HARRISBURG – The failure to request an itemized verdict slip has cost the defendants in a medical malpractice lawsuit $3.8 million, per a ruling from the Supreme Court of Pennsylvania.
The Court’s Sept. 29 opinion reversed an earlier one from the Superior Court of Pennsylvania, which removed survival damages from the $6.3 million jury verdict and called for a new trial on that survival claim – but now the case will be remanded to the Superior Court for further proceedings.
“The jury in this medical malpractice case awarded the plaintiff Karen Cowher a lump sum amount of damages under the Survival Act, and did not itemize the amount of pain and suffering damages or other components of its aggregate award. Thereafter, the Superior Court granted the defendants Dr. Sobhan Kodali, St. Luke’s University Health Network, and St. Luke’s Cardiology Associates a new trial on survival damages, based on their claim the admission of plaintiff’s expert opinion testimony on pain and suffering was erroneous,” Supreme Court of Pennsylvania Justice Kevin M. Dougherty said.
“The narrow question we address in this appeal is whether defendants waived their right to a new trial under the general verdict rule. This rule applies and mandates waiver when a general verdict rests upon both valid and invalid grounds, and the litigant challenging the verdict failed to request a special verdict slip that would have clarified the basis for the verdict.”
In December 2015, the decedent James L. Cowher II experienced chest pain that woke him from his sleep, which led him to seek medical attention and underwent a stress echocardiogram test, the results of which were normal. On July 11, 2016, the decedent saw his primary care doctor with complaints of ongoing chest pain, as well as shortness of breath, nausea, and sweating.
The doctor then performed an electrocardiogram test and ordered the decedent’s blood tested for troponin, a heart muscle enzyme released into the bloodstream when there is heart damage. The results of both tests were normal, and the decedent’s primary care doctor referred him to St. Luke’s Cardiology Associates.
“Dr. Kodali, a general cardiologist with St. Luke’s Cardiology Associates, saw the decedent on July 13, 2016. He told Dr. Kodali that for the last six months he had been experiencing chest pains radiating to both arms, which were often associated with shortness of breath, dizziness, and tingling in his fingers. He also told the doctor he was running three miles every other day, at a nine-minutes-per-mile pace without any symptoms. Dr. Kodali knew the decedent had three risk factors for heart disease: a family history of premature coronary artery disease, high cholesterol and obesity. Dr. Kodali concluded the decedent’s issues were not cardiac related, further evaluation was unnecessary and his clinical picture was suggestive of anxiety/panic attacks,” Dougherty said.
“On Aug. 23, 2016, decedent was running in his neighborhood when he collapsed in front of a neighbor. He was subsequently transported to the hospital, where he was pronounced dead. He was 48 years old. An autopsy revealed he had severe atherosclerotic cardiovascular disease. The coroner reported his primary cause of death to be acute myocardial infarction. On Jan. 31, 2018, plaintiff, who is decedent’s widow and the administrator of his estate, filed suit against the defendants. Her complaint raised causes of action under the Wrongful Death Act and the Survival Act, set to be tried before a jury. On Oct. 28, 2019, defendants filed in the trial court a proposed verdict slip for the jury.”
The verdict slip contained one line for a wrongful death action and one for the survival action, which the defendants later challenged.
While the defense claimed there had been erroneous testimony on pain and suffering from one of the plaintiff’s experts and filed an unsuccessful motion in limine seeking to preclude the plaintiff from introducing the expert opinion, they did not request a separate line on the verdict slip for pain and suffering, and did not ask the jury to itemize its damages awards after the trial.
In December 2019, the jury returned a unanimous verdict in favor of the plaintiff, finding Dr. Kodali’s conduct fell below the applicable standard of medical care, and his negligence was a factual cause of harm to decedent.
Additionally, the jurors awarded plaintiff $2,457,000 in wrongful death damages and $3,833,000 in survival damages. The defendants declined the court’s offer to review the verdict slip, but did request the jury be polled, and each juror confirmed they agreed with the verdict as stated. Furthermore, the defendants did not ask the trial court to require the jury to itemize or otherwise clarify its damages awards.
On appeal, the Superior Court “concluded that the trial court’s prejudicial error in admitting the expert testimony on pain and suffering could not have affected the jury’s liability verdict or damages award for the wrongful death action, but rather could have only affected the damages awarded on the survival claim” and “vacated only the damages judgment with respect to plaintiff’s survival claim, and remanded for a new trial on damages limited to that claim.”
The Supreme Court of Pennsylvania allowed the plaintiff’s appeal to appear before it, but differed from the lower court and found that pain and suffering was only one part of the plaintiff’s Survival Act claims and without an itemized verdict, the state Supreme Court could not decide if improper testimony led to the trial’s result.
“We will not simply presume the verdict rested on an improper basis and remand for a retrial burdening plaintiff and expending finite judicial resources where defendants had it readily within their power to clarify the matter via a special verdict slip,” Dougherty stated.
“The arguments presented against application of the general verdict rule leave us unpersuaded. Defendants’ contentions they were clearly prejudiced by Dr. Emil Hayek’s pain and suffering testimony miss the mark. The question before us is not whether the admission of the testimony was prejudicial error. Rather, we are deciding whether defendants waived their challenge to the survival award under the general verdict rule by not requesting a special verdict slip. Assuming the admission of Dr. Hayek’s testimony was prejudicial error, this would not resolve the distinct waiver issue.”
The late Chief Justice Max Baer and Justices Debra Todd, Christine Donohue, David N. Wecht and P. Kevin Brobson joined Dougherty’s opinion, while Justice Sallie Updyke Mundy filed a concurring and dissenting opinion.
“As the majority correctly holds, appellees waived a new trial on survival damages based on the general verdict rule. The majority aptly notes it is impossible from the general verdict alone to determine if the jury awarded any amount of pain and suffering damages, particularly because in this case, ‘the general survival damages verdict returned by the jury is supportable solely on the basis of the proper evidence of loss of life’s pleasures and/or lost earnings.’ In my view, this is the reason appellees waived their request for a new trial under the general verdict rule,” Mundy said.
“Because appellees waived a new trial by failing to request a special verdict form, the majority’s subsequent speculation that appellees would be entitled to a new trial based on Dr. Hayek’s allegedly improper opinion on pain and suffering is unnecessary to resolving ‘the narrow question we address in this appeal.’ As this portion of the majority is not necessary to the decision of this case, I consider it obiter dicta, and I cannot join. For these reasons, I concur in the result and dissent as to the discussion of Dr. Hayek’s testimony.”
Supreme Court of Pennsylvania case 77 MAP 2021
Superior Court of Pennsylvania case 1111 EDA 2020
Lehigh County Court of Common Pleas case 2018-C-0264
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com