Tillery, S. v. The Children's Hospital of Phila.

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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