New trial for survival damages a must after testimony dismissed

Tanya Albert Henry , Contributing News Writer

A Pennsylvania plaintiff in a medical liability case is asking the court to upend common practice and settled principle in how wrongful death and survival awards are rendered as lump sums in such cases.

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If the court allows the standard to be changed and requires an itemized verdict sheet in a case in which the plaintiff’s medical expert testimony was ultimately dismissed as being improper, it would allow verdicts on erroneous grounds and take away the opportunity for a new trial, which would be the appropriate remedy in the situation.

“Allowing improper expert testimony to go unremedied will increase the number of invalid plaintiffs’ verdicts, adversely impact the ability of health care providers to obtain cost-effective malpractice insurance, and increase health care costs for all,” the Litigation Center of the American Medical Association and State Medical Societies and the Pennsylvania Medical Society (PAMED) tell the Supreme Court of Pennsylvania.

The two associations jointly filed an amicus brief that supports the physician and asks the court to reject the plaintiff’s arguments in the case, Cowher v. Kodali.

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Karen Cowher sued cardiologist Sobhan Kodali, MD, and others after her husband, James L. Cowher II, died following a cardiac arrest six weeks after seeing the doctor. James Cowher saw Dr. Kodali for chest pain that radiated to both arms, often with shortness of breath, dizziness and tingling in his fingers.

Dr. Kodali performed an electrocardiogram, which was normal, and a lipid test. He concluded the chest pain was “not cardiac.” James Cowher was jogging six weeks later when he went into cardiac arrest and the coroner determined the cause of death was acute myocardial infarction due to severe coronary artery disease.

During the trial, Karen Cowher’s cardiology expert testified that he “believed” James Cowher experienced pain and suffering—the only expert to suggest pain and suffering. Court documents show he applied no medical expertise or other analysis to support his belief. The cardiology expert acknowledged his sole basis for that belief was testimony from a neighbor who said Cowher dropped to his knees and asked for help about three minutes before losing consciousness.

At trial, a jury awarded Karen Cowher $2.4 million in wrongful death damages and $3.8M in damages for the survival claim. On appeal, the Superior Court found that the expert testimony was not admissible and was prejudicial.

Karen Cowher argued to that court that the award could have included pain and suffering for the six-week period between when her husband visited the cardiologist and fatal cardiac arrest because the defendants didn’t request an itemized verdict sheet. But the Superior Court disagreed with that argument, saying “the injury here was decedent's fatal cardiac event [2-3 minutes of pain and suffering], not Dr. Kodali's examination or diagnosis.”

The court vacated damages for the survival claim, but left the liability verdict and wrongful death damages award in place “because neither the liability verdict nor the wrongful death damages award could have been affected by the erroneous admission of expert testimony on pain and suffering.” It ordered a new trial only for the survival claim.

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Karen Cowher appealed the decision to the Supreme Court of Pennsylvania, which is now considering her argument that under the Pennsylvania’s Survival Act, the defense counsel was required to ask for an itemization of the jury’s survival award. Without the itemized verdict slip, she argues, they waived their right to challenge the pain and suffering award.

Physicians disagree.

“Medical practitioners and their counsel have a substantial interest in maintaining a reasonable—not insurmountable—standard of prejudice that must be met to remedy the improper admission of expert testimony,” the AMA Litigation Center and PAMED brief tells the commonwealth’s highest court. “The court has never required an aggrieved party to establish ‘how much’ of a verdict was attributable to improper testimony. … This court should affirm the superior court’s award of a new trial on survival damages.”