SHANTICE TILLERY, IN HER OWN RIGHT AND PARENT AND NATURAL GUARDIAN ON BEHALF OF HER MINOR SON, SHAMIR D. TILLERY
THE CHILDREN'S HOSPITAL OF PHILADELPHIA, CHILDREN'S HEALTHCARE ASSOCIATES, INC., MONIKA GOYAL, M.D., JOEL FEIN, M.D., KYLE NELSON, M.D. APPEAL OF: THE CHILDREN'S HOSPITAL OF PHILADELPHIA AND MONIKA GOYAL, M.D.
from the Judgment Entered April 15, 2016 in the Court of
Common Pleas of Philadelphia County Civil Division at No.:
December Term, 2011 No. 02168
BEFORE: DUBOW, J., RANSOM, J., and PLATT, J. [*]
The Children's Hospital of Philadelphia (CHOP) and Monica
Goyal, M.D., appeal from the judgment entered in favor of
Appellee, Shantice Tillery, in her own right and as parent
and natural guardian on behalf of her minor son, Shamir D.
Tillery (Minor-Plaintiff), pursuant to the jury's
verdict. We affirm.
take the following factual and procedural background from the
trial court's April 15 and June 3, 2016 opinions.
On December 21, 2009, eleven month old [Minor-Plaintiff] went
to the [CHOP] Emergency Department suffering from fever and
difficulty breathing. He was sent home a few hours later with
a differential diagnosis including upper respiratory
infection and cough with a less likely differential diagnosis
of pneumonia. Minor-Plaintiff returned to CHOP the next day,
suffering from worsening symptoms, including high fever,
irritability, increasing pulse and respiratory rates,
dehydration, and lethargy. He was examined by the attending
physician, [Dr. Goyal], and several nurses. [Dr.] Goyal
ordered chest x-rays and ruled out pneumonia and viral upper
respiratory infections as causes of the symptoms. Without any
further diagnostic testing, [Minor-Plaintiff] was discharged
with a treatment plan consisting of supportive care, a
follow-up with a primary physician and return to emergency
Minor-Plaintiff returned to CHOP Emergency Department the
next day, December 23, 2009, at 8:43 p.m. After several
examinations by nurses, Minor-Plaintiff was examined by Ram
Bishnoi, M.D. at 9:09 p.m. and again at 10:19 p.m. Over an
hour later, at approximately 11:25 p.m. that same evening,
the attending physician,  Dr. Kyle Nelson  noted that
Minor-Plaintiff had been seen in the ER the two previous days
and was diagnosed with bronchiolitis. Dr. Nelson's
differential diagnosis included fever, bronchiolitis,
possible pneumonia, possible serious bacterial infection, and
possible dehydration. Dr. Nelson offered a treatment plan
including IV fluids, checking labs, and reassessing for a
possible lumbar puncture. Nearly an hour later, at 12:20 a.m.
on December 24, 2009, [Minor-Plaintiff] was transferred to
another attending physician,  Dr. Joel Fein . Blood tests
revealed elevated white blood cell counts and an elevated
C-reactive protein [(CRP)]. [Minor-Plaintiff's] condition
also continued to deteriorate despite fluid intake. Thus, Dr.
Fein ordered a lumbar puncture, which was not completed until
nearly three hours later at 3:03 a.m. The lumbar puncture
results led to a diagnosis of meningitis and antibiotics were
Shortly after 5:00 a.m., [Minor-Plaintiff] was admitted to
the CHOP [Pediatric Intensive Care Unit (PICU)]. He was later
diagnosed with streptococcus pneumoniae meningitis, bilateral
hearing loss, and brain damage.
[Minor-Plaintiff's] mother, [Appellee], initiated this
medical malpractice litigation in May, 2012 against CHOP,
[Dr.] Goyal, [Dr.] Fein, and [Dr.] Nelson for various claims
For over five weeks from October 19, 2015 to November 16,
2015, [the trial c]ourt presided over the trial of this
medical malpractice action. On November 16, 2015, the jury
found in favor of [Appellee] and against  CHOP and [Dr.]
Goyal, but found in favor of [Dr.] Nelson and [Dr.] Fein. The
jury found that the negligence of CHOP and [Dr.] Goyal [was]
the factual cause of the harm to Minor-Plaintiff. The jury
assessed 40% of the negligence to [Dr.] Goyal and 60% of the
negligence to CHOP for the treatment rendered by resident Ram
Bishnoi, M.D. The jury awarded a total verdict of $10, 138,
000.00 divided up as: (1) $1, 120, 000.00 for
Minor-Plaintiff's future loss of earnings and earning
capacity; (2) $7, 500, 000.00 for Minor-Plaintiff's past
and future pain and suffering, embarrassment and humiliation,
disfigurement, and loss of enjoyment of life and life's
pleasures; and (3) $22, 000.00 per year for the years
2016-2085 for Minor-Plaintiff's future medical and other
related expenses (for a total of $1, 518, 000.00).
(Trial Court Opinion, 4/15/16, at 3-4).
[Appellee] filed a Written Post-Trial Motion for Delay
Damages on November 23, 2015 and [Appellants] filed their
Post-Trial Motions on November 30, 2015[, ] with a
Supplemental Post-Trial Motion filed on January 19, 201.
The [c]ourt held oral argument on April 12, 2016. On April
1,  th[e c]ourt entered an Order denying
[Appellants'] Post-Trial Motions. Pursuant to Rule
227.1(a)(2) of the Pennsylvania Rules of Civil Procedure and
the 1983 Comments, th[e c]ourt entered a Judgment Order in
favor of [Appellee] and against [Appellants] in the sum of
$11, 391, 640.08.
On [April 27], 2016, [Appellants] filed an Emergency Motion
to Vacate Judgment. On May 12, 2016, the[e c]ourt denied the
Motion. That same day, [Appellants] filed a Notice of Appeal
regarding the [c]ourt's April 1 [o]rder denying
[their] Post-Trial Motions. On June 3, 2016, th[e c]ourt
filed an Opinion in accordance with Rule 1925(a) of the
Pennsylvania Rules of Appellate Procedure in response to
[Appellants'] appeal. [The court did not order Appellants
to file a Rule 1925(b) statement of errors complained of on
appeal. See Pa.R.A.P. 1925.]
(Trial Court Opinion, 6/03/16, at 2).
Appellants raise five questions for this Court's review.
1. Whether [Appellants] are entitled to JNOV where
[Appellee's] experts' opinions were based solely on
their own experience and expertise, not scientific or
empirical evidence, and, hence, were both inadmissible and
insufficient to establish causation under Rohm & Haas
Co. v. Snizavich, 83 A.3d 191, 195 (Pa. Super. Ct.
2. Whether the trial court erred by failing to instruct the
jury on the "two schools of thought doctrine" in
determining whether the standard of care required
[Appellants] to treat a bacterial infection with steroids, in
circumstances where [Appellee's] and [Appellants']
medical experts presented two competing views regarding this
subject and where [Appellee's] own expert admitted that
use of steroids in treating meningitis was
"controversial" at the time of
3. Whether the trial court erred in allowing [Appellee's]
counsel to read to [Dr. Poe] a totally irrelevant hearsay
statement taken in 2013 from [CHOP's] website, where the
statement, which post-dated the treatment by four years, was
used to establish the standard of care and, hence, caused
[Appellants] great prejudice?
4. Whether the trial court erred in allowing [Appellee's]
neuro-otologist expert to present standard of care expert
testimony against [Appellant] pediatric emergency medicine
physicians in circumstances where [Appellee's] expert was
neither board-certified nor practiced in the same
sub-specialty as [Appellant] physicians, was not engaged in
practice in emergency room settings in the hospitals where he
worked, was not familiar with the standard of care and hence,
was not qualified under MCARE to present expert testimony
against the [Appellant] physicians?
5. Whether the trial court erred by not reducing the
excessive verdict and in not reducing [Minor-Plaintiff's]
future medical expenses to present value before entering
judgment as required by MCARE for purposes of calculating the
judgment and delay damages?
(Appellants' Brief, at 5-6) (emphases omitted).
their first issue, Appellants challenge the trial court's
denial of their motion for judgment notwithstanding the
verdict (JNOV). (See id. at 5; 20-32). Our standard
of review of this claim is well-settled.
Our standard of review of an order denying judgment n.o.v. is
whether, reading the record in the light most favorable to
the verdict winner and granting the benefit of every
favorable inference, there is sufficient competent evidence
to support the verdict. Any conflict in the evidence must be
resolved in the verdict winners' favor. Judgment n.o.v.
may be granted only in clear cases where the facts are such
that no two reasonable minds could fail to agree that the
verdict was improper.
Miller v. St. Luke's Univ. Health Network, 142
A.3d 884, 896 (Pa. Super. 2016) (citations omitted).
case, Appellants argue that that the court should have
granted their motion for JNOV where Appellee's experts
offered opinions based solely on their expertise, not on
science or empirical evidence. (See Appellants'
Brief, at 20-32). Specifically, Appellants observe that,
"[a]s in all medical malpractice cases, [Appellee]
[bore] the burden of proving a causal connection between
[Appellants'] alleged wrongful act and
[Minor-Plaintiff's] injuries." (Id. at 20)
(footnote omitted). Therefore, they claim that
"[Appellee's] failure to prove causation through
admissible, competent evidence requires entry of JNOV in
[Appellants'] favor." (Id.).
Appellants' claim lacks merit.
Because medical malpractice is a form of negligence, to state
a prima facie cause of action, a plaintiff must
demonstrate the elements of negligence: a duty owed by the
physician to the patient, a breach of that duty by the
physician, that the breach was the proximate cause of the
harm suffered, and the damages suffered were a direct result
of harm. With all but the most self-evident medical
malpractice actions there is also the added requirement that
the plaintiff must provide a medical expert who will testify
as to the elements of duty, breach, and causation.
Fessenden v. Robert Packer Hosp., 97 A.3d 1225, 1229
(Pa. Super. 2014), appeal denied, 113 A.3d 280 (Pa.
2015) (citation omitted).
An expert witness proffered by a plaintiff in a medical
malpractice action is required to testify to a reasonable
degree of medical certainty, that the acts of the physician
deviated from good and acceptable medical standards, and that
such deviation was the proximate cause of the harm suffered.
However, expert witnesses are not required to use magic words
when expressing their opinions; rather, the substance of
their testimony must be examined to determine whether the
expert has met the requisite standard. Moreover, in
establishing a prima facie case, the plaintiff [in a
medical malpractice case] need not exclude every possible
explanation of the accident; it is enough that reasonable
minds are able to conclude that the preponderance of the
evidence shows the defendant's conduct to have been a
substantial cause of the harm to [the] plaintiff.
Stimmler v. Chestnut Hill Hosp., 981 A.2d 145, 155
(Pa. 2009) (citations, quotation marks, and emphasis
this case, the trial court observed, "[Appellee's]
experts provided testimony with a reasonable degree of
certainty that [Appellants'] failure to use proper
testing methods under the circumstances prevented the timely
treatment of the meningitis." (Trial Ct. Op., 4/15/16,
at 7). We agree.
trial, Appellee presented the testimony of several experts to
support her theory that, had Dr. Goyal performed certain
tests based on Minor-Plaintiff's presentation, their
results would have revealed the existence of a bacterial
infection, which would have warranted further evaluation,
Minor-Plaintiff's admission, and the administration of
antibiotics. For example, Appellee's expert, Ron Waldrop,
M.D., a board certified pediatric emergency medicine
physician with twenty-five years' experience, testified
to a reasonable degree of medical certainty that, had Dr.
any bloodwork  at all such as CBC with a white blood cell
count or CRP, I firmly believe those would have been abnormal
and elevated and prompt even more workup which would include
a blood culture. And if so elevated I think it probably would
have led to admission and observation and intervention.
(N.T. Trial, 10/21/15 (Vol. II), at 13; see id. at
10; see also N.T. Trial, 10/20/15 (Vol. I), at
forming his opinion, Dr. Waldrop relied on
Minor-Plaintiff's hospital records, a peer review
journal, and the chapter he wrote in a standard pediatric
textbook about "how to manage children and look for risk
factors in children who have bacteria circulating in their
blood, but you [cannot] find the source." (N.T. Trial,