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ROCKWELL v. KAPLAN (07/18/61)

July 18, 1961

ROCKWELL
v.
KAPLAN, APPELLANT.



Appeal, No. 273, Jan. T., 1961, from judgment of Court of Common Pleas No. 4 of Philadelphia County, March T., 1957, No. 2040, in case of E. Benjamin Rockwell et ux. v. Richard Kaplan et al. Judgment affirmed.

COUNSEL

Philip H. Strubing, with him K. Robert Conrad, and Pepper, Hamilton & Scheetz, for appellant.

Wilfred R. Lorry, with him Abraham E. Freedman, Charles Sovel, and Freedman, Landy & Lorry, for appellee.

Before Jones, C.j., Bell, Jones, Bok and Eagen, JJ.

Author: Bok

[ 404 Pa. Page 576]

OPINION BY MR. JUSTICE BOK.

The facts need not be repeated here, since they have been fully set forth in Mr. Justice BENJAMIN R. JONES'S opinion in Rockwell v. Stone, 404 Pa. 561 (1961), 173 A.2d 48. Suffice it to say that plaintiff recovered a verdict against both doctors, who have separately appealed. Dr. Kaplan, the subject of this opinion, asks judgment n.o.v. or, if he may not have it, a new trial. Both requests were refused below and this appeal is from the ensuing judgment.

Since we are considering a motion for judgment n.o.v., the evidence must be seen in the light most favorable to the plaintiff, who has the verdict: Coradi v. Sterling Oil Co., 378 Pa. 68 (1954), 105 A.2d 98; Beatty v. Hoff, 382 Pa. 173 (1955), 114 A.2d 173.

Dr. Kaplan's liability rests on two piers, either one of which will support it: his own negligence and his responsibility as principal for Dr. Stone's negligence, which has been established by the companion case of Rockwell v. Stone, supra.

The following facts appear in the record: Dr. Kaplan said that he was "the boss of the surgical end of it" and that the plaintiff was his patient; he chose the hospital and arranged the plaintiff's admission; he chose to use a minor elective surgical procedure to remove the bursa from plaintiff's right arm, which procedure could be postponed or done at the patient's convenience; he overruled his patient, who wanted local anesthesia, and ordered a general one; if he did not choose Dr. Stone, who was the chief of the hospital's anesthesiology department, he chose Dr. Stone's hospital and was satisfied with him and with his choice of sodium pentothal as the induction agent and a gas for the general anesthesia; that when an alkali like sodium pentothal is injected in an artery the artery contracts by spasm and if the blood is shut off entirely by spasm it stagnates, a condition known as stasis; that clotting

[ 404 Pa. Page 577]

    occurs about twenty minutes after stasis; that if stasis is corrected before clotting there will be no complications; that plaintiff was presented to Dr. Kaplan for surgery fifteen minutes after the injection; that the injection in plaintiff's left arm missed the vein and went in or around an artery; that although Dr. Stone chose not to tell Dr. Kaplan of the "catastrophe" that had occurred at induction with the sodium pentothal, which is a very dangerous drug, Dr. Kaplan could and did see that the plaintiff's left arm was extended on the intravenous board when the patient entered the operating room; that he assumed that when the patient was presented to him in the operating room he was ready for surgery; that he made no inquiry about the plaintiff's reaction to the anesthesia, although Dr. Stone and his assistants did the unusual thing of remaining in the operating room and watching the left arm; that the arm visibly deteriorated during the operation and the pulse vanished while in the recovery room afterwards; and that he left the operating room and the hospital without seeing the plaintiff in the recovery room and until after he was summoned back to the hospital by the plaintiff's emergency condition.

Hence the basic question of fact was whether Dr. Kaplan should have seen the condition of the arm or should have asked about it and having found out should have refused to operate until it had been taken care of. In leaving such matters generally to the jury on the ground of negligence, the trial judge gave Dr. Kaplan more than he deserved when he said: "There is no testimony in the record that I can recall whereby such a standard of care is required under those circumstances of a surgeon in attendance. Therefore, if you find that there has been no violation of his duty ...


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