March 5, 2021

The Superior Court of Pennsylvania, in its non-precedential decision filed on February 8, 2021, upheld a Pennsylvania medical malpractice jury’s determination of liability in favor of the plaintiff and affirmed the wrongful death portion of the damages award but vacated the survival claim damages awarded by the jury, holding “it is clear from the verdict that the jury awarded Plaintiff a high amount of pain and suffering damages, even though the evidence showed that Decedent was conscious for only approximately three minutes. Damages for pain and suffering cannot be awarded for periods that Decedent was unconscious.”

“The only evidence of economic damages at trial was Plaintiff’s economic expert’s testimony and the highest amount of economic damages to which the economic expert testified was $2,700,498. The jury’s survival award was $3,833,000, $1,132,502 more than Plaintiff’s evidence of economic damages … Plaintiff’s counsel represented to the trial court that the only pain and suffering claim was for the brief period of the fatal cardiac event and the only evidence of pain and suffering that Plaintiff’s counsel argued to the jury was pain and suffering during that event.”

The Underlying Facts

On July 11, 2016, the 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. The 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.

The decedent’s primary care physician arranged for the decedent to be seen by an affiliated cardiology group, and defendant Dr. Sobhan Kodali, a cardiologist in that group, saw the decedent on July 13, 2016. The 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. The decedent also reported to Dr. Kodali that he was regularly running for exercise without symptoms. Dr. Kodali was aware that the 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 the decedent’s chest pain was “not cardiac,” stating that “[n]o further evaluation is necessary at this time” and that “[o]verall the clinical picture is suggestive of anxiety/panic attacks.”

On August 23, 2016, the decedent suffered cardiac arrest while jogging and died. The pathologist who performed an autopsy on the decedent found that the decedent had blockages of 80% and over 90% in the left main and left anterior descending coronary arteries and listed the cause of the decedent’s death as “[f]avor cardiac arrhythmia secondary to ASCVD [arteriosclerotic cardiovascular disease].” The coroner reported the cause of the decedent’s death as acute myocardial infarction due to severe coronary artery disease.

The plaintiff’s widow filed her Pennsylvania medical malpractice wrongful death and survival claim lawsuit, alleging that Dr. Kodali was negligent in failing to recognize that the decedent was suffering from unstable angina and in failing to diagnose his severe coronary artery disease.

The plaintiff’s cardiology expert testified at trial, “I believe he did suffer conscious pain and suffering on that run on August 23rd when he realized that something was very wrong before he became unconscious.” A neighbor testified that she saw the decedent walking slowly, kneeling, and laying down, that the decedent said “I need help,” and that the decedent appeared to be “in pain” and “not himself” and “was very distraught.” The neighbor also testified that the decedent was conscious for approximately three minutes before he passed out.

The Pennsylvania medical malpractice jury returned its verdict in favor of the plaintiff and against the defendants, awarding the plaintiff $2,475,000 in wrongful death damages and $3,833,000 in damages on the survival claim. The defendants appealed.

Superior Court of Pennsylvania Decision

The Superior Court of Pennsylvania stated that to be admissible, expert opinion testimony must go beyond the knowledge possessed by lay persons. In addition, the expert testimony must be based on application of the witness’s expertise and must not merely be a lay opinion offered by an expert.

The Superior Court of Pennsylvania held that the plaintiff’s cardiology expert’s opinion on the decedent’s pain and suffering did not satisfy these standards: he did not apply his medical expertise to the facts to which the neighbor had testified nor did he point to or rely on any medical or other scientific authority or principles beyond the knowledge of lay persons. Instead, he simply adopted the neighbor’s fact testimony as his purportedly expert opinion. As such, the testimony was nothing more than the expert’s personal opinion and was not admissible expert testimony. “The trial court therefore erred in admitting this expert testimony that Decedent experienced conscious pain and suffering.”

The Superior Court of Pennsylvania held: “The fact that the damages verdict that included pain and suffering was over $1 million more than Plaintiff’s expert’s highest calculation of economic damages is sufficient for the Court to conclude that this verdict could have been affected, even if an actual amount of pain and suffering damages cannot be determined. Given the fact that the jury awarded a high amount of pain and suffering damages for a brief period of time coupled with the undue weight that jurors are likely to give to expert testimony, we conclude the admission of Plaintiff’s cardiology expert’s opinion on pain and suffering was prejudicial error. The expert testimony on pain and suffering, however, could have only affected one part of the jury’s verdict, the amount of damages that it awarded on Plaintiff’s survival claim, and could not have affected the liability verdict. No new trial is therefore necessary on liability. Evidence on pain and suffering
likewise had no possible effect on or the amount of the wrongful death award, as this award includes only Plaintiff’s losses as Decedent’s widow, not damages suffered by Decedent … Case remanded for a new trial on damages limited to Plaintiff’s survival claim.”

Source Cowher v. Kodali, J-A27035-20.

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