May 29, 2020

The Superior Court of Pennsylvania (“Pennsylvania Appellate Court”) held in its Memorandum Opinion dated April 9, 2020 in a medical malpractice wrongful death lawsuit brought by the husband of the decedent, “Based on the trial court’s failure to examine the evidence in this case in addressing Appellants’ challenge to the excessiveness of the jury’s 10 million dollar award, and the award’s lack of consistency with other wrongful death verdicts in Pennsylvania, particularly for damages for loss of society and comfort, we conclude that the award was excessive. In sum, we affirm Appellants’ liability to Kimble, but vacate the judgment entered against Appellants and remand to the trial court for a new trial limited to the issue of damages.”

The Underlying Facts

Robert Kimble (“Kimble”) and the decedent were married in 2003, and following a divorce in 2012, remarried later that same year. Throughout the course of their marriage, the decedent suffered from debilitating back pain for which she took numerous narcotic and other pain medications. In 2013, the decedent sought treatment for her back from the defendants.

On January 29, 2014, the decedent underwent spine surgery at the defendants’ surgical facility. The surgery began around 7:20 a.m. and ended around 8:40 a.m. The decedent was discharged approximately two hours later, at 10:40 a.m., with instructions to return in two days for a post-operative checkup. Because Kimble and the decedent did not live in the area, they stayed at a nearby hotel where she could recuperate until her postoperative appointment.

At 4:49 p.m. on the day of the surgery, Kimble called the hotel’s front desk seeking emergency assistance because the decedent was not breathing. Emergency personnel transported the decedent to the local hospital where she was pronounced dead. An autopsy revealed the presence of pulmonary edema, a condition commonly observed in drug deaths involving opiates. The toxicology report also revealed the presence of multiple opioids and several central nervous system depressants (CNSDs), including Dilaudid, Flexiril, Oxycontin or Oxycodone, and Donnatal. Based on these findings, the coroner concluded that the decedent’s cause of death was the “synergistic” effect of multiple CNSDs in her blood.

Kimble filed a Pennsylvania medical malpractice wrongful death lawsuit, raising claims under the Pennsylvania Wrongful Death and Survival Acts, 42 Pa.C.S.A. §§ 8301-8302, against the Appellants. The Pennsylvania medical malpractice wrongful death jury returned a verdict in favor of Kimble and apportioned liability between the corporate defendants and the anesthesiologist (65% and 35%, respectively). The jury awarded Kimble $10 million in Wrongful Death Act damages and $10 million in Survival Act damages. The trial court granted the defendants’ motion for JNOV as to the jury’s award for the survival action, but denied their motion as to the wrongful death award. The defendants appealed.

Pennsylvania Appellate Court Memorandum Opinion

The purpose of the Wrongful Death Statute, 42 Pa.C.S.A. § 8301, is to compensate the decedent’s survivors for the pecuniary losses they have sustained as a result of the decedent’s death. This includes the value of the services the victim would have rendered to his family if he had lived. A wrongful death action does not compensate the decedent; it compensates the survivors for damages which they have sustained as a result of the decedent’s death. Under the wrongful death act the widow or family is entitled, in addition to costs, to compensation for the loss of the contributions the decedent would have made for such items as shelter, food, clothing, medical care, education, entertainment, gifts and recreation. However, the Superior Court of Pennsylvania has previously upheld damages awarded under the Wrongful Death Act for loss of society and comfort.

The Pennsylvania Appellate Court stated in the present case, “Appellants are not entitled to a new trial or remittitur based on the jury’s decision to award damages solely for loss of society and comfort … [but] [b]ased upon our scrutiny of the record, including the trial transcripts, post-trial proceedings, and the parties’ briefs, we conclude that Appellants are entitled to a new trial based on the excessiveness of the damage award.”

The Pennsylvania Appellate Court stated, “In this case, the jury heard limited evidence from both Kimble and his son regarding the nature of the relationship between Kimble and Decedent. They spoke generally of Kimble’s sadness following Decedent’s death and testified that Kimble had to move in with his mother because he did not like living alone … Because Kimble did not present evidence of economic damages arising from Decedent’s death, and the evidence he presented related to non-economic damages was limited, we cannot say, on this record, that the evidence supports the 10 million dollar damages award … [and] the 10 million dollar damages award in this case was far greater than other wrongful death awards for loss of society and comfort that this Court has affirmed.”

Source Kimble v. Laser Spine Institute, LLC, J-A01019-20.

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