Judge orders new trial in Temple Health medical malpractice case with $45 million jury verdict

A Philadelphia judge made the rare decision to order a retrial in a Temple University Hospital malpractice case with a $45 million jury verdict, finding that the jury’s verdict did “not make logical or legal sense” and that its award of future medical costs was “exorbitant.”

Most of the August verdict was designated for the future health care and other expenses of the plaintiff, Dylan Hernandez. He was shot in the neck in 2020, when he was 15, and treated first at Temple’s Episcopal Hospital and then at Temple’s main hospital on North Broad Street.

The dispute in the case was whether Temple personnel had adequately evaluated Hernandez’s swallowing ability, and whether he and his mother received proper instructions when he was discharged. Less than two days after he went home, Hernandez breathed in mashed potatoes he was eating, depriving his brain of oxygen.

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Temple asked Common Pleas Court Judge Glynnis D. Hill to either overturn the verdict or grant a new trial. He declined to overturn the verdict, but granted a new trial in an order posted Friday. Over three pages, Hill detailed what he described as inconsistencies in the jury’s finding of fault and its damages award.

No one tracks how often judges order new trials after malpractice verdicts, said John J. Hare, a medical malpractice defense attorney with Marshall Dennehy.

“I am confident that grants of new trials in medical malpractice cases are rare, certainly under 10%,” said Hare, who is known for compiling statistics on the Philadelphia court system and is often involved in post-trial and appellate phases of big medical malpractice cases.

The jury determined that Hernandez was negligent, Hill’s decision noted. His mother fed him Popeye’s mashed potatoes even though, the judge wrote, Temple discharged him with orders to be on a liquids-only diet. Hernandez’s “mother testified that she was aware that Popeye’s mashed potatoes are very thick, and that is why she ordered extra gravy for her son,” Hill wrote.

Despite finding that Hernandez was negligent, the jury decided that he was not liable for his injury, a conclusion that didn’t make sense to Hill. “One cannot choke on food he knew he should not have consumed and not be at least partially responsible. The jury’s verdict does not make logical or legal sense,” Hill wrote.

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The second part of Hill’s order dealt with the damages. Hernandez’s attorney, Tom Duffy, presented two scenarios for future medical costs, one relying on at-home care and another on institutional care, both calculated through the age of 75. The cost of the first option was $17.8 million; for the second it was $19.6 million, according Hill’s order.

Instead of choosing one, the jury awarded $38.3 million for care through age 63 — more than the combined cost of the alternatives and providing 12 fewer years of care, the judge wrote.

“The jury clearly either made a mistake in their calculations or were swayed by some other improper basis for decision making, as the award simply does not align with the evidence presented,” Hill wrote.

Temple did not ask him to reduce the amount of the award, as defendants sometimes do.

John Ryan, Temple’s general counsel and chief human resources officer, said, “We are grateful for Judge Hill’s thoughtful decision, determining that this verdict was inconsistent with the evidence and that it was excessive.”

Duffy, Hernandez’s lawyer, said he was confident that Superior Court will reinstate the jury’s verdict on appeal. “Over four weeks of trial, thoughtful deliberation, and the expense of their valuable time, we believe that an attentive jury was correct and appropriate with their decision,” he said.

In verdicts with significant amounts of future medical costs, defendants typically don’t have to pay the money up front. Instead, they can buy a type of insurance for less money that will cover those costs. The present value of the $45 million Hernandez verdict was roughly $30 million, according to Duffy’s firm.

However, attorneys’ fees of as much as 40% are usually calculated based on the full jury award.