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A medical expert must testify that a person in a coma experienced pain in order for a plaintiff to make a case for pain and suffering damages, a divided Pennsylvania Superior Court panel has ruled. In Cominsky v. Donovan, a wrongful death and survival action, the superior court concluded that Philadelphia Common Pleas Judge Mark I. Bernstein erred in allowing lay witnesses to testify at trial about the pain they said they watched their mother suffer while she lay in a coma. The lay witnesses, Cynthia Woll and Robert Cominsky, were not qualified medical experts, explained Senior Judge Phyllis W. Beck. The plaintiff should have presented an expert to opine that Woll and Cominsky’s mother, Pearl Cominsky, could experience pain despite the level of her persistent vegetative state, Beck said. The only medical expert to testify on whether Pearl was conscious of pain while in a coma said she was not, Beck noted. As for medical terms and phrases on the hospital record that indicated Pearl was responsive to “deep sternal stimuli with internal rotation of arms” and exhibited “decerebrate posturing,” “these terms cannot be interpreted by lay jurors without the aid of expert medical testimony and, here, the only expert witness to explain the terms expressly denied that they showed anything other than reflexive responses,” Beck wrote. Judge Michael T. Joyce dissented in a separately written opinion, saying the lay witness testimony issue had not been properly preserved for appellate review because counsel for the defendant hospital had not stated specifically what he was objecting to when he challenged the lay witnesses’ testimony and moved to strike it from the record. Pearl Cominsky’s family members brought the wrongful death and survival action against Holy Redeemer Hospital and Medical Center in Meadowbrook and others after she fell into a coma and died following knee-replacement surgery, according to the opinion. The family alleged the hospital was negligent in its care of Cominsky following her surgery, causing the injury to her brain and her death. They said that while in a coma, Cominsky, who was near 80, had felt pain, fear and anguish, according to the opinion. In 2001, a jury found the hospital liable and awarded $950,000 to Pearl Cominsky’s estate for pain and suffering and $1.5 million to her husband for loss of consortium. The hospital did not challenge the jury’s liability finding but rather that its pain and suffering award was based on inadmissible evidence. If an individual was unconscious from the time of injury until death, a plaintiff cannot recover for pain and suffering in a survival action under state law. “Because the trial court erred in allowing lay testimony on this issue, and because it is clear that such emotional testimony could have, in addition to confusing the jury, prejudiced its decision, we reverse the trial court’s ruling on this issue, vacate the judgment and remand for a new trial on damages only,” wrote Beck, who was joined by Judge Joan Orie Melvin. The court also vacated the loss of consortium claim because such claims depend on the injured spouse’s right to recover damages, Beck explained. Attorneys for both parties said a retrial would not occur because the matter was settled for an undisclosed amount before the superior court reached its opinion. “We decided to partially buy off the risk of losing the appeal,” said the attorney for the defendant hospital, Stephen A. Ryan of Marshall Dennehey Warner Coleman & Goggin. “This was a tough case, and it could have gone either way.” Kenneth M. Rothweiler of Eisenberg Rothweiler Schleifer Weinstein & Winkler represented Cominsky’s family. He believed the testimony from Cominsky’s adult children would have been more competent than an expert saying that Cominsky had felt pain while in a coma, he said. “In my mind it was better testimony because it was testimony from people who knew the decedent better than anybody: her kids,” Rothweiler said. “I thought it would be more impressive to the jury, and it was based on the award we got.” Rothweiler noted that the expert testimony “is tough testimony to get.” The superior court’s decision doesn’t necessarily mean a lay witness cannot testify about an unconscious person’s pain — only that a medical expert needs to first establish that the person was capable of feeling pain in their state, Ryan said. Rothweiler agreed that the expert and lay testimony could both be presented. In her opinion, Beck distinguished the Cominsky case from others in which lay witnesses have been permitted to testify about the pain of a person who was conscious or not in a coma. Joyce’s dissent stated that in order for Ryan to have preserved the evidentiary issue for review, he should have objected to Woll and Robert Cominsky’s testimony more specifically. “[T]he trial transcript shows that while appellant’s counsel uttered the word ‘objection’ when Cynthia Woll was being questioned about her mother’s pain, counsel did not specify grounds for the objection,” Joyce wrote. Ryan should have stated the legal basis for his objection, Joyce said. But Ryan argued that if Bernstein had not understood the legal basis of his objection, he would have asked him for it at the time or later when he brought it up in post-trial motions. “Everybody understood my objection,” Ryan said.

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