HARRISBURG – The Superior Court of Pennsylvania has upheld a Lehigh County trial court’s decision in favor of a medical malpractice plaintiff who alleged a St. Luke’s cardiologist provided inadequate care to her late husband who died from cardiac arrest at age 48, a judgment in excess of $6.6 million.
Superior Court judges Victor P. Stabile, Carolyn H. Nichols and James Gardner Colins affirmed a judgment from the Lehigh County Court of Common Pleas, in favor of plaintiff Karen Cowher (Administratrix of the Estate of James L. Cowher, II, deceased) and against defendants Dr. Sobhan Kodali, St. Luke’s University Health Network and St. Luke’s Cardiology Associates.
Colins authored the Court’s opinion in this case, and explained that the case is once again before the Superior Court, after the Supreme Court of Pennsylvania reversed the Superior Court’s original order of Feb. 8, 2021, which vacated the damages judgment on plaintiff’s survival claim.
However, while the Superior Court was called upon to consider two issues not reached in the Feb. 8, 2021 decision, Gardner added that the defendants are barred under the Supreme Court’s decision in this case from seeking relief on both of those issues.
“In September 2015, decedent had an episode of chest pain and underwent a stress echocardiogram test that was normal. On July 11, 2016, decedent saw his primary care physician for episodes of chest pain that were becoming more frequent and severe and that radiated from the chest to his arms and were accompanied by some shortness of breath, nausea and sweating. Decedent’s primary care physician performed an electrocardiogram and had a test done for troponin, a chemical marker of heart damage, both of which were normal,” Colins said.
“Decedent’s primary care physician arranged for decedent to be seen by an affiliated cardiology group, and defendant Dr. Sobhan Kodali, a cardiologist in that group, saw decedent on July 13, 2016. Decedent reported to Dr. Kodali that for the last six months he had been experiencing chest pain that radiated to both arms, often with shortness of breath, dizziness, and tingling in his fingers. Decedent also reported to Dr. Kodali that he was regularly running for exercise without symptoms. Dr. Kodali was aware that decedent had a family history of premature coronary artery disease, had high cholesterol, and was overweight. Dr. Kodali did not order or perform any tests other than an additional electrocardiogram, which was normal, and a lipid test, and concluded that decedent’s chest pain was ‘not cardiac,’ stating that ‘[no further evaluation is necessary at this time’ and that ‘overall the clinical picture is suggestive of anxiety/panic attacks.”
On Aug. 23, 2016, the decedent suffered cardiac arrest while jogging and died. Mr. Cowher’s autopsy explained he had blockages of 80% and over 90% in the left main and left anterior descending coronary arteries, and listed the cause of decedent’s death as “favor cardiac arrhythmia secondary to ASCVD [arteriosclerotic cardiovascular disease].”
The coroner reported the decedent’s cause of death as acute myocardial infarction due to severe coronary artery disease.
The plaintiff filed a survival and wrongful death lawsuit on Jan. 31, 2018, charging that Dr. Kodali was negligent in failing to diagnose decedent as having unstable angina and severe coronary artery disease, that Dr. Kodali’s failure to diagnose and treat him for those conditions caused decedent’s death, that St. Luke’s Cardiology Associates (Associates), Dr. Kodali’s practice group and St. Luke’s University Health Network (Health Network), the health network that owns Associates, were liable for Dr. Kodali’s negligence.
“On Dec. 9, 2019, the jury returned a verdict in favor of plaintiff and against defendants awarding plaintiff $2,457,000 in wrongful death damages and $3,833,000 in damages on the survival claim. Defendants timely filed post-trial motions seeking a new trial, or alternatively a new trial on damages or a remittitur, and plaintiff moved to add delay damages to the verdict. On April 7, 2020, the trial court denied defendants’ post-trial motions, granted plaintiff’s delay damages motion and entered judgment in favor of plaintiff and against defendants, in the amount of $6,631,642.70,” Colins said.
The defendants then appealed on four grounds:
• Whether the trial court erred and abused its discretion in failing to vacate the verdict where plaintiff failed to prove liability under her new, eleventh-hour cause of death theory by presenting expert testimony identifying a specific standard of care for treatment of cardiac arrhythmia (as opposed to other coronary conditions), which defendants breached and thus caused plaintiff’s harm?
• Whether the trial court erred and/or abused its discretion in permitting plaintiff’s expert to testify to his assumptions regarding the purported pain and suffering decedent experienced?
• Whether the trial court erred and abused its discretion in failing to vacate the Survival Act award where the record is devoid of evidence that decedent was conscious, able to feel pain or indeed felt pain immediately prior to death and, thus, any award for pain and suffering is against the weight of the evidence?
• Whether the trial court erred and/or abused its discretion in denying defendants’ requests for a new trial on damages and/or remittitur, where the jury’s Survival Act verdict award of $377,000 per minute (at best) for 2-3 minutes of pain and suffering is grossly excessive, unmoored from the record, and against the weight of the evidence?
“On Feb. 8, 2021, this Court issued a decision in this appeal in which we rejected defendant’s Issue 1 claim that plaintiff had failed to prove liability, but held on Issue 2 that the trial court had erred in admitting the opinion of plaintiff’s expert on pain and suffering, which merely placed an expert imprimatur on lay witness testimony and that this error could have affected the jury’s survival damages award,” Colins said.
“Accordingly, we affirmed the trial court’s judgment as to liability and its damages judgment on plaintiff’s wrongful death claim, but vacated the damages judgment on plaintiff’s survival claim and remanded for a new trial on damages with respect to that claim. Because defendants’ third and fourth issues involved only the survival damages award that had been vacated, we did not rule on those two issues.”
The plaintiff filed a petition for allowance of appeal in which she sought review of several issues, including whether the Superior Court erred in holding the expert pain and suffering testimony inadmissible and whether defendants’ failure to request an itemized verdict slip waived their right to seek a new trial based on the admission of that testimony.
On Oct. 19, 2021, the Supreme Court granted plaintiff’s petition for allowance of appeal, limited to the following issue only: Where defendants failed to request an itemized verdict slip such that the jury would have been required to separately value the amount of each element of damages under Pennsylvania’s Survival Act and where the defendants failed to object to the general verdict slip given by the trial court to the jury to answer during deliberations, knowing that they intended to challenge any pain and suffering award rendered by the jury, whether those same defendants are estopped from requesting and receiving or have waived a new trial on damages?
On Sept. 29, 2022, the state Supreme Court reversed the Superior Court’s Feb. 8, 2021 vacating of plaintiff’s survival damages judgment on the grounds that defendants, by failing to request a verdict slip that itemized the pain and suffering damages that the jury awarded, waived their right to seek a new trial based on an error that could only have affected the amount of an award for pain and suffering.
“The Court held that the requirements of that rule were satisfied because the jury’s survival award was supportable solely on the basis of other elements of survival damages that were unaffected by the expert testimony, and it was not possible to determine from the general verdict what amount of pain and suffering damages the jury awarded or even whether the jury had awarded any pain and suffering damages,” Colins stated.
“The Court ruled that it was appropriate to hold that defendants waived their right to seek a new trial because defendants were aware before trial that the admission of evidence on pain and suffering damages was a potential appellate issue, but never requested a special interrogatory itemizing pain and suffering damages and instead sought a verdict slip with one blank for the jury to award a single lump sum amount of survival damages.”
Applying the state Supreme Court’s decision to the two remaining issues, Colins said the Superior Court concluded it is barred by the defendants’ failure to request a special verdict slip itemizing the amount of pain and suffering damages, since both Issue 3 and Issue 4 are entirely dependent on a determination that the jury’s survival award included an award for pain and suffering.
Furthermore, the state Supreme Court rejected the argument that the total amount of the survival claim award is against the weight of the evidence or excessive.
“The state Supreme Court, in determining whether the general verdict rule applied, concluded that the verdict as a whole was supported by the evidence and not excessive, even if it contained no pain and suffering damages, because there was sufficient evidence to support the amount of survival damages award based on evidence of the other components of survival damages,” Colins said.
“Defendants’ contention that we should disregard our state Supreme Court’s ruling as ‘dicta’, is without merit. The ruling that the verdict as a whole was valid even if it included no pain and suffering award was necessary to the Court’s determination that the general verdict rule applied and barred defendants from obtaining a new trial, as the general verdict rule requires a determination that the general verdict could be based on another, valid ground.”
Colins explained the Superior Court would affirm the trial court’s decision.
“Because the bases on which our Supreme Court found that defendants were barred by waiver from setting aside the jury’s survival claim verdict based on erroneous admission of expert testimony on pain and suffering are equally applicable to their Issue 3 and 4 attempts to set aside that verdict based on the contention that it included pain and suffering damages and that the pain and suffering damages award was excessive, those claims are also necessarily barred by waiver. Accordingly, we affirm the trial court’s judgment in its entirety,” Colins said.
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