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A jury verdict for the defense in a left-behind-sponge medical malpractice action was warranted because even though the doctor-defendants were found negligent, the plaintiffs had failed to make a connection between the retained sponge and the damages being sought, a Philadelphia judge has ruled. The 4-inch square surgical sponge at issue in McNulty v. Thomas Jefferson University Hospital had been placed behind Sheila McNulty’s heart during emergency surgery in November 2000. It was removed in a separate procedure two days later after its presence was picked up by an X-ray. Continued heart problems forced McNulty, then 58, back to the hospital less than a year later. She died following another round of emergency surgeries in October 2001. McNulty’s survivors claimed that the sponge was inside McNulty’s chest long enough to trigger an infection that ultimately caused her death. After a 10-day trial and two days’ deliberations in the fall of 2005, a 12-member jury found that both doctor-defendants – John Mannion, who led the November 2000 procedures, and Richard Morrison, who assisted – had been negligent, but that their negligence had not been a substantial factor in bringing about McNulty’s harm. Philadelphia Common Pleas Judge Marlene F. Lachman, who presided at trial, issued an opinion late last month urging the Superior Court to uphold the verdict. “As plaintiffs concede, the jury was free to believe defendants’ evidence that, because of the emergent nature of the situation in the ICU [in November 2000], the defendants were not negligent in not pausing to conduct a proper sponge count while trying to prevent Mrs. McNulty from bleeding to death,” Lachman wrote. “The jury was also free to find that the defendants were negligent by not discovering the sponge sooner or that the sponge-removal operation should have been performed sooner. “Neither of these later acts of negligence, however, caused the injury of which plaintiffs complain – the necessity for another operation to remove the sponge.” Plaintiffs’ attorney Jeffrey Killino of Woloshon & Killino in Philadelphia said in an interview that “a new trial is the perfect remedy for this situation.” “This judge is fighting tirelessly to uphold the verdict when the reality is the outcome was against the weight of the evidence,” Killino said. Mannion’s attorney in the case, Daniel Ryan of O’Brien & Ryan in Plymouth Meeting, told The Legal last fall that the members of the jury related to him post-verdict that expert testimony led them to believe the real cause of death had nothing to do with the retained sponge. According to fall 2005 interviews with lawyers from both sides, there were no offers from the defense in McNulty. Court documents show that the plaintiffs originally demanded $3 million, which included medical bills, loss of Social Security and loss of services because McNulty provided childcare for her grandchild. Lachman wrote that after her fall 2000 hospital stay, McNulty went home and “made excellent progress.” Nine months later, she was taken to the hospital after it was suspected she was suffering a transient ischemic attack, also known as a “mini-stroke.” According to the opinion, testing revealed a mass in her left atrium, but the pathology report showed the mass was a clot and not an infective vegetation. Complications dogged McNulty’s fall 2001 hospitalization, according to the opinion, and she died in early October after a mitral valve replacement. “Plaintiffs admit the evidence was conflicting as to whether the sponge caused sepsis and other conditions leading to Mrs. McNulty’s death 10 months later,” Lachman wrote. In response to the plaintiffs’ request for a new trial, Lachman stressed that the plaintiffs had neither presented the jury with any evidence as to the damages specifically ensuing from the sponge-removal operation in November 2000 nor asked the jury to return a separate award with respect to those costs. “This court was not surprised or shocked by the jury’s verdict,” Lachman wrote. Killino said that having the jury consider McNulty in the manner suggested by Lachman would have required a verdict sheet with “multiple avenues” for various causations and damages. “It’s not consistent with the way cases are tried,” Killino said. The hospital’s attorney in the case, Roseann Brenner of Goldfein & Joseph in Philadelphia, said that she believes the plaintiffs’ multi-pronged case against the defendants led to the case’s unusual verdict. “There were multiple theories of negligence presented by the plaintiff,” Brenner said, adding later, “I don’t think that a finding of negligence in this matter also required a finding of substantial factor of causation.” (Copies of the 24-page opinion in McNulty v. Thomas Jefferson University Hospital , PICS No. 06-1743, are available from The Legal Intelligencer . Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information. Some cases are not available until 1 p.m.)

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