In its opinion filed on February 28, 2017, the Superior Court of Pennsylvania (“Appellate Court”) affirmed the judgment in the amount of $11,391,640.08 that was entered in favor of the Pennsylvania medical malpractice plaintiff, who filed a medical malpractice lawsuit on her own behalf and on behalf of her minor child against The Children’s Hospital of Philadelphia (“CHOP”) and an emergency room attending physician.
The Pennsylvania medical malpractice jury had awarded the following: (1) $1,120,000.00 for the minor-plaintiff’s future loss of earnings and earning capacity; (2) $7,500,000.00 for the 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 the minor-plaintiff’s future medical and other related expenses (for a total of $1,518,000.00), for a total jury award in the amount of $10,138,000.00.
The Underlying Facts
On December 21, 2009, the plaintiff brought her then eleven-month-old child to CHOP’s Emergency Department because he had a fever and had 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.
The following day, the plaintiff returned to CHOP with her minor child because his condition had worsened, including high fever, irritability, increasing pulse rate, increasing respiratory rate, dehydration, and lethargy. He was examined by the defendant attending physician who ordered a chest x-ray and ruled out pneumonia and viral upper respiratory infections as causes of the child’s symptoms. Without any further diagnostic testing, the child was discharged with a treatment plan consisting of supportive care, a follow-up with a primary physician, and return to emergency room instructions.
The next day, the minor child was brought back to CHOP where the differential diagnosis included fever, bronchiolitis, possible pneumonia, possible serious bacterial infection, and possible dehydration. Another emergency room physician subsequently ordered blood tests that revealed elevated white blood cell counts and an elevated C-reactive protein (“CRP”). Despite fluid intake, the child’s condition continued to deteriorate. A lumbar puncture was then ordered, which was not completed until nearly three hours later. The lumbar puncture results led to a diagnosis of meningitis and antibiotics were immediately ordered.
The child was admitted to CHOP’s Pediatric Intensive Care Unit (“PICU”) where he was later diagnosed with streptococcus pneumoniae meningitis, bilateral hearing loss, and brain damage.
On appeal, the defendants challenged the trial court’s denial of their motion for judgment notwithstanding the verdict (“JNOV”) in which they argued that the plaintiff’s experts offered opinions based solely on their expertise, not on science or empirical evidence. The Appellate Court concluded that the defendants’ argument is belied by the record and therefore the trial court properly denied the defendants’ motion for JNOV.
The defendants also challenged the trial court not reducing what they argued was an excessive verdict and not reducing the plaintiff’s future medical expenses to present value before entering judgment as required by the MCARE Act (Medical Care Availability and Reduction of Error Act, 40 P.S. §§ 1303.101- 910). Specifically, the defendants argued 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.
The Appellate Court stated that the jury’s $7.5 million compensatory damage award was not so excessive that it shocks the conscience, and that the trial court did not err when it failed to order either a new trial or remittitur (“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.'”).
The Appellate Court further held that based on Pennsylvania’s long-standing policy, and the language of the statute, 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.
The Appellate Court also held that the trial court properly awarded delay damages on the award for future medical expenses incurred as a result of bodily injuries caused by Appellants’ negligence.
Source Tillery v. The Children’s Hospital of Philadelphia, 2017 PA Super 50.
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