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By Ruth Bryna Cohen
Of the Legal Staff
Kenneth M. Rothweiler won a kind of verdict he said he had never seen in his 20 years of practice Thursday when a 12-person jury in the Philadelphia Court of Common Pleas awarded his client $2.45 million in a wrongful death action, $1.5 million of which went for loss of consortium.
Why was the verdict in Cominsky v. Holy Redeemer Health System so unusual? By the time of trial, Seymour Cominsky, who was litigating for consortium damages in the wrongful death of his wife, Pearl, was already dead.
"I think it showed the jury's strong feeling about what happened, that even though Pearl and her husband died, the estate should still recover for the hospital's negligence," said Rothweiler, a partner with Eisenberg Rothweiler Schleifer Eisenberg Winkler & Rothweiler. Rothweiler and Associate Daniel Jeck tried the 3 ½-day trial before Judge Mark I. Bernstein.
ELECTIVE SURGERY
On June 27, 1996, 71-year-old Pearl Cominsky entered Holy Redeemer Hospital for an elective knee replacement. Following the surgery, she was under the care of Registered Nurse Lucy Leszczynski for telemetry and blood pressure monitoring. The treating physician had given orders for Cominsky's blood pressure to be checked every four hours, Rothweiler said.
Pearl was stable for 12 hours post-operatively, Rothweiler said, and at 8 p.m. on June 27, she showed a pressure reading of 128/72. "But just after midnight, her blood pressure started to drop. By 12:15 a.m., she was down to 90/56, and her temperature was elevated to 101," Rothweiler said.
"The nurse did not call the house physician. She re-checked Cominsky at 1 a.m. and said she 'looked okay,' but she failed to retake Cominsky's pressure." At 1:45 a.m., he said, Cominsky was reported to be "severely hypotensive." Her lips were blue. She was transferred to the intensive care unit at Holy Redeemer, where she was intubated and placed on a respirator.
Cominsky remained in a comatose state, diagnosed as having suffered respiratory arrest with hypoxic encephalopathy. She died July 17, 1996.
CLAIMS
In 1998, Seymour Cominsky sued individually and as administrator of his wife's estate for wrongful death, loss of consortium and negligence. He died about two years after she did, according to Rothweiler.
The original theory of the case was that Cominsky was on psychotropic medications that caused an adverse interaction with her anesthesia and that her physicians were to blame for not advising her to stop taking those medications. But the plaintiff dismissed the original complaints against Cominsky's psychiatrist, knee surgeon, internist and anesthesiologist when it was determined the fault lay with Nurse Leszczynski, Rothweiler said.
"Holy Redeemer argued that Leszczynski more than complied with the doctor's orders, because she observed Mrs. Cominsky at 1 a.m. and at 1:45," Rothweiler said - far more frequently than four-hour intervals. "But what she should have done was to call the attending doctor at 12:15, WHEN Cominsky's pressure dropped," he said. "And she didn't."
Rothweiler said he subpoenaed hospital protocols and descriptions of Leszczynski's job. "It said (nurses) were to 'report all changes [in a patient's condition] to the appropriate person,'" he said. "But part of the protocol said to notify the nurse in charge, and that was Leszczynski herself," he said.
Rothweiler presented one witness, Dr. Howard Simon, a board-certified critical-care physician affiliated with the University of Syracuse Hospital in Syracuse, N.Y.
Stephen A. Ryan of Marshall Dennehey Warner Coleman & Goggin represented Holy Redeemer. He presented one witness, Dr. David S. Prince. Prince is board-certified in pulmonary and critical-care medicine and is affiliated with Bryn Mawr Hospital.
VERDICT
The jury deliberated 4 ½ hours before returning its verdict. There were no pretrial agreements, and no offers of settlement were made before or during the trial, Rothweiler said. Leszczynski was not held personally liable because she was an agent of Holy Redeemer, Rothweiler said.
The jury awarded $1.5 million in loss of consortium damages for Seymour Cominsky's loss of the companionship of his wife. Pearl Cominsky's estate was awarded $950,000 in a survival action for the 19 days she lived following her post-op injuries.
"I would go out on a limb and say this is probably the first time in Pennsylvania that loss of consortium damages in this amount have been awarded after the recipient is dead," he said. He plans to petition for delay damages between $400,000 to $500,000, which would bring the total "molded" verdict to $3 million.
Ryan said he plans to file a motion for post-trial relief, as soon as the notes form the transcript are complete.
"I think it's fair to say both sides knew either one of us could win or lose this case, " he said Friday. "But both sides were surprised by the amount of the verdict."
Ryan said the issue of whether loss of consortium damages may properly be awarded to a decedent's estate is "unsettled." "There is debate as to whether a unique and private rights exists to receive those damages under the circumstances," he said.
Rothweiler disagreed.
"It's clearly in the wrongful death statute," he said.
Source: The Legal Intelligencer
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