The Superior Court of Pennsylvania recently affirmed the trial court’s entry of judgment on the verdict in favor of two physicians and a hospital in McNulty v. Thomas Jefferson University Hospitals, Inc. In McNulty, the plaintiffs commenced a wrongful death/survival action against the defendants alleging that the defendants breached the standard of care by: (1) leaving a surgical sponge behind the decedent’s heart during an emergent operation, (2) failing to properly check for retained sponges during and after the operation, and (3) failing to surgically remove the retained sponge for two days. The plaintiffs asserted that the defendants’ combined negligence was a substantial factor in causing the decedent to develop an infection, which remained dormant in her body for more than ten months, but ultimately led to her untimely death. However, during trial, the defendants presented evidence that the decedent did not suffer from an infection related to the retained sponge. This evidence included testimony from an infectious disease specialist who treated the decedent only days before she died. Finding this evidence persuasive, the jury returned a verdict in the defendants’ favor, concluding that the two physicians were negligent, but that their negligence was not a substantial factor in causing the decedent any harm.
Following the entry of judgment in the defendants’ favor, the plaintiffs filed an appeal to the Superior Court, arguing that the trial court erred by admitting the testimony of the infectious disease specialist on the grounds that he was not identified as a possible witness before trial. The plaintiffs further asserted that the jury’s verdict in the defendants’ favor was contrary to the weight of the evidence presented. Therefore, the plaintiffs maintained that the Superior Court should vacate the trial court’s judgment in the defendants’ favor and remand the matter to the lower court for a new trial.
However, the Superior Court rejected the plaintiffs’ arguments and affirmed the trial court’s entry of judgment in the defendants’ favor. With respect to the plaintiffs’ first allegation of error, the Superior Court held that the trial court did not abuse its discretion by permitting the defendants to call the treating infectious disease specialist to the stand even though he was not specifically identified in the defendants’ witness lists. In reaching this holding, the Superior Court observed that the plaintiffs were well aware of the treating physician’s pending testimony before trial as they attempted to preclude it by filing a motion in limine. The Superior Court further noted that, because the infectious disease specialist had treated the decedent, he was well known to the plaintiffs and their attorney and could have been interviewed by the plaintiffs at any time before trial without the need to engage in formal discovery. Therefore, the Superior Court concluded that the infectious disease specialist’s testimony was not surprising and did not unfairly prejudice the plaintiffs’ case. Accordingly, the Superior Court held that the plaintiffs’ first allegation of error was clearly without merit.
The Superior Court also rejected the plaintiffs’ second allegation of error. In support of this issue, the plaintiffs asserted that the verdict was clearly against the weight of the evidence in light of the uncontroverted testimony that the decedent was compelled to undergo an additional operation due to the defendants’ negligence in leaving a surgical sponge inside her chest. However, after noting that its scope of review was limited to determining whether the trial court’s determination was manifestly erroneous, arbitrary and capricious, or flagrantly against the evidence, the Superior Court rejected the plaintiffs’ argument on this issue. In reaching this conclusion, the Superior Court adopted the trial court’s determination that, if the only negligence attributable to defendants was that they either failed to timely discover the retained sponge or failed to perform the sponge removal operation sooner, then the jury could reasonably have concluded that defendants were not responsible for the sponge removal surgery since that operation would have been required even in the absence of negligence. Therefore, since the Superior Court found the plaintiffs’ allegations of error to be completely without merit, the Court affirmed the trial court’s entry of judgment in the defendants’ favor.