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Tillery v. Children's Hospital of Philadelphia

Superior Court of Pennsylvania

February 28, 2017


         Appeal 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. [*]


          PLATT, J.

         Appellants, 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.

          We 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 room instructions.
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 immediately ordered.
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 of negligence.
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[6]. The [c]ourt held oral argument on April 12, 2016. On April 1[5], [2016] 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[5] [o]rder denying [their] Post-Trial Motions.[1] 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. 2013)?
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 [Minor-Plaintiff's] treatment?
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).

         In 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).

         In this 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 omitted).

          In 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.

         At 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. Goyal performed:

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 202-03).

         In 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, ...

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