Tillery, S. v. The Children's Hospital of Phila. , 156 A.3d 1233 ( 2017 )

J-A32038-16
2017 Pa. Super. 50
SHANTICE TILLERY, IN HER OWN RIGHT IN THE SUPERIOR COURT OF
AND PARENT AND NATURAL GUARDIAN PENNSYLVANIA
ON BEHALF OF HER MINOR SON,
SHAMIR D. TILLERY
v.
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.
No. 1508 EDA 2016
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.*
OPINION BY PLATT, J.: FILED FEBRUARY 28, 2017
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.
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*
Retired Senior Judge assigned to the Superior Court.
J-A32038-16
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
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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
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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
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1
On May 5, 2016, Appellants filed an emergency motion to vacate the
judgment pursuant to 42 Pa.C.S.A. § 742, which the trial court denied.
Appellants’ appeal of that order is before this panel at docket number 1823
EDA 2016.
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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
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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).
Further,
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).
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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
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the source.” (N.T. Trial, 10/21/15 (Vol. II), at 9; see id. at 6-10; see also
N.T. Trial, 10/20/15 (Vol. I), at 208-09).
Similarly, Appellee presented the expert testimony of Michael F. Tosi,
M.D., the chief of pediatric infectious disease at Mt. Sinai Hospital, with over
thirty-one years’ experience treating pediatric infectious disease. (See N.T.
Trial, 10/22/15 (Vol. III), at 18-19). Dr. Tosi testified that, in his thirty-one
years of experience, Minor-Plaintiff’s CRP value was one of highest he had
seen in a patient with a severe bacterial infection. (See id. at 46-47).
Therefore, he opined that, had tests been performed sooner, they would
have revealed a “highly significant [CRP level] and would be strongly
suggestive of a serious bacterial infection[,]” which would have required, “at
a minimum, a blood culture, perhaps a urine culture and absolutely
administration of antibiotics intravenously in the hospital.” (Id. at 47, 49).
The doctor opined that “the injuries that [the Minor-Plaintiff] sustained would
have been avoided” if the proper tests had been performed and the
meningitis diagnosed sooner. (Id. at 50). Finally, Dr. Tosi stated that he
based his opinions relating to causation on the medical literature and his
experience with nearly two hundred cases of pediatric bacterial meningitis.
(See id. at 56).
Dr. Jonathan Megerian, a pediatric neurologist with over fifteen years
of experience in the emergency department, testified that, based on Minor-
Plaintiff’s “extraordinarily elevated CRP” and other specific data from his
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medical chart, earlier testing by Dr. Goyal would have revealed “[a] severe
systemic illness that is a bacterial infection, sepsis.” (N.T. Trial, 10/28/15
(Vol. VII), at 54-55; see id. at 7-9, 58-59). The doctor further stated that
the later scientific findings on the computed tomography (CT) and magnetic
resonance imaging (MRI) were “days in the making,” and therefore would
have been present if Minor-Plaintiff had been tested sooner. (Id. at 90; see
id. at 55, 89). In reaching his conclusions, Dr. Megerian reviewed Minor-
Plaintiff’s records, results of his radiological studies, the reports of other
professionals in the case, deposition testimony, and his own research and
experience dealing with children in the emergency department. (See id. at
29-31).
Based on the foregoing, as well as our thorough review of the entire
substance of Appellee’s experts’ testimony, Appellants’ claim that the
opinions were speculative, based solely on their personal conjecture and
expertise, and not on science or empirical evidence, is belied by the record.
Therefore, the trial court properly denied Appellants’ motion for a JNOV,
“where the facts are [not] such that no two reasonable minds could fail to
agree that the verdict was improper.” Miller, supra at 896; see also
Stimmler, supra at 155.2 Appellants’ first issue lacks merit.
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2
Moreover, Appellants’ reliance on Snizavich v. Rohm & Haas Co., 83
A.3d 191 (Pa. Super. 2013), appeal denied, 96 A.3d 1029 (Pa. 2014), is not
legally persuasive. (See Appellants’ Brief, at 21-22, 29). The plaintiff in
(Footnote Continued Next Page)
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In their second claim, Appellants maintain that they “are entitled to a
new trial as a result of the trial court’s failure to give the ‘two schools of
thought doctrine’ instruction to the jury[.]” (Appellants’ Brief, at 32; see id.
at 32-37). They argue that “the evidence established that there are clearly
two schools of thought when it comes to treatment of suspected bacterial
meningitis with steroids.” (Id. at 34). We disagree.
It is well established that a trial judge is bound to charge
the jury only on the law applicable to the factual parameters of a
particular case and that it may not instruct the jury on law
inapplicable to the matter before it. A new trial will be
warranted if a jury instruction is fundamentally erroneous and
may have been responsible for the verdict.
_______________________
(Footnote Continued)
Snizavich maintained that her husband died from brain cancer caused by
chemicals to which he was exposed during his employment in the
defendant’s facilities. See id. at 193. The plaintiff’s expert based his expert
opinion on his own knowledge and experience, relying on a report that was
inconclusive regarding the cause of the brain cancer found in defendant’s
employees and the relationship between the chemicals used in the facility
and brain cancer. See id. at 197. In spite of the uncertain result of the
report, the expert concluded that decedent’s brain cancer was caused by
exposure to an unknown chemical at defendant’s facility. See id. He did
not consider decedent’s medical history, risk factors for brain cancer, facts in
the medical record, or other potential causes of the cancer. See id. The
Court in Snizavich found that this opinion would not assist the trier of fact
where it did not “point to, rely on or cite some scientific authority—whether
facts, empirical studies, or the expert’s own research—that the expert has
applied to the facts at hand and which supports the expert’s ultimate
conclusion.” Id. This is inapposite to this case, in which Appellee’s medical
experts testified, based on specific scientific facts and medical literature, in
addition to their own experience, that as a direct result of the delay in
diagnosis and treatment, Minor-Plaintiff became profoundly deaf, sustained
permanent brain-related injury, and had an increased risk of permanent
harm.
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Choma v. Iyer, 871 A.2d 238, 243 (Pa. Super. 2005) (en banc), appeal
denied, 887 A.2d 231 (Pa. 2005) (citations omitted).
The two schools of thought doctrine provides a complete
defense to a malpractice claim. It directs that where competent
medical authority is divided, a physician will not be held
responsible if in the exercise of his judgment he followed a
course of treatment advocated by a considerable number of
recognized and respected professionals in his given area of
expertise. . . .
Id. at 241 (citations and quotation marks omitted). Importantly, the two
schools of thought doctrine does not apply to cases in which the issue is a
defendant’s failure to diagnose. See Levine v. Rosen, 616 A.2d 623, 628
(Pa. 1992). As aptly observed by the trial court:
In the instant case, the issue of the two schools of thought
doctrine was little more than a red herring. See Rittenhouse v.
Hanks, 777 A.2d 1113, 1118 (Pa. Super. 2001). [Appellee’s]
case concerned whether [Appellants] were negligent in failing to
provide the necessary testing and treat the bacterial infection
[that] they would be aware of had the proper testing been
performed. See D’Angelis v. Zakuto, 556 A.2d 431, 433 (Pa.
Super. 1989). In other words, due to [Appellants’] failure to
meet the standard of care in proper testing, they failed to
diagnose the bacterial meningitis, leading to[] Minor-
Plaintiff’s injury. See id. Since this case regards a failure of
diagnosis rather than competing theories of treatment, the
instruction was not appropriate in this case. See id. (holding
that question for jury was whether defendant doctor should have
identified condition and hospitalized him for it, or at least
ordered further testing, and thus instructions on two schools of
thought doctrine was inapplicable).
(Trial Ct. Op., 4/15/16, at 11-12) (case citation formatting provided;
emphases added). We agree.
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After reviewing the testimony offered by Appellee’s expert witnesses,
we conclude Appellants have mischaracterized her malpractice claims and
theories against them in this case. Appellee’s experts testified that
Appellants failed to diagnose Minor-Plaintiff’s condition in a timely manner,
which resulted in his injuries. Therefore, the trial court properly found that a
two schools of thought instruction would have been inappropriate, and
Appellants’ argument to the contrary fails. See Choma, supra at 243;
Levine, supra at 628.3.
In their third claim, Appellants maintain that the trial court erred when
it allowed evidence from CHOP’s website over their objection. (See
Appellants’ Brief, at 37-44). Specifically, they argue that the website was
inadmissible hearsay that was irrelevant and prejudicial. (See id.).
Appellants’ issue does not merit relief.
It is well-settled that “[e]videntiary rulings are committed to the sound
discretion of the trial court, and will not be overruled absent an abuse of
discretion or error of law.” Whitaker v. Frankford Hosp. of City of Phil.,
984 A.2d 512, 522 (Pa. Super. 2009) (citations omitted). Importantly, if a
party presents evidence about a certain issue, then they open the door to
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3
Moreover, although the experts did disagree about whether the standard of
care required the use of steroids for treatment, once bacterial meningitis is
discovered, not only is this not relevant to the claims against Appellants for
failure to diagnose, our review of the certified record reveals that none of
Appellants’ experts opined that there were “two schools of thought” on the
treatment of bacterial meningitis.
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rebuttal evidence that may not otherwise have been admissible. See
Duchess v. Langston Corp., 709 A.2d 410, 412 (Pa. Super. 1998),
affirmed, 769 A.2d 1131 (Pa. 2001).
Here, the trial court aptly explained:
In the instant case, the [d]efense opened the door to the
testimony regarding the website. In cross-examining Dr. Poe,
[d]efense counsel brought up a number of texts and articles,
including some written by highly ranked CHOP physicians,
regarding diagnosis and treatment of bacterial meningitis that
ostensibly refuted Dr. Poe’s position that a work-up including
antibiotics was necessary in Minor-Plaintiff’s case. (See, e.g.,
N.T Trial, 10/26/15 (Vol. I), at 67-69). In bringing out this
testimony, [Appellants] created the implication that these figures
and detailed statistics forwarded in these works, heavily
emphasized by counsel, could be completely relied upon by other
doctors. To combat this presumption, [Appellee] offered up
evidence of a CHOP website, which, in 2013, stated that
effective treatment of bacterial meningitis involves early
antibiotic treatment. (See id. at 83). This evidence was
introduced to show the jury that the conclusions of several CHOP
doctors in their articles did not necessarily represent the beliefs
of all doctors regarding the proper treatment of bacterial
meningitis, as CHOP’s own website was later inconsistent with
their conclusions. (See id. at 83-84).
Furthermore, the testimony regarding the website was
non-hearsay because it was brought in to rebut the presumption
created by the [d]efense and not for the truth of the matter
asserted. Pennsylvania law defines hearsay as an out-of-court
statement offered for the truth of the matter it asserts. [See]
Pa.R.E. 801. In this case, [Appellee] offered the evidence
regarding the website in rebuttal to the implication created by
[Appellants] that all highly ranked physicians in CHOP were final
in their conclusions regarding the diagnosis and treatment of
bacterial meningitis. Given that the evidence was used as
rebuttal rather than the truth of the matter asserted, it cannot
be considered inadmissible hearsay. See Pa.R.E. 801.
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(Trial Ct. Op., 4/15/16, at 31-32) (record citation formatting provided; one
record citation added; footnote omitted).
After our thorough independent review of the relevant portions of the
certified record, we agree with the sound reasoning of the trial court.
Therefore, we conclude that the court did not abuse its discretion in
admitting the CHOP website evidence. See Whitaker, supra at 522.
In their fourth allegation of error, Appellants maintain that the trial
court erred “by allowing an unqualified expert to testify on [Appellee’s]
behalf.” (Appellants’ Brief, at 44; see id. at 44-51). Specifically, they
argue that “Dr. Poe was not qualified to provide standard of care opinions
against [Appellants] under the MCARE Act.”4 (Id. at 44). We disagree.
Because statutory interpretation of the MCARE Act presents a question
of law, our standard of review is de novo and our scope of review is plenary.
See Bulebosh v. Flannery, 91 A.3d 1241, 1243 (Pa. Super. 2014), appeal
denied, 105 A.3d 734 (Pa. 2014).
The General Assembly has directed in the Statutory
Construction Act, 1 Pa.C.S. § 1501 et seq., that the object of
interpretation and construction of all statutes is to ascertain and
effectuate the intention of the General Assembly. Generally
speaking, the best indication of legislative intent is the plain
language of a statute. Furthermore, in construing statutory
language, “[w]ords and phrases shall be construed according to
rules of grammar and according to their common and approved
usage....” 1 Pa.C.S. § 1903. . . .
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4
Medical Care Availability and Reduction of Error Act, 40 P.S. §§ 1303.101-
910
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Rodgers v. Lorenz, 25 A.3d 1229, 1231 (Pa. Super. 2011) (case citation
omitted).
The MCARE Act provides the following pertinent language regarding
expert witnesses:
(a) General rule.─No person shall be competent to offer an
expert medical opinion in a medical professional liability action
against a physician unless that person possesses sufficient
education, training, knowledge and experience to provide
credible, competent testimony and fulfills the additional
qualifications set forth in this section as applicable.
(b) Medical testimony.─An expert testifying on a medical
matter, including the standard of care, risks and alternatives,
causation and the nature and extent of the injury, must meet
the following qualifications:
(1) Possess an unrestricted physician’s license to
practice medicine in any state or the District of
Columbia.
(2) Be engaged in or retired within the previous five
years from active clinical practice or teaching.
Provided, however, the court may waive the requirements of this
subsection for an expert on a matter other than the standard of
care if the court determines that the expert is otherwise
competent to testify about medical or scientific issues by virtue
of education, training or experience.
(c) Standard of care.─In addition to the requirements set forth
in subsections (a) and (b), an expert testifying as to a
physician’s standard of care also must meet the following
qualifications:
(1) Be substantially familiar with the applicable
standard of care for the specific care at issue as of
the time of the alleged breach of the standard of
care.
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(2) Practice in the same subspecialty as the
defendant physician or in a subspecialty which has a
substantially similar standard of care for the specific
care at issue, except as provided in subsection (d) or
(e).
(3) In the event the defendant physician is certified
by an approved board, be board certified by the
same or a similar approved board, except as
provided in subsection (e).
(d) Care outside specialty.─A court may waive the same
subspecialty requirement for an expert testifying on the standard
of care for the diagnosis or treatment of a condition if the court
determines that:
(1) the expert is trained in the diagnosis or
treatment of the condition, as applicable; and
(2) the defendant physician provided care for that
condition and such care was not within the
physician’s specialty or competence.
(e) Otherwise adequate training, experience and
knowledge.─A court may waive the same specialty and board
certification requirements for an expert testifying as to a
standard of care if the court determines that the expert
possesses sufficient training, experience and knowledge to
provide the testimony as a result of active involvement in or full-
time teaching of medicine in the applicable subspecialty or a
related field of medicine within the previous five-year time
period.
40 P.S. § 1303.512.
In this case, Dennis S. Poe, M.D., Ph.D., a board-certified neuro-
otologist surgeon and otolaryngologist,5 has practiced pediatric
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5
A neuro-otolaryngologist is an “ear, nose[,] and throat doctor who does
additional training after residency in . . . neurosurgical and skull base
(Footnote Continued Next Page)
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otolaryngology since 1987, and is a professor of otology and laryngology at
Harvard Medical School, thus satisfying the requirements of section 512(b).
(See N.T. Trial, 10/23/15 (Vol. I), at 15, 20-21; see also 40 P.S. §
1303.512(b). He is an active otolaryngologist and surgeon at Boston
Children’s Hospital, Brigham and Women’s Hospital, and Massachusetts Eye
and Ear Infirmary, with extensive knowledge and experience regarding the
results of a failure to diagnose bacterial meningitis, the precise care at issue
in this case. (See id. at 15, 21, 26); see also 40 P.S. § 1303.512(c)-(e).
Dr. Poe is also board certified in otolaryngology as well.
Therefore, we conclude that the trial court did not violate the
provisions of the MCARE Act or abuse its discretion when it admitted Dr.
Poe’s standard of care expert testimony in this case.6 See Bulebosh,
supra at 1243; Whitaker, supra at 522.
In their fifth issue, Appellants argue that “the trial court erred by not
reducing the excessive verdict and in not reducing [Appellee’s] future
_______________________
(Footnote Continued)
approaches [to] complex ear problems.” (N.T. Trial, 10/23/15 (Vol. I), at
15, 20-21).
6
Moreover, we note that Dr. Poe was Appellee’s causation expert, and only
provided limited standard of care testimony on the issue of whether
antibiotics should have been administered after the diagnosis of bacterial
meningitis. Therefore, this testimony was arguably irrelevant to the failure
to diagnose claim against Appellants. Also, the jury found the doctor
defendants to whom this standard of care testimony did apply, to be not
negligent. Hence, even if the trial court had abused its discretion in allowing
Dr. Poe to testify regarding this limited standard of care issue, there was no
prejudice to any defendant.
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medical expenses to present value before entering judgment as required by
MCARE.” (Appellants’ Brief, at 51 (unnecessary capitalization omitted); see
id. at 51-59). Specifically, they maintain that the pain and suffering award
is excessive, the future medical expenses award should have been reduced
to present value, and the court erred in awarding delay damages on the
lump sum verdict. (See id. at 53-59). This issue does not merit relief.
Appellants argue first that the jury’s $7.5 million compensatory
damage award was so excessive that it shocks the conscience, and that the
trial court erred when it failed to order either a new trial or remittitur. (See
id. at 53-54). We disagree.
The grant or refusal of a new trial because of the
excessiveness of the verdict is within the discretion of the trial
court. This [C]ourt will not find a verdict excessive unless it is so
grossly excessive as to shock our sense of justice. We begin
with the premise that large verdicts are not necessarily
excessive verdicts. Each case is unique and dependent on its
own special circumstances and a court should apply only those
factors which it finds to be relevant in determining whether or
not the verdict is excessive.
Tindall v. Friedman, 970 A.2d 1159, 1177 (Pa. Super. 2009) (citations
omitted). Similarly:
Our standard of review from the denial of a remittitur is
circumspect and judicial reduction of a jury award is appropriate
only when the award is plainly excessive and exorbitant. The
question is whether the award of damages falls within the
uncertain limits of fair and reasonable compensation or whether
the verdict so shocks the sense of justice as to suggest that the
jury was influenced by partiality, prejudice, mistake, or
corruption. Furthermore, [t]he decision to grant or deny
remittitur is within the sole discretion of the trial court, and
proper appellate review dictates this Court reverse such an
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Order only if the trial court abused its discretion or committed an
error of law in evaluating a party’s request for remittitur.
Renna v. Schadt, 64 A.3d 658, 671 (Pa. Super. 2013) (citations and
quotation marks omitted).
In this case, the trial court observed:
. . . The testimony bore out that Minor-Plaintiff sustained
permanent and total deafness in both ears, as well as severe
brain damage that will inhibit his prospects for employment and
many other of life’s pleasures in the future. . . . Minor-Plaintiff
sustained these injuries [as] an eleven-month [] old child and
will have to live with those injuries for the rest of his life. . . .
[T]he jury’s verdict was fair, unprejudiced, and not excessive.
Therefore, the factors clearly weigh against disturbing the jury’s
verdict[.]
(Trial Ct. Op., 4/15/16, at 35). We agree.
For example, Appellee Shantice testified that she is concerned about
Minor-Plaintiff’s future, including his ability to finish school, being on his
own, and taking care of his own needs, because of his profound deafness
and brain injury. (See N.T. Trial, 10/28/15 (Vol. I), at 87-88). Deon Tillery,
Minor-Plaintiff’s grandmother, testified that he gets frustrated with his
inability to communicate with his family or peers, experiences balance
problems that have resulted in injuries, and she is concerned about his
ability to do the things a child his age should be able to do. (See N.T. Trial,
10/29/15 (Vol. I), at 110-12). Terrell A. Clark, Ph.D., Appellee’s expert
pediatric psychologist with a specialty in deaf and hard of hearing children,
opined that Minor-Plaintiff’s “language is not just delayed. . . . The core of it
is that he has [a] language disorder.” (N.T. Trial, 10/28/15 (Vol. I), at 127;
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see id. at 106). Appellee’s expert explained that Minor-Plaintiff’s “ability to
understand, to process, to take in, to retain, to express language is
disordered . . . on [a] brain basis . . . because his brain can’t do language.
It’s broken.” (Id. at 128).
Dr. Peter Smith, Minor-Plaintiff’s neurodevelopmental and behavioral
pediatrician, testified that, because of Minor-Plaintiff’s young age, he lacks
“adaptive mechanisms” to overcome his disabilities. (N.T. Trial, 10/23/15
(Vol. IV), at 40; see id. at 5-6, 39). In other words, he explained that
becoming profoundly deaf and sustaining brain-related injuries at one year
of age is a “worst-case scenario” because “he doesn’t have the
compensatory intelligence and other things to . . . know what deafness is in
a deep sense.” (Id. at 41).
Based on the foregoing, and our independent review of the testimony,
we conclude that the jury’s $7.5 million non-economic damage award for the
profound deafness and brain-related injury caused by Appellants’ negligence
fell “within the uncertain limits of fair and reasonable compensation.”
Renna, supra at 671 (citation omitted). Therefore, “[c]ognizant of the fact
that the amount of pain and suffering damages is primarily a jury question,”
we agree with the trial court that the verdict was not “so grossly excessive
as to shock our sense of justice.” Renna, supra at 671-72 (citation
omitted); Tindall, supra at 1177. Hence, the trial court did not abuse its
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discretion in denying Appellants’ request for a new trial or remittitur on this
basis. See Renna, supra at 671; Tindall, supra at 1177.
Appellants next argue that, pursuant to section 509 of the MCARE Act,
the trial court erred when it failed to reduce the jury’s future medical
expense award to present value before entering judgment.7 (See
Appellants’ Brief, at 54-56). They maintain that the language of section 509
of the MCARE Act “clearly requires that future medical expenses be reduced
to present value.” (Id. at 55). Appellants’ claim fails.
Section 509 of the MCARE Act provides, in pertinent part, “future
damages for medical and other related expenses shall be paid as periodic
payments after payment of the proportionate share of counsel fees and costs
based upon the present value of the future damages awarded pursuant to
this subsection.” 40 P.S. § 1303.509(b)(1).
Appellants rely on Sayler v. Skutches, 40 A.3d 135 (Pa. Super.
2012), appeal denied, 54 A.3d 549 (Pa. 2012), which they maintain
“required that future medical damages be reduced to present value pursuant
____________________________________________
7
Appellee and the trial court both urge us to find that Appellants waived this
issue for failing to address it in their post-trial brief or at argument. (See
Appellee’s Brief, at 48; Trial Court Opinion, 6/28/16, at 4-5). However,
although Appellants failed to raise this issue in their post-trial brief, the
certified record reflects that counsel did raise it at argument on their post-
trial motions. (See N.T. Argument, 4/12/16, at 50). While counsel’s
argument was admittedly brief, he expressly asserted that, “under [MCARE],
future medicals have to be reduced to present value[,]” and asked if
Appellee’s counsel had any argument on the issue (which he did not). (Id.).
Therefore, we decline to find waiver.
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to Section 509 of the MCARE Act.” (Appellants’ Brief, at 55 n.30). However,
this reliance is misplaced. In Sayler, this Court concluded that, pursuant to
the plain language of section 509(b)(1), the future medical damages award
that had accrued at the time of the decedent’s death should be reduced to
present value only to determine the amount of attorney’s fees. See
Sayler, supra at 140. Therefore, the conclusion of the Sayler Court is
completely inapposite to Appellant’s position.
Further, we find that the law prior to the enactment of the MCARE Act
reflects a long-settled policy that awards of future medical expenses are not
to be reduced to present value. For example, in Yost v. West Penn
Railways Co., 9 A.2d 368 (Pa. 1939), the Pennsylvania Supreme Court
unambiguously stated that,
Present worth does not apply to damages awarded for future
pain, suffering and inconvenience. Nor does it apply to future
medical attention. Future medical attention presupposes an out-
of-pocket expenditure by the plaintiff. [The plaintiff] was
entitled to have defendant presently place in her hands the
money necessary to meet her future medical expenses, as
estimated by the jury based upon the testimony heard, so that
she will have it ready to lay out when the service is rendered.
Damages for expected medical expenses and for future pain and
suffering are entirely different from damages for loss of future
earnings, which, of course, must be reduced to present worth.
Yost v. West Penn Rys. Co., 9 A.2d 368, 369-70 (Pa. 1939) (citation
omitted); see also Renner v. Sentle, 30 A.2d 220 (Pa. Super. 1943)
(same).
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Moreover, Appellants fail to produce any pertinent law to support an
argument that the enactment of MCARE changed this policy. 8 (See
Appellants’ Brief, at 54-56). Therefore, based on the Commonwealth’s long-
standing policy, and the language of the statute, we conclude that the trial
court properly interpreted the language of section 509 of the MCARE Act to
require that future medical expenses are only to be reduced to present value
for the purpose of calculating attorney fees and costs. See Bulebosh,
supra at 1243. This argument fails.
Finally, Appellants argue that “the trial court erroneously molded the
verdict to include an award of delay damages on the future medical expense
award[.]” (Appellants’ Brief, at 56 (emphasis omitted); see id. at 56-59).
We disagree.
Delay damages are authorized by Pennsylvania Rule of Civil Procedure
238. Therefore,
. . . the matter before us requires that we interpret a
Pennsylvania Rule of Civil Procedure. This presents a question of
law, for which our standard of review is de novo and our scope
of review is plenary. Therefore, we are not constrained by the
____________________________________________
8
Additionally, Appellants rely on Nicholson-Upsey v. Touey, 30 Pa. D. &
C. 5th 168 (Phila. C.C.P. filed May 7, 2013), a case from the Philadelphia
Court of Common Pleas. (See Appellants’ Brief, at 55-56). Although this
case is not binding on this Court, see Echeverria v. Holley, 142 A.3d 29,
36 n.2 (Pa. Super. 2016), it supports our conclusion that future medical
expenses are only to be reduced to present value for the purpose of
calculating the attorney fees. See Nicholson, supra at *20 (observing that
“[section] 509(b)(1) of MCARE requires that future damages be reduced to
present value to determine the proper attorney’s fees[.]”).
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interpretation provided by the trial court. We must then analyze
the trial court’s [grant or] denial of delay damages pursuant to
Rule 238, which we review for an abuse of discretion. . . .
When interpreting a Rule of Civil Procedure, the goal “is to
ascertain and effectuate the intention of the Supreme Court.”
Pa.R.C.P. 127(a). In so doing, we must, to the extent possible,
“give effect to all [of the rule’s] provisions. When the words of a
rule are clear and free from all ambiguity, the letter of it is not to
be disregarded under the pretext of pursuing its spirit.”
Pa.R.C.P. 127(b). . . .
Roth v. Ross, 85 A.3d 590, 592-93 (Pa. Super. 2014) (case citations and
some quotation marks omitted).
Pennsylvania Rule of Civil Procedure 238 provides, in pertinent part:
At the request of the plaintiff in a civil action seeking monetary
relief for bodily injury . . . damages for delay shall be added to
the amount of compensatory damages awarded against each
defendant . . . found to be liable to the plaintiff in the verdict of
a jury . . . and shall become part of the verdict, decision or
award.
Pa.R.C.P. 238(a)(1).
In Roth, supra, a panel of this Court addressed the precise argument
advanced by Appellants here. In that case, the plaintiff suffered injuries as
a result of a motor vehicle accident with the defendant. The jury awarded
judgment in the plaintiff’s favor and the Roth Court found that he was
entitled to delay damages on his future medical expenses. See Roth,
supra at 593.
We observed that the unambiguous language of Rule 238(a)(1)
requires that, “in all civil cases wherein the plaintiff seeks monetary relief for
bodily injury, delay damages shall be added to compensatory damages
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awarded to the plaintiff against each defendant found to be liable by the
jury.” Id. Because “future medical expenses are compensatory
damages[,]” id. at 593 n.2, we concluded that “[f]uture medical expenses
that will be incurred as a result of treatment of injuries sustained because of
[] defendant’s negligence are, by definition, monetary relief for bodily
injury[]” under the Rule’s plain meaning. Id. at 593. Therefore, this Court
concluded that the plaintiff was entitled to delay damages on his future
medical expenses award for bodily injuries he suffered due to the
defendant’s negligence.9
Hence, applying the foregoing analysis to the Minor-Plaintiff here, we
conclude that the trial court properly awarded delay damages on his award
for future medical expenses incurred as a result of bodily injuries caused by
Appellants’ negligence. See Roth, supra at 593; see also Lilley, supra at
212. Appellants’ final claim of error does not merit relief.
Judgment affirmed.
____________________________________________
9
The Roth Court further observed that “[t]he fact that the damages are for
future medical expenses, i.e. expenses not yet incurred, does not preclude
the addition of delay damages to the award.” Roth, supra at 594 (citation
omitted); see also Lilley v. Johns-Manville Corp., 596 A.2d 203, 212 (Pa.
Super. 1991), appeal denied, 607 A.2d 254 (Pa. 1992) (stating appellant’s
contention that delay damages cannot apply to future injuries lacks merit).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/28/2017
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