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A divided Philadelphia jury recently returned a defense verdict in what one defense attorney described as a “petty, ugly and bitter” medical malpractice case that was potentially worth $3.6 million for the plaintiff. In a 10-2 vote handed down on Feb. 21 in Philadelphia Common Pleas Judge Joseph I. Papalini’s courtroom, the jury cleared Dr. Randy K. Metcalf and Dr. Brian P. Priest, as well as the Frankford Hospital, Torresdale Division in Philadelphia, of allegations that they were responsible for the death of 47-year-old Patricia Bruckshaw, who died following heart surgery. After three days of deliberation, the 12-member jury � which included three of eight alternate jurors who were shuffled in during the five-week trial process � found Metcalf and Frankford Hospital not negligent and Priest negligent but without causation. Dean F. Murtagh of Philadelphia firm German Gallagher & Murtagh, who was one half of Priest’s and Metcalf’s defense team, said the narrow victory of a negligence-without-causation verdict was a “scary way, but a neat way, to win a case.” But while he said he was ultimately happy with the verdict, Murtagh said the trial was not an easy one to slog through. The lengthiness of the proceedings, he said, was due in part to time-consuming jury selections but also to a “petty, ugly and bitter” trial constantly halted by objections. “There was seemingly so much combat throughout the trial because of [the plaintiff's] objections,” he said. “We spent a lot of time in sidebar so the judge could sort out objections. A lot of times, objections you thought had been put to rest were renewed and re-argued.” Frankford Hospital’s attorney, Medford J. Brown III of Philadelphia firm Goldfein & Joseph, had even stronger feelings about the trial, calling it “very unpleasant.” “The same battle had to be fought almost every day,” he said. But the plaintiff’s attorney, George J. Badey III of Badey Sloan & Digenova, said in a response via e-mail that it was the defense that dragged down the proceedings. “To some extent all trials are contentious in one way or another, but in this case the defendant doctors refused to answer numerous questions at deposition on the grounds that the questions called for ‘expert’ responses,” he said. “Defense counsel excused this during the depositions by assuring that [Metcalf and Priest] would not testify as ‘experts’ at trial, but only on the ‘facts’ of what they did or did not do. However, at trial, the two physician defendants each spent several days on the stand testifying as ‘experts’ and injecting entirely new issues, new exhibits and new defenses into the case. This avalanche of new theories, evidence and exhibits made the trial more contentious.” Badey said any objections he made were “necessary” and were largely “in response to the new theories, exhibits and defenses injected into the case during the trial.” According to court documents, in Bruckshaw, et al., v. Frankford Hospital, et al., plaintiff Thomas J. Bruckshaw, on his own and on behalf of his wife’s estate, had sought $3.6 million from the doctors and the hospital after what he believed to be neglectful care of his wife post-surgery. The amount was partially based on an assessment by the Center for Forensic Economic Studies that estimated the financial impact of Bruckshaw’s death on the family due to the loss of her earnings, retirement benefits and the value of household services. Court documents state Patricia Bruckshaw underwent aortic valve repair and a mitral valve replacement on April 25, 2003, to try to correct problems concerning blood flow to and from her heart. Priest performed the procedure without any noted complications. However, upon completion of the surgery, it was found that Bruckshaw’s left ventricle was pumping out a dangerously low amount of blood. She was taken to the intensive care unit early that afternoon and remained in Priest’s care until midnight when Metcalf took over, court documents said. At around 10 a.m. on April 26, after a previously unsuccessful attempt at 6 a.m., Metcalf installed an intra-aortic balloon pump (IABP), a device designed to increase blood flow from the heart, but Bruckshaw’s condition worsened. She was taken to Temple University Hospital for a possible heart transplant but passed away on the evening of April 27 from cardiac arrest, the result of complications that can occur when an IABP is removed, according to Murtagh’s clients’ memorandum. The plaintiff’s counsel said in the pretrial memorandum that her fragile state had been due to multiple myocardial infarctions � tissue damage caused by lack of oxygen to the heart � which they said she suffered because of Priest’s and Metcalf’s neglect in the hours directly following her surgery on April 25. Murtagh said the plaintiff’s counsel ignored the “mechanism of death” � the IABP � during the trial, instead focusing on the infarctions as the cause of death. “I told the judge it was like the big pink elephant in the room that no one wants to talk about,” he said. Plaintiff’s counsel alleged in the memorandum that during the time period immediately following surgery Priest failed to perform tests in a timely manner and administer the proper medication to Bruckshaw. They also alleged that although Metcalf came on duty at midnight, he neglected Bruckshaw until 6 a.m. and was never alerted to the patient’s increasingly deteriorating condition by any of the nurses on duty. The plaintiff also claimed that if the IABP had been installed earlier, Bruckshaw’s heart would have received the oxygen it needed. The defendants, Priest and Metcalf, contended in their pretrial memorandum that, while they took all the appropriate measures to try to save her, Bruckshaw was already in extremely poor health long before the surgery due to advanced heart disease, which they claimed was misdiagnosed as asthma by her family doctor as early as 1996. Ultimately, the jury found that Metcalf did all he could for Bruckshaw and cleared both him and Frankford Hospital of negligence. In Priest’s case, however, the jury felt he did not perform all of the appropriate postoperative procedures in a timely manner following surgery but concluded that he was not ultimately responsible for her death and settled on a verdict of negligence without causation. Murtagh said, based on post-trial jury feedback relayed to him by the judge, that the testimony of one of the defendants’ expert witnesses, Dr. W. Clark Hargrove III, a cardiothoracic surgeon at the Presbyterian Medical Center and Pennsylvania Hospital and a professor of cardiothoracic surgery at the University of Pennsylvania, was influential in securing Priest’s verdict. According to Murtagh, Hargrove testified that, while he did believe Priest met the standard of care, at his hospital they test for oxygen levels in the heart every hour, whereas Priest didn’t administer the test for an entire eight-hour period. Murtagh said members of the jury indicated to the judge after the trial that they felt Hargrove’s willingness to point out disparities between Priest’s methods and his own actually gave him more credibility in his overall defense of Priest. “You win in odd ways sometimes,” said Murtagh. Both Murtagh and Brown applauded the jury’s ability to make sense of a long, confusing trial. “The jury was pretty perceptive,” Murtagh said. “The verdict shows the jury paid attention the whole time,” Brown added. “They really gave careful consideration to the evidence. We were very lucky to have people who could sit for that period of time and actually pay attention.” Badey said he and his client have filed a post-trial motion for a new trial.

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