The opinion of the court was delivered by: HERLANDS
HERLANDS, District Judge:
This case arises out of a series of surgical procedures performed on David Lever, the plaintiff, while he was a patient at the Manhattan Veterans Administration Hospital (MVAH) in 1962. Jurisdiction is based on the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq. (1964), and 28 U.S.C. § 1346 (1964).
After trial of the action to the Court, sitting without jury, the Court reserved decision on defendant's motion to dismiss on the ground that plaintiff failed to prove a cause of action by a fair preponderance of the credible evidence. (Trial Transcript at 779, hereinafter referred to by page number). The Court hereby grants defendant's motion and orders that the complaint be dismissed with prejudice and that final judgment be entered for defendant, with costs.
FACTUAL BACKGROUND OF THE CASE
Plaintiff, a veteran, 74 years of age during the period of time relevant to this case, was examined on February 15, 1962 by Nathan Newman, M.D., then a second-year resident at MVAH, in connection with plaintiff's complaints of urinary frequency. He was instructed to report to MVAH on February 27, 1962, to be admitted as a patient and undergo a urological survey. (Deft.Exh. A at 2 [the MVAH hospital record]).
On February 27, 1962, plaintiff was examined by David McKee, M.D. who reported the presence of bilateral direct inguinal hernias and a 15-20 gram benign prostate. (Dept.Exh. A at 3).
Aaron Hardy Ulm, M.D., who was Chief of Urology at MVAH during the years 1954-66 (Ulm 8), including the year 1962, gave general background testimony with respect to the physiology of the relevant part of the anatomy and a non-technical explanation of the medical problem affecting Mr. Lever and the type of operation planned to alleviate his condition.
The prostate gland plays a role in the male reproduction process. That is its only known function. It is located at the point where the urethra joins the bladder and completely encircles the urethra. As a person grows older, the prostate gland sometimes becomes the seat of various tumors, and tends to enlarge. Because it surrounds a tube-like structure (urethra), its growth causes a compression of that tube. In turn, the compression of the urethra makes the urinary stream thinner and prevents the complete voiding of the bladder, thus causing urinary frequency. (Ulm 23-24).
Two general procedures have been developed to correct this condition. The first (and earlier) method involves an incision into the body - suprapubically, retropubically, or perineally - and enucleation of the enlarged prostate by the surgeon's finger. (Ulm 24-25). The other (and more recently developed) method utilizes various surgical instruments which are inserted into the patient's urethra and bladder through his penis.
The instruments used (Deft.Exh. J is an example) include a cystoscope and panendoscope, which are observation instruments of a telescopic nature. The cystoscope gives a right-angle view while the panendoscope gives a straight-forward view.
Once these larger instruments (of a tubular shape) are inserted, the Stern-McCarthy operating unit is introduced. This contains another telescopic unit (resectoscope), a light source, and a wire loop. The surgeon looks through the telescope, advances the wire loop to protruding prostatic tissue, catches the tissue in the loop, pulls the loop back and simultaneously introduces an electrical current into the loop which cuts a cylinder of tissue. The process is repeated until the surgeon determines that a sufficient amount of tissue has been resected. The operating instrument also utilizes another electrical current (of a different frequency) through the wire loop to coagulate blood vessels which are transected in the ordinary course of this procedure. This prostatectomy is called a transurethral resection of the prostate and is commonly referred to by doctors as a "TURP". (Ulm 25-33).
Generally speaking, smaller prostate glands are better for the transurethral operation; and, while there is considerable difference of opinion concerning the relative safety of the two described operations, a transurethral resection has the great advantage of avoiding cuts in the body. (Ulm 27).
In order to determine which procedure to follow in a specific case, and whether a particular patient is suitable for a transurethral resection, a preliminary inspection of the area is performed with a cystoscope and panendoscope. (Ulm 26-26).
Plaintiff underwent such a cystopanendoscopy on March 1, 1962. This procedure was performed by Dr. Panetta. (Deft.Exh. A at 126).
On March 7, 1962 Dr. Nathan Newman performed a transurethral resection of the prostate upon plaintiff, resecting approximately 10 grams of tissue from a gland whose estimated size at the outset of the procedure was 20 grams. (Deft.Exh. A at 128).
On March 27, 1962, plaintiff experienced two episodes of bleeding bright red from the penis at approximately 6:40 A.M. At 1:00 P.M., Dr. Martin Ill, the third-year resident at MVAH, performed a surgical procedure to evacuate blood clots from the bladder and to discover and control hemorrhage. Dr. Ill evacuated the clots and conducted a fruitless search for a bleeding vessel. He then resected residual tissue on the floor of the prostatic urethra. Blood was observed to be mildly oozing from several areas in the prostatic fossa and especially in the area of the bladder neck which was observed to be undermined. Dr. Ill fulgurated (electrocoagulated) these areas and inserted a catheter to continue irrigating and emptying the entire area. Three units of blood were given. (Deft.Exh. A at 132).
On March 29, 1962, at approximately 7:40 P.M., plaintiff was observed to have a "gross hematuria" (massive hemorrhage). (Deft.Exh. A at 94). Dr. Newman noted at 7:45 P.M. a massive sudden prostatic and urethral hemorrhage following a bowel movement. (Deft.Exh. A at 111).
After various futile attempts at controlling this bleeding, and an estimated blood loss of 500 cc's in fifteen minutes, plaintiff was brought to the operating room. Plaintiff's blood pressure had dropped to sixty over forty; 1000 cc's of whole blood were administered and another 500 cc's were evacuated from his bladder. A cystopanendoscopy was performed at approximately 8:45 P.M. by Dr. Ill, and arterial bleeding was reported. (Id.).
After anesthesia was administered, Dr. Ill performed a transurethral electrocoagulation of the bleeding vessels by means of a resectoscope. The instruments were inserted about 9:10 P.M. and the fulguration was completed at approximately 9:20 P.M. (296). Dr. Ill reported that the bleeding then stopped almost entirely. The fossa was then cleaned of clots and a catheter was left in place. (Deft.Exh. A at 111, 128-29).
Thereafter, plaintiff was incontinent. On May 22, 1962 Dr. Ulm, assisted by Drs. Ill and Newman, performed an operation on plaintiff to repair his bilateral direct inguinal hernias and to attempt at curing his incontinence. In the course of this procedure, a bilateral orchiectomy was performed and the spermatic cords were pulled through and posterior to the membraneous urethra, thus forming a cross-sling. The latter procedure was the attempt at incontinence repair. (Deft.Exh. A at 133-34). Plaintiff's hernia condition was corrected, though his incontinency was not.
On October 5, 1962, plaintiff was discharged from MVAH with an unimproved incontinency condition. On July 9, 1963, he was admitted to the Albany Veterans Administration Hospital where he underwent an operation (on July 18, 1963) in another attempt at incontinency cure. The operation involved the implantation of a Berry prosthesis. (Deft.Exh. B at 189 [Albany Veterans Administration Hospital record]). This operation was not successful in curing plaintiff's incontinency.
On March 2, 1967, plaintiff was admitted to Bronx Veterans Administration Hospital; and, on March 27, 1967, the Berry prosthesis implanted in July, 1963 was excised and replaced by a modified Berry prosthesis. (Deft.Exh. E at 355 [Bronx Veterans Administration Hospital record]). This operation likewise did not cure plaintiff's condition. He is apparently incontinent at this time. (Lever 215).
Plaintiff's contentions, as set forth in the pre-trial order and in his Post-Trial Brief are as follows:
(1) Defendant was negligent in permitting Dr. Newman, an inexperienced person, to perform the March 7, 1962 transurethral resection upon plaintiff without close supervision. Dr. Newman performed this procedure with a lack of skill, leaving an excessive amount of tags in the residual prostate tissue, which prevented proper and prompt healing, and caused continued bleeding.
(2) Defendant was negligent in permitting Dr. Ill, an unskilled, inept, and not properly trained person to operate upon plaintiff. Moreover, defendant was negligent upon a theory of respondeat superior in that its agent, Dr. Ill, acted contrary to generally accepted medical practice and failed to exercise his best judgment with respect to the surgical procedure of March 27, 1962. More specifically, plaintiff contends that Dr. Ill should have merely controlled the bleeding and should not have resected additional tissue because a second stage prostatectomy - an elective procedure - was contraindicated for a patient suffering from hemorrhage, anemia and fever. As a proximate result of Dr. Ill's resection of March 27, 1962, plaintiff bled still more, thereby causing the hemorrhaging of March 29, 1962.
(3) Dr. Ill was negligent with respect to the surgical procedures of March 29, 1962 because, as a result of his inexperience, he mistakenly believed that plaintiff was undergoing massive hemorrhaging in the area of the verumontanum and sphincter, and was thus in a life-or-death situation. Acting on this mistaken belief that plaintiff was in a lifethreatening emergency, Dr. Ill wrongly failed to call an experienced member of the attending staff, though there was sufficient time to do so. Moreover, Dr. Ill deliberately destroyed plaintiff's external sphincter and failed to perform the more advisable and conservative operation to control the bleeding - namely, suprapubic packing of the prostatic fossa - because of the erroneous belief respecting the hemorrhaging. Furthermore, Dr. Ill employed an unskillful and faulty technique in electrocoagulating the blood vessels in that he fulgurated extensively and persistently rather than lightly or not at all. As a proximate result of these errors and acts of malpractice, plaintiff's sphincter was permanently destroyed, thereby rendering him incontinent.
(4) Dr. Ulm was guilty of malpractice with respect to the operation of May 22, 1962 in that he performed a bilateral orchiectomy, though plaintiff's testicles were healthy. Dr. Ulm also departed from generally accepted medical standards when he performed on plaintiff an operation which was unreported in medical literature and novel and experimental in nature, without having obtained plaintiff's informed consent. As a result of these acts, plaintiff suffers from mental and physical pain and anguish stemming from the orchiectomy. Moreover, performance of Dr. Ulm's operation diminished the likelihood of success of the Berry operation performed in July, 1963 at the Albany VA Hospital, and the Berry operation performed in March, 1967 at the Bronx VA Hospital.
At the trial, plaintiff offered the following testimony: Mr. Lever gave testimony relating to his personal background and his pain and suffering following his discharge from MVAH. He gave no testimony of note with respect to the March, 1962 procedures, but did give his version of the discussions with Dr. Ulm regarding the May, 1962 operation. This latter testimony will be analyzed in greater detail in Part IV(A) infra, wherein the Court discusses the May 22, 1962 operation.
Plaintiff then offered the expert testimony of Dr. Leonard Biel. In the middle of his direct examination, plaintiff's counsel saw fit to attempt to impeach this witness (Biel 324) by confronting him with a report he had sent plaintiff's counsel with a transmittal letter dated October 20, 1967. (Pltf.Exhs. 11, 12). That report was headed: "Draft of Conclusions After Reviewing the Chart on David Lever While At The New York Veteran's Administration Hospital in 1962." He also offered this report (Pltf.Exh. 11) as substantive proof. (Biel 339-40).
Plaintiff offered the testimony of Dr. Joseph E. Davis, Jr., who gave expert opinion evidence as to the March 27th procedure (Davis 396), as to the March 29th procedure (Davis 398-99) and the May 22nd procedure. (Davis 399-400).
Plaintiff also read parts of Dr. Ill's deposition into the record as proof of some of his contentions. And, after Dr. Newman testified as a fact witness for defendant, plaintiff examined him as a fact and expert witness on his own behalf. (Newman 501, 513).
Finally, plaintiff relies in part on portions of Defendant's Exhibits A and B - plaintiff's hospital records while a patient at MVAH and Albany VA Hospital - and proof elicited from defendant's experts on cross-examination.
Defendant offered the expert testimony of Dr. Ulm and Dr. Simon A. Beisler, who was Chief of Urology at Vanderbilt Urological Clinic of the Columbia Presbyterian Medical Center from 1929-1935, and at Roosevelt Hospital from 1938-1966. (Beisler 619-20). In addition, defendant offered the factual testimony of Dr. Newman with respect to certain of plaintiff's contentions.
I. THE MARCH 7, 1962 OPERATION
It is not entirely clear that plaintiff still presses his contentions with respect to this operation; his Post-Trial Brief does not analyze any of the evidence bearing on these particular issues. Nevertheless, the Court has considered the evidence with respect to these contentions and concludes that the weight of the credible evidence manifestly requires their rejection.
A. Was Dr. Newman Inexperienced?
Dr. Newman received his M.D. degree in 1957. (Newman 514). He completed one year's residency in surgery and a six-months' pathology residency prior to 1960. During March, 1962, he was near the end of his second year of urology residency at MVAH. (Newman 513). He had been licensed to practice medicine in New York State in 1960. (Newman 514).
During his second year of urology residency, Dr. Newman performed between 50 and 75 transurethral operations. (Ulm 92). There is nothing in the record to indicate that Dr. Newman was inexperienced in the performance of transurethral operations. In the absence of such testimony, the Court concludes that Dr. Newman's background establishes him as an experienced surgeon in March, 1962.
B. Did Dr. Newman Perform the March 7th Operation Without Adequate Supervision?
Plaintiff presumably relies on the absence of any notation in the report of the March 7th operation indicating that either Dr. Ill or Dr. Ulm was present during this operation by Dr. Newman (Deft.Exh. A at 128), to sustain his claim of inadequate supervision. However, Dr. Ulm's testimony with respect to the established routine and practice at MVAH in 1962 overcomes any such inference. Dr. Ulm testified that, while he had no independent recollection of being physically present during the March 7th procedure, assuming he had followed the established routine and practice, he would have been present, especially in view of the fact that the operation was performed in the morning and by a second-year resident. (Ulm 52-53).
Moreover, Dr. Ulm testified that the general routine and practice followed at MVAH was to have the third-year resident supervise all TURPs performed by a second-year resident and that this supervision was "unvarying". (Ulm 38; 39; 56).
Dr. Ulm then explained in what sense he used the term "supervised". He also described the routine practice and established procedure with respect to the MVAH process of supervision of transurethral prostatectomies performed by second-year residents. The operating surgeon would begin the operation and the senior man looked over his shoulder into the telescopic unit and showed the operating surgeon what to do. The resectionist would cut a bit and would inquire of the supervising doctor as to the appropriate technique to be followed at a particular point. (Ulm 54). The transurethral prostatectomy is an operation where the senior man interrupts the performing surgeon from time to time in order to take a look at the surgeon's progress. (Id.). While the senior man cannot watch the surgery because the operation is in the depths of the human body, the senior does check the operating surgeon periodically. (Id.). The Court finds such supervision to be proper and adequate.
C. Did Dr. Newman Perform the Operation With A Lack of Skill or Otherwise Improperly?
There is no evidentiary basis to plaintiff's contention that Dr. Newman performed the March 7th procedure unskillfully for the asserted reason that he left an excessive amount of tags in the prostate tissue. Nothing in the record indicates that Dr. Newman left tags in the prostate tissue, or, if he did that they were excessive.
Dr. Ill testified that he found a substantial part of the prostate remaining when he viewed the area on March 27th. (Ill 585). He had testified that the March 7th operation was designed to remove the entire hypotrophic prostate. (Ill 584-85). Dr. Ill also testified, however, that the failure to remove all of the prostatic tissue was a "very common occurrence" with residents, attending doctors, and well-known urologists. (Ill 609). Further, there is no testimony that what Dr. Ill found were "tags" of tissue.
Dr. Ulm gave his opinion, with a reasonable degree of medical certainty, that the operation described on pages 127 and 128 of Defendant's Exhibit A, performed by Dr. Newman on March 7, 1962, was not a deviation from accepted and established medical standards and procedures. He saw no recorded grounds for criticism. (Ulm 51). Dr. Beisler testified, as well, that, in his opinion, the procedures performed on March 7th were proper and in accordance with accepted medical practice. (Beisler 622).
The Court finds and concludes that Dr. Newman performed the March 7th operation in accordance with generally accepted medical practice, with the requisite skill, and under appropriate supervision.
II. THE MARCH 27, 1962 OPERATION
A. Was Dr. Ill Unskilled, Inept, and Poorly Trained?
The record does not sustain plaintiff's contention that Dr. Ill was unskilled, inept, or poorly trained. Dr. Ill received his M.D. degree in 1955, served his internship from 1955-1956; worked in the field of urology for ten months while in the armed services during the years 1956-1958; served one year assistant surgical residency from 1958-1959; served one year urology residency at Presbyterian Medical Center from 1959-1960; and served two years of urology residency at MVAH from 1960-1962. (Ill 547). Prior to March 27, 1962, Dr. Ill had performed approximately 130 prostatectomies; and about eighty per cent of these were transurethral. (Ill 549).
Dr. Ulm testified that, at the time of the March 27, 1962 operation, Dr. Ill had but two months more to complete in his three year urology training, and concuded: "He was a pretty competent surgeon." (Ulm 121). The urology residency training program at MVAH was under the personal supervision of Dr. Ulm; and it appears from the record that he had obtained approval for the program from the American Medical Association. (Ulm 10-10A). It is also apparent that the residency program at MVAH was deemed proper training for certification by the American Board of Urology (Ulm 10A), as is evidenced by the fact that Dr. Newman is a diplomate. (Newman 514). The Court finds and concludes that Dr. Ill was neither unskilled, inept, or poorly trained.
B. Did Dr. Ill Depart From Generally Accepted Medical Practice and Fail to Exercise His Best Judgment During the Procedure of March 27th?
The thrust of plaintiff's contentions that the procedures of March 27th were deviations from generally accepted medical practice is directed to Dr. Ill's resectioning of additional prostate tissue. He does not claim that Dr. Ill acted contrary to sound medical practice in evacuating the blood clots and irrigating the bladder.
Plaintiff offered considerable portions of Dr. Ill's deposition in support of his contention of malpractice. Dr. Ill described plaintiff's condition as poor prior to the operation of March 27th. He noted that plaintiff required transfusion of two units of blood in order to bring his blood pressure up to a level safe enough to administer a spinal anesthetic. (Ill 574). Dr. Ill recalled that the patient was in shock, that he was pale, and that he was complaining from lower abdominal discomfort caused by what proved to be clots in the bladder. (Ill 574). His blood pressure before blood was transfused was seventy-eight over forty and after the transfusion, it rose to ninety over sixty. (Ill 574-75). As noted earlier, plaintiff was observed to have suffered two episodes of bright red bleeding on the morning of March 27th.
Dr. Ill, assisted by Dr. Newman, began this operation at 1:00 P.M. After plaintiff's blood pressure had been raised to normal levels and the spinal anesthesia administered, a resectoscope was introduced with ease. (Deft.Exh. A at 132).
Dr. Ill found considerable mild low prostatic tissue remaining. He did not see any express bleeding point though there was a mild ooze from several areas through the prostatic fossa, especially in the area of the undermined bladder neck. He did see a perforation of the urethra one centimeter distance from the external sphincter (Ill 575); but, upon reflection during his deposition, Dr. Ill could not comment further on this finding. (Ill 583). There was no arterial bleeding, however; just the normal ooze following a transurethral resection. (Ill 575; 576; 583).
Dr. Ill stated that he knew that the patient had "certainly bled" - three units of blood had been administered between March 7th and March 27th. (Ill 576-77). Still, on endoscoping the patient, Dr. Ill saw no explanation for the bleeding, a circumstance he found "puzzling". (Ill 577, 583). He stated that the "results of bleeding" were evident, "but not the bleeding itself." (Ill 583).
Dr. Ill performed no electrocoagulation at that time. He explained that none was necessary nor could any be done because the careful search for the bleeding vessel had been in vain. (Ill 576, 586).
Dr. Ill then decided to resect the additional prostatic tissue - an operation he had not preoperatively planned to do. (Ill 584). Dr. Ill explained that he did not expect to find any residual tissue, nor, upon discovery, did he expect to resect it. However, because he could not find any explanation for the bleeding, he resected the additional tissue. (Id.).
When asked by plaintiff's counsel whether the performance of a second stage resection immediately after a patient is brought out of shock is a departure from general urological practice, Dr. Ill responded:
"If this were my intent upon doing the operation, I agree. This was not my intent but in finding what I did at that time decisions have to be made in the treatment of this particular situation, so a standard does not seem to apply because this is a particular case with particular findings. Intent to go into and do a second stage resection * * * is certainly a departure from standard procedure in the presence of hemorrhage, yes, but this was not the intent upon doing it. The intent was purely to control the bleeding. Bleeding was found and an attempt at finding the cause was carried out by the performance of the resection and this was a resection in an area which is seldom followed by such difficulty such as this. This is the safe area. This is an area where blood vessels do not abound." (Ill 593-94).
Plaintiff argues that the foregoing testimony establishes that Dr. Ill sought to excuse his performance of a second-stage transurethral prostatectomy by stating that it was not his "intent" to do so. (Plaintiff's Post-Trial Brief at 13-14). The Court does not so interpret Dr. Ill's testimony. As will be more fully explained infra, Dr. Ill's testimony does not admit malpractice and attempt to "excuse" it. Rather, this testimony, which evidences the purpose for the resectioning, supports the conclusion that Dr. Ill did not depart from generally accepted medical practice.
Plaintiff called Dr. Davis as an expert witness to analyze the facts and render his opinion respecting them. On direct examination, Dr. Davis stated that the operative procedure of March 27th, as described in the doctor's progress notes for that date (Deft.Exh. A at 110), was clot evacuation and second-stage transurethral resection. (Davis 395). He then offered his opinion that the second-stage transurethral resection was contraindicated at that time, which meant "not indicated". (Davis 396).
Dr. Davis also expressed the opinion that the performance of a second-stage transurethral prostatectomy was contrary to standard medical practice. (Davis 397). The basis for this opinion was that the patient had been running a temperature and was febrile at the time and that the procedure was performed as an emergency measure to stop bleeding. Therefore, this was not an appropriate time to remove more prostatic tissue. (Davis 397). It was Dr. Davis' testimony that the second-stage prostatectomy was not an emergency procedure, but was elective surgery. (Davis 398).
On cross-examination, however, Dr. Davis testified that, if he found a patient bleeding three weeks after a transurethral resection and if the bleeding persisted, he would endoscope the patient, evacuate clots, and look for bleeding points. (Davis 412). He stated he would leave a catheter in the bladder after being assured there was no active bleeding, (id.), and by that he meant he would watch the irrigating solution to make sure that it was clear, and he would carefully re-examine the prostatic fossa. He further explained that he would make observations every few minutes to see whether he could, by changing the pressure in the irrigating fluid, actually see a bleeder. (Davis 413).
Dr. Davis admitted that a bleeder might be under necrotic tissue still in the urethra, and that it would be sound medical practice to try and remove some of that tissue if the bleeding was not observed initially. (Davis 413). He expressly stated that it would be reasonable medical practice, standard urological practice for Dr. Ill to remove additional tissue in order to try and locate bleeding, if there was no intention, when the operation was begun, of removing other tissue. (Davis 413-14).
Dr. Biel testified that the resection of ten grams of tissue (the amount reported in Deft.Exh. A at 132), "when you are looking for bleeding," was "inadvisable". (Biel 316). However, he would have to have a laboratory report confirming that ten grams had actually been received in this case, before he could state that the March 27th procedure was contrary to generally accepted medical practice. (Biel 316-17). He did not recall seeing such a report in plaintiff's medical file. (Biel 317). Dr. Biel explained that the operative report found in Defendant's Exhibit A at page 132 was prepared by a resident, and that a surgeon often thinks he has resected a great deal more than he actually has. (Biel 319).
Moreover, some tissue resection - and Dr. Biel emphasized the word "some" - may be advisable if the surgeon believes it to be "necrotic tissue" (tissue destoryed by electrocoagulation) and thought it might "sluff and disappear." In general, though, "you don't resect any more than you absolutely have to." (Biel 317).
Plaintiff also relies on Plaintiff's Exhibit 11, a Draft of Conclusions prepared by Dr. Biel after reviewing plaintiff's hospital records. It contains the following language:
"There is another suggestion in the EBT [deposition], by Dr. Ill, that in the second procedure [March 27th] when he was unable to find a bleeding point, he resected additional tissue, looking for one. This is tantamount to saying that if you look at one's hand and you don't see any bleeding, you should make some cuts to see if you can find bleeding. It is obvious that further cutting will lead to further bleeding. The patient who was returned for the second time to the operating room because of hemorrhage should not have been subjected to what is characterized both in the doctor's notes and in the operative reports as a second stage transurethral resection. The operator states that he removed approximately 10 grams of tissue and in no circumstances can the removal of this amount of tissue be characterized as anything but a transurethral resection."
Dr. Biel testified that Plaintiff's Exhibit 11 was "perhaps written in haste, written off the top of my head." (Biel 336). It was subject to further study and revision. (Id.). He indicated that he no longer wished Plaintiff's Exhibit 11 to represent his professional conclusions. (Biel 337). Dr. Biel also testified, on cross-examination, that in ...