, plaintiffs’ counsel again asked that the court give a number of the instructions that he had previously requested, including the instruction based on Pennsylvania Standard Jury Instruction, Civil § 10.06, but in each instance the court responded without further explanation: “I’ll stand on the charge.” App. at 785a. In fact, the court responded with that same phrase to virtually every request or objection concerning the instructions made by any attorney. See id. at 785a-87a. Under these circumstances, I believe that the plaintiffs sufficiently preserved their objection to the court’s instruction concerning informed consent.
The majority does not hold that the court’s instruction was correct or that the plaintiffs failed to preserve their objection. Without reaching those questions, the majority concludes that any error in the instruction did not affect the jury’s verdict. Noting that the portion of the instruction in question concerns causation, the majority reasons that “when the jury found in the negative on informed consent, the causation issue became irrelevant.” Maj. at 397. I am unable to agree with this reasoning because, as I believe the excerpt from the jury instructions quoted above makes clear, the error occurred during the portion of the instructions devoted to Question 3, which concerned informed consent, not Question 6, which concerned compensatory damages. Just before giving the erroneous instruction, the court stated: “Now let me explain to you about informed consent which is Question 3.” App. at 777a (emphasis added). And just after giving the erroneous instruction, the court summarized: “So as to Question 3 ...” and then stated: “Now on to Question 4.” Id. at 778a.
Finally, I do not think that the error in the jury instruction was harmless. The evidence that the Houcks consented to have Dr. Segal perform the operation on their child was, in my view, thin. Indeed, were it not for the inferences that the jury was permitted to draw concerning a consent form that one of the Houcks might have signed, I would conclude that the Houcks were entitled to judgment as a matter of law. Although unable to produce any signed consent form for the operation in question, the hospital did introduce a copy of the form that it customarily used, and this form authorized surgery by the named physician “and whomever he/she may designate.” In addition, the Houcks testified that they signed some forms prior to the operation. App. at 157a, 568a. Thus, the jury could have rationally concluded that the Houcks signed a copy of the hospital’s standard consent form and that this form authorized surgery by Dr. Drummond or his designee, Dr. Segal.
There was, however, strong evidence that the Houcks had orally conditioned their consent on the performance of the surgery by Dr. Drummond himself. The Houcks specifically sought out Dr. Drummond on the recommendation of a physician in Ohio, and both parents, while acknowledging that they had been aware that Dr. Segal would be present during the operation (App. at 191a, 576a-77a), nevertheless testified emphatically that Dr. Drummond orally promised them that he would perform the surgery himself. Mrs. Houck testified as follows:
Q. Was there any discussion between you and Dr. Drummond about who was going to operate?
A. Yes, there was. We always wrote down a lot of questions before we went to talk to the doctor and one of the questions I asked him, I said, will you, *400yourself, perform this surgery. And he promised me that he would.
Q. Had he not given you that promise, would you have allowed Ben to be operated on?
A. .No.
App. at 155.
On cross-examination, she testified as follows:
Q. Is it fair to say that you had asked Dr. Drummond if he was going to do the surgery and he said he was going to be the surgeon?
A. He promised me he would be the one to do it.
Q. And he used the word “promise”?
A. Yes.
Q. Is that what he said? He said: “I promise you?”
A. He said: “I will do it.”
Id. at 192a.
Similarly, Mr. Houck testified as follows:
Q. Were you there during any conversation regarding who was going to operate?
A. Yes.
Q. What was the conversation—
A. This would have been the final visit with Dr. Drummond prior to the surgery and we asked Dr. Drummond who was going to be doing the operation. In fact, we had questions written down, and one of the questions was: ‘Will you personally be performing the operation?” And he said: ‘Yes, I will.”
Q. And did it ever occur to you or did anyone ever give you any information while you were there that would lead you to believe that someone else would do any of — could do any of the cutting?’
A. No, not at all.
Q. Did it ever occur to you that a fellow or a trainee would do the cutting?
A. That had never crossed our minds. Our concern was that one of the other staff surgeons would do it. It didn’t even enter our minds that a resident or someone else would do it.
Id. at 548a — 49a.
Dr. Drummond was unable to testify that these conversations did not occur. He stated that he did not recall any such discussion (App. at 314a), but he did testify concerning his customary practice when parents asked him whether he would personally perform the surgery on their children. According to Dr. Drummond, he “[u]sually” gave them the following “line”: “[W]e need help to do these complex procedures.... I can’t do these procedures alone.” Id. at 302a-03. He volunteered, however, “I don’t go out of my way to say Dr. X is going to be here and Dr. Y is going to do this.” Id. Later, he added: “If I’m asked whether I will do the surgery, I’ll say yes, I’m the surgeon but I need an assistant’s help. ” Id. at 314a (emphasis added).
The evidence at trial did not show that Dr. Drummond fulfilled the promise that, according to his testimony, he customarily gave to parents who asked whether he would personally perform- the surgery on their children. The evidence did not show that he performed the surgery on Benjamin Houck with Dr. Segal’s assistance. Rather, the testimony showed that Dr. Segal was the one who physically performed all or virtually all of the operation. Dr. Segal testified that he performed the incision, the exposure and approach to the femur, and the actual cutting of the femur. App. at 337a — 40a. The scrub nurse corroborated this testimony. Id. at 203a-08a, 229a-32a. Even Dr. Drummond did not testify that he physically performed the operation. Instead, he said simply that he “was in charge and actively participating.” Id. at 246a.
In sum, according to Dr. Drummond’s own testimony, his actual role during the operation — he “was in charge and actively participating” (App. at 246a) — was quite different from what he customarily promised parents he would do — that he would be “the surgeon” but would “need an assistant’s help.” Id. at 314a. Consequently, I think there is a substantial danger that the court’s erroneous instruction concerning informed consent affected the jury’s verdict. I would therefore *401reverse the order of the district court with respect to the issue of informed consent and remand for a new trial on this issue.
. The requested instruction stated:
When a patient is in possession of his or her faculties and is physically able to consult about his condition, and when no medical emergency exists, the patient's consent is legally required for the physician to be able to proceed with an invasive procedure. A physician who performs an invasive procedure without his patient's informed consent has committed a battery on his patient and is liable for any injuries caused by that battery, even though the procedure is performed with proper skill and care.
. The court stated: “A physician who medically treats a patient without informed consent commits a battery and is liable for all injuries the patient suffers as a result of that treatment regardless of the care.” App. at 777a.