Last Updated: Oct 6, 2022
On September 29th, the Pennsylvania Supreme Court issued an unfavorable ruling in a medical malpractice case in which PAMED had filed an amicus brief. The Supreme Court reversed the Superior Court’s granting of a new trial, finding that the defendant physician had waived his ability to seek a new trial on the issue of pain and suffering damages by having failed to request an itemized verdict sheet at trial.
In Cowher v. Kodali, St. Luke’s University Health Network and St. Luke’s Cardiology Associates, plaintiff Karen Cowher sued for wrongful death and survival action. Cowher was the widow of James Cowher, II, who had died of a heart attack while running in his neighborhood. Complaining of chest pain, he had been examined by the defendant cardiologist prior to his fatal run and been told his clinical picture was suggestive of anxiety/panic attacks. An autopsy revealed that he had suffered from severe atherosclerotic cardiovascular disease.
Prior to trial, defendants attempted to prevent the introduction of any pain and suffering evidence as the eyewitness testimony of his neighbor would be speculative and the expert witness’ report did not adequately address the issue. At trial, defendants proposed, and the court used, a verdict slip with a single line for wrongful death damages and a single line for survival damages. The jury returned a verdict for the plaintiff and awarded more than two million dollars in damages for wrongful death and more than three million dollars in damages on the survival action.
On appeal, defendants sought a new trial on the issues of damages, in part claiming that the expert testimony on pain and suffering was erroneous. Pain and suffering damages potentially constituted a portion of the survival damages. The Superior Court agreed and ordered a new trial.
On appeal to the Supreme Court, the high court focused on the verdict slip and not the expert testimony on pain and suffering. The Court determined that the general verdict rule applied to preclude a new trial. The general verdict rule provides that when a jury returns a general verdict involving two or more issues and its verdict is supported as to at least one issue, the verdict will not be reversed on appeal. Here, since sufficient evidence to award damages on the survival action was introduced at trial aside from the pain and suffering evidence, and the defendants had not sought to itemize the types of damages, the defendants were deemed to have waived the damages issue and were precluded from seeking a new trial on the issue. The Supreme Court added that the general verdict rule has been the law of Pennsylvania since a 2009 opinion of the Court. The Court remanded the case to the Superior Court for consideration of unresolved appellate issues, but any favorable change related to the damages issue is unlikely.