Tillery, S. v. The Children's Hospital of Phila.
156 A.3d 1233
| Pa. Super. Ct. | 2017Background
- In December 2009 an 11-month-old (Minor-Plaintiff) presented repeatedly to CHOP ED with fever, respiratory symptoms and lethargy; initial visits discharged him without comprehensive testing.
- On the third ED visit clinicians eventually performed labs and a lumbar puncture hours after presentation; diagnosis of Streptococcus pneumoniae meningitis followed, and the child suffered bilateral profound hearing loss and brain injury.
- Mother (Tillery) sued CHOP and Dr. Goyal (and others); after a multi-week trial the jury found CHOP and Goyal negligent and awarded roughly $10.138 million (later entered as $11.39M judgment with delay damages).
- Appellants (CHOP and Dr. Goyal) appealed raising five main claims: JNOV for insufficient causation evidence; failure to give a two-schools-of-thought instruction; admission of CHOP website evidence; admission of Dr. Poe as an expert under MCARE; and errors in calculating/reducing future medical expenses and delay damages.
- The trial court denied post-trial relief; the Superior Court reviewed evidentiary rulings, jury instructions, expert qualifications under MCARE, and statutory/precedential rules on present-value and delay damages and affirmed.
Issues
| Issue | Plaintiff's Argument (Tillery) | Defendant's Argument (CHOP/Goyal) | Held |
|---|---|---|---|
| Sufficiency of causation evidence / JNOV | Experts tied failure to test/diagnose to delayed treatment and injury; competent causation proof existed | Experts’ opinions were speculative, based solely on experience without scientific/empirical support, requiring JNOV | Denied JNOV: expert testimony (records, literature, experience) was sufficient for jury; reasonable minds could find causation. |
| Two‑schools‑of‑thought jury instruction | Not argued by plaintiff; plaintiff maintained failure was diagnostic, not a disputed treatment choice | Defense sought instruction because experts disagreed about steroid use in meningitis | Instruction improper: two‑schools doctrine does not apply to failure‑to‑diagnose claims; court did not err. |
| Admission of CHOP website (hearsay/prejudice) | Website post‑dated care and was irrelevant/hearsay and prejudicial | Defense opened door by cross‑examining plaintiff’s expert with CHOP‑authored articles; website used in rebuttal, not for truth | Admission affirmed: used to rebut implication and therefore not hearsay; trial court did not abuse discretion. |
| Qualification of Dr. Dennis Poe under MCARE | Dr. Poe (neuro-otologist) was not same subspecialty/board as defendants and thus unqualified to opine on standard of care | Plaintiff: Poe is board‑certified, experienced in pediatric otolaryngology/neuro-otology and familiar with injuries from delayed meningitis; MCARE waivers apply | Affirmed: Poe met MCARE §512(b)/(c)-(e) requirements for his limited standard‑of‑care/causation testimony; admission proper and non‑prejudicial. |
| Reduction of future medical expenses to present value and delay damages | Defense: MCARE §509 requires reducing future medical expenses to present value before judgment; also challenge to awarding delay damages on future medicals | Plaintiff: §509 reduces future damages to present value only for calculation of attorney fees; Rule 238 entitles delay damages on compensatory awards including future medicals | Affirmed: future medicals need not be reduced to present value except for attorney‑fee calculations; delay damages properly added to future medical expense award under Pa.R.C.P. 238. |
Key Cases Cited
- Miller v. St. Luke’s Univ. Health Network, 142 A.3d 884 (Pa. Super. 2016) (standard for reviewing denial of JNOV)
- Stimmler v. Chestnut Hill Hosp., 981 A.2d 145 (Pa. 2009) (expert standard and reasonable‑certainty requirement in malpractice causation)
- Snizavich v. Rohm & Haas Co., 83 A.3d 191 (Pa. Super. 2013) (expert opinion unsupported by empirical basis may be inadmissible)
- Choma v. Iyer, 871 A.2d 238 (Pa. Super. 2005) (two‑schools doctrine and limits)
- Levine v. Rosen, 616 A.2d 623 (Pa. 1992) (two‑schools doctrine in malpractice context; failure‑to‑diagnose distinction)
- Roth v. Ross, 85 A.3d 590 (Pa. Super. 2014) (delay damages under Pa.R.C.P. 238 include future medical expenses)
- Sayler v. Skutches, 40 A.3d 135 (Pa. Super. 2012) (interpretation of MCARE §509 regarding present value for attorney‑fee calculation)
- Yost v. West Penn Rys. Co., 9 A.2d 368 (Pa. 1939) (historical rule: future medical expenses generally not reduced to present value)
- Tindall v. Friedman, 970 A.2d 1159 (Pa. Super. 2009) (standard for evaluating excessiveness of jury verdict)