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A split Delaware County jury has returned a defense verdict in favor of a surgeon who was sued for medical malpractice for allegedly botching two spinal surgeries on a woman. Dr. David S. McCloskey was found not negligent regarding allegations that he inserted two spinal catheters into a patient incorrectly on two separate occasions, causing each one to eventually break. The 10-2 verdict in Hofmann v. McCloskey came down in Judge George A. Pagano’s court on Feb. 1 after a little over an hour and a half of deliberation. The plaintiff’s attorney, Gerald B. Baldino Jr. of Sacchetta & Baldino in Media, said the verdict was another example of Delaware County’s tendency to side with the defense in medical malpractice trials, a trend that recent statistics seem to support. Plaintiff Janice Hofmann had sought unspecified damages from the general surgeon after both of the morphine-delivering catheters he and an anesthesiologist implanted in her broke, causing what the plaintiff described in the pretrial statement as pain and withdrawal symptoms and requiring additional corrective surgery. According to pretrial statements, Hofmann originally filed claims in August 2003 against a number of defendants, including the anesthesiologist who assisted McCloskey during the surgeries; Medtronic, which manufactured the catheters; and the medical centers where the surgeries took place. Defense attorney Naomi A. Plakins of the Doylestown-based firm Plakins & Associates said the products liability claim against Medtronic was quickly eliminated because of federal pre-emption, and the plaintiffs eventually agreed to drop claims against everyone but McCloskey, who, they alleged in court papers, deviated from the standard of care in each surgery by tightening a suture too tightly around the catheter after a protective needle was removed, causing the catheter to break. “Our criticism was of the surgical aspect [of the procedures] and we were satisfied that [the anesthesiologist] did not have any involvement in the surgical aspect,” said Baldino. Baldino said the medical centers were also dropped from the claim because McCloskey was not an employee of any of them. According to Plakins, the defense – utilizing expert testimony from Dr. Peter Staats, an adjunct professor of anesthesiology and pain management at Johns Hopkins University and a surgeon who said he has performed hundreds of these operations – argued that not only did both procedures meet the standard of care but also that the crack in the first catheter occurred about one centimeter above the knot in the suture and therefore could not have been caused by it. Plakins credited Staats’ testimony as the major influence on the jury’s final decision to side with her client. “I think the jury listened very attentively and came to the correct conclusion that my client easily met the standard of care,” she said. “They relied on the defense expert who had excellent credentials.” Baldino said he was disappointed by the outcome of the trial but not “terribly surprised,” citing the large majority of medical malpractice trials in Delaware County that end in defense verdicts. According to Delaware County district court administrator Gerald C. Montella, there were 14 medical malpractice trials last year and all but one of them resulted in either a defense verdict or zero dollars for the plaintiff. In 2006, 17 out of 18 were in favor of the defense, Montella said. “It’s an uphill battle trying a medical malpractice case in Delaware County,” Baldino said. “But, we got a very fair trial from Judge Pagano and I respect the jury’s decision, even though I don’t necessarily agree with it.” Still, the trial didn’t go entirely smoothly for the defense. Plakins said she tried multiple times to introduce into evidence the Medtronic package insert that accompanied each catheter, which advised the surgeon to remove the protective needle before securing the catheter, but was denied by Pagano each time on the grounds that it was a learned treatise, a point Plakins still disputes. “My contention was that this is not a learned treatise because it certainly does not have universal significance to all other products like it, only to that specific manufacturer’s product,” she said. “It’s hardly an authoritative legal treatise; the usual constraints don’t apply. Even if we weren’t admitting it to show that it was the only way to do [the procedure], we were admitting it to show that [McCloskey] was on notice that such a recommendation had been made by the manufacturer.” Although it didn’t ultimately affect the outcome of the case, Plakins said the barring of the package insert from evidence did shake her confidence at the time. “I definitely thought the case had been jeopardized by the judge’s ruling,” she said. “I knew we had a great expert witness, so we were still disinclined to settle because we knew we had some firepower. But, our defense had been injured and I knew the plaintiff would raise the [package insert] issue on appeal if we didn’t win.” Baldino said he currently has no plans to appeal the verdict. “The judge made very good rulings on the liability aspects of the case,” he said. “I haven’t identified any abuse of discretion or error of law. At this point, I don’t think there will be any appeals.”

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