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A Philadelphia jury recently found in favor of the doctors in a medical malpractice case involving a retained sponge, even though it found the defendants negligent, according to attorneys involved in the case. In McNulty v. Thomas Jefferson University Hospital, et al., Thomas McNulty argued on behalf of his wife’s estate that two doctors provided below the standard of care when they left a sponge inside Sheila McNulty for two days after performing an emergency follow-up procedure to heart surgery on his now deceased wife, according to court documents. After two days of deliberation, the 12-member jury found the defendants negligent for not removing the sponge sooner. The jury did not find the defendants liable, however, suggesting there was not enough causation linking the sponge to the death of McNulty nearly a year later, lawyers said. According to defendant John D. Mannion’s attorney, Daniel F. Ryan of O’Brien & Ryan in Plymouth Meeting, Pa., the jury told him after the case that expert testimony led them to believe the real cause of death had nothing to do with the retained sponge. According to both sides, there were no offers from the defense in this case. Court documents note the plaintiff originally requested $3 million, which included medical bills, loss of Social Security and loss of services because McNulty provided childcare for her grandchild. According to court documents, Sheila McNulty, then 58, underwent ventricular septal defect repair surgery under the care of Thomas Jefferson University Hospital surgeon Mannion and resident Richard C. Morrison, three days after suffering a heart attack. Several hours after the surgery, McNulty developed bleeding while in the intensive care unit. Mannion was in the unit at the time and was able to open McNulty’s chest to control the bleeding, with conditions the court documents termed “less than sterile.” After the emergency surgery, there was no post-operative X-ray taken to check for foreign objects in the body, which is a hospital procedure when sponge counts cannot be performed because the surgery was done outside of an operating room, according to court documents. The defendants argued the patient was not stable enough to undergo the X-ray. An X-ray was performed the following day, according to court documents, and the radiologist noticed oddities around the heart, noting that in her report without orally informing any doctors. A second X-ray was done the next day, and the radiologist reported the same findings to Mannion who immediately operated on McNulty, removing a Raytec sponge. The sponge was never cultured and, in fact, was thrown away, according to McNulty’s attorney, Jeffrey B. Killino of Woloshon & Killino in Philadelphia. A little less than a year later, McNulty was admitted to Lankenau Hospital under the care of different doctors after suffering a transient ischemic attack, where it was found that an infection had grown into vegetation on her mitral valve. The infection, according to the plaintiff, was caused by the delay in removing the sponge and created severe mitral valve regurgitation. This put McNulty back on the operating table to attempt a mitral valve replacement. The surgery was unsuccessful, according to court documents, and McNulty died in the operating room. Ryan argued that the vegetation on McNulty’s mitral valve was not due to a slow-growing infection from the sponge as the plaintiff argued, but was in fact a noninfectious thrombosis, or blood clot. He also argued that the doctors were not negligent in postponing the X-rays and, subsequently, the removal of the sponge. “Under these emergency circumstances, the doctors acted with the highest of care,” Ryan said. “It was removed at a time that was safest for the patient.” Ryan said McNulty was close to death several times while at Jefferson, and Mannion and Morrison saved her life. Killino said he is in the process of filing post-trial motions and will most likely appeal on three issues. First, he said that because negligence was found, McNulty’s estate should be awarded damages for at least the second surgery to remove the sponge. Secondly, Killino objected to the allowance of defense expert Mark Ingerman, an infectious disease expert, to testify even though he was not mentioned in the defendant’s pretrial memorandum. Killino said Ingerman testified that the presence of bacteria on McNulty’s valve was unconfirmed. “He attacked our strongest evidence,” Killino said. The third issue that Killino expects to bring on appeal is the denial by Philadelphia County Court of Common Pleas Judge Marlene F. Lachman of his request for an adverse inference instruction to the jury about the spoliation of the retained sponge. Killino argued that because Mannion and Morrison threw out the sponge, the jury should look at it as a “consciousness of guilt” act. Killino argued that hospital policy would have required them to save the sponge for culture. One defendant, Richard N. Edie, Mannion’s partner, was dismissed before the trial, according to both attorneys. The plaintiff’s experts included cardiothoracic surgeon Albert C. Beatty, who did his residency at Jefferson, and infectious disease expert Neil Crane.

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