Levene, Gouldin & Thompson, Binghamton (David M. Gouldin of counsel), for Kenneth Mintz, defendant.
Cherundolo, Bottar & Leone, Syracuse (Daniel R. Seidberg of counsel), and Foley, McLane, Foley, McDonald & MacGregor, Scranton, Pennsylvania (Thomas J. Foley, Jr., of the Pennsylvania Bar, admitted pro hoc vice, of counsel), for plaintiffs.
Walter J. Relihan, Jr., J.
I. The Facts
This is a motion by the defendant anesthesiologist, Dr. Mintz, for summary judgment dismissing the medical malpractice complaint of Kathleen and Dennis States.
Surgery was performed upon Kathleen States on July 25, 1995 for the removal of an ovarian cyst. The operation was completed successfully. The action against the surgeon and the hospital has been discontinued or dismissed on consent.
During the surgery, the plaintiffs right arm was extended outward from the operating table upon an arm board at an angle described as " less than 90 degrees" (Mintz deposition, at 58). The dorsal surface of her hand was the site of the intravenous tube used to introduce the anesthetic. It is not disputed that " with prolonged stretching you can get either muscle or nerve damage or complications," including injury to the brachial plexus (ibid., at 59), and that the mechanics of the operation were such that, conceivably, the injury could have been produced in the course of that procedure. However, none of the participants have any present recollection of any untoward event which occurred at the time. None of the medical records disclose any such event.
The plaintiff alleges that, in fact, prolonged extension or hyperabduction or other lack of care for the arm was the cause of her brachial plexus traction injury which has produced a painful and permanent disability affecting her right upper arm. Four medical expert witnesses, Drs. Kane, Beger, Tahmoush and Togut, assert that plaintiff suffered an injury diagnosed as a right thoracic outlet syndrome (the brachial plexus traction injury) and a reflex sympathetic dystrophy (RSD). They agree that the injury occurred in the course of the July 25, 1995 surgery.
Dr. Kane, an anesthesiologist, states that " brachial plexus injuries do not occur during this type of procedure without a deviation from the standard of medical care. To a reasonable degree of medical certainty, I feel the ... [injuries] ... are the direct result of the failure of the [anesthesiologist] to maintain and protect the position of her right arm during the [surgery] ... The anesthesiologist and the CRNA [assisting nurse] were in a position to see her right upper extremity and had the responsibility to protect it and her from harm."
Dr. Beger, an obstetrics and gynecology specialist, has
performed over 1,200 ovarian cystectomies " without ever having a patient sustain a brachioplexus traction injury." He repeats the Kane findings and opinion that the injury could not occur in the absence of negligence. He adds that the anesthesiologist, not the surgeon, had the responsibility to observe plaintiff's right extremity during the ...