Children's Hospital seeks to keep plaintiff's expert off stand in case of infant's bacterial meningitis

PHILADELPHIA – A Philadelphia woman’s lawsuit against the Children’s Hospital of Philadelphia (CHOP) and four of its doctors, alleging they caused her then-six-and-a-half-month-old son to contract meningitis and suffer brain damage, will have a Frye hearing to determine the admissibility of medical evidence on Wednesday morning.

Ari Shaw, acting as the parent and legal guardian of her son, Zamere Shaw, first filed the litigation in the Philadelphia County Court of Common Pleas in February 2013.

Zamere was born May 23, 2012, and just after he turned six months old, was brought by his mother to the emergency room at CHOP four times of the course of a week spanning Dec. 2 to Dec. 9, 2012, allegedly exhibiting fever and upper respiratory difficulties. After each of the first three visits, Shaw and her son were discharged.

Shaw claims that in the first three instances of visiting CHOP facilities during the time period in question, Zamere was not given diagnostic tests or blood tests – tests she feels would have identified the root cause of Zamere’s illness at that time as a bacterial infection – or antibiotics with which to treat the infection.

On the fourth and last visit to CHOP that week, Shaw claims Zamere’s condition had taken a serious turn for the worse. During that visit, it was determined Zamere had contracted meningitis.

Shaw says the meningitis left Zamere, now nearly three years old, with irreversible brain injuries, pain and suffering, scarring and disfigurement, as well as a future loss of independence and costly past, present and future medical expenses.

Shaw is alleging negligence on the part of the doctors who saw and treated Zamere that week - Frances Nadel Rogers, Yu Niu, Brandon Ku and Beri Massa.

She also alleges corporate negligence of behalf of CHOP, the CHOP Practice Association, CHOP Clinical Associates and Children’s Health Care Associates in this matter.

The scheduled Frye hearing was initiated by the defense, which seeks to preclude the plaintiff’s expert witnesses from testifying that symptoms of bacterial infection and meningitis were present in Zamere during his visits to CHOP prior to Dec. 6, 2012, and that a lumbar puncture and blood tests would have revealed the severity of his condition.

The defense contends such testimony is invalid and amounts to “scientifically unsound causation opinions.”

The defense claims not only were signs of a bacterial infection or meningitis not detectable in earlier visits, but that Zamere actually showed improvement over the course of several days without receiving antibiotics.

The defense added that a Frye hearing “requires a general acceptability of expert opinions and methodology” and the citing of certified scientific authorities, something they claim the plaintiff’s expert witnesses lack.

The plaintiff is seeking in excess of $50,000 in damages, in excess of arbitration limits, plus pre- and post-judgment interest and costs.

The plaintiff is represented by Matthew A. Casey, Esq., Jennifer L. Russell, Esq. and John M. Pinto, Esq., of Ross Feller Casey LLP. in Philadelphia.

The defendants are represented by Andrew Susko, Esq., Daniel J. Ferhat, Esq. and Kevin C. Cottone, Esq. of White & Williams, also of Philadelphia.

Philadelphia County Court of Common Pleas case 121203790