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February 3, 1965


The opinion of the court was delivered by: WOOD

This non-jury action is a suit brought under the Federal Tort Claims Act 28 U.S.C.A. 1346(b). The plaintiff seeks to recover damages for injuries which he sustained while undergoing treatment in a Veterans' Administration Hospital in Baltimore Maryland in 1959.

After a full and complete trial from December 14, 1964, until December 22, 1964, we find the following:


 1. The plaintiff, a 29 year-old Army veteran, was found to have tuberculosis of both lungs in December, 1958, after an examination conducted at a Veterans' Administration Clinic in Philadelphia, Pennsylvania.

 2. Upon the recommendation of the Veterans' Administration (VA) Mr. Christopher entered the Loch Raven Veterans' Administration Hospital, Baltimore, Maryland on January 6, 1959.

 3. On March 23, 1959, the plaintiff was operated upon for the partial removal of his right lung which procedure was successful and was followed by an uneventful recovery.

 5. A surgical team, including the Chief Surgical Resident, Edward Sharp, M.D., who was the surgeon, and Richard F. Kieffer, M.D., Head of the Surgical Service who assisted Doctor Sharp, coordinated their efforts in the operation.

 6. The plaintiff's chest was opened by means of an incision extending between the fourth and fifth rib spaces on the left side beginning at a level near the nipple and extending posteriorly under the armpit and approximately to the fourth or fifth vertebra.

 7. The periosteum (tissue around the bones) was then stripped from the fourth and fifth ribs, and these ribs were then disarticulated (which means that the joint between the rib and the articulating surfaces on the vertebrae was disrupted) from the transverse process of the fourth and fifth thoracic vertebrae by the use of an osteotome (surgical nippers or a chisel for dividing bone).

 8. The osteotome was used to cut the ligaments which held the fourth and fifth ribs to the transverse processes of the fourth and fifth thoracic vertebrae. The transverse process is a lateral extension of bone attached to each vertebra.

 9. The rib connects to the vertebra in two places. It touches the transverse process and is held to it by ligaments. It is also connected to the vertebral body itself. The connection of the head of the rib with the vertebral body had not been severed and it remained in articulation at that point.

 10. After the two ribs had been disarticulated from the transverse processes, a rib-spreader was placed approximately midway into the incision and the ribs spread wide apart so that access could be gained to the chest cavity.

 11. Doctor Kieffer entered the operation about the time the pleural cavity was opened, and he observed the patient's condition as being good and that the operation was proceeding normally.

 12. The diseased portion of the left lung was excised, and Doctor Sharp inserted the chest tubes and removed the rib-spreader.

 13. When the rib-spreader was removed constant bleeding developed in the posterior area of the incision behind the head of the fifth rib near the intervertebral foramen.

 14. The intervertebral foramen in question is an opening in the bony structure of the spinal column through which the nerve roots and intercostal vascular branches pass through to the spinal column. It is located at the bottom of the fifth thoracic vertebra and at the top of the sixth thoracic vertebra. The opening of the foramen measures between one-quarter and one-half of an inch. It resembles a well in that it has some depth. At the bottom of the well is the dura which is the outer covering of the spinal cord.

 15. Doctor Sharp, the operating surgeon, was the only witness who actually saw the bleeding since Doctor Kieffer had left the operating room at that point of the operation.

 16. Doctor Sharp testified that he could not see the point from which the blood was flowing. His testimony disclosed that it was coming from behind the head of the fifth rib. He described the bleeding as constant '* * * which is different from what I would call arterial bleeding, in which you have a pulsation.' (n.t. 391, 392) The head of the fifth rib is that area of the rib which connects with the spine.

 17. A suture was placed circumferentially around the base of the fifth rib but this failed to control the bleeding completely.

 18. In Doctor Sharp's Report of the Operation, he stated, in prat, as follows:

 19. In his testimony, Doctor Sharp stated that in placing the Kittner he exerted light pressure and that he could not see the tip of the device all the time it was used.

 20. A Kittner Dissector consists of two parts. The first part is a cotton ball approximately one-quarter of an inch in diameter and round consisting of packed cotton. The second part resembles a pair of pliers and is a metal clamp approximately eight inches long. The clamp is separated by a fulcrum. The length of the handle of the clamp to the fulcrum is seven inches and the distance from the fulcrum to the tip is one inch. The tip of the clamp consists of two parts which have rounded one-eighth inch tips that grip the cotton ball.

 21. Doctor Kieffer testified that it was not advisable to use clamps to control bleeding from the posterior angle of the plaintiff's wound.

 'A. Yes, sir. Bleeding in that area is rather inaccessible to direct instrumentation, there is not enough room; and also one worries about possible injury to the spinal cord.'

 'Q. Is there any reason why clamps couldn't be used to control bleeding in that area?'

 'A. For those reasons. The vessel runs closely applied to the undersurface of the rib where it is difficult to grasp it with a clamp separately from the accompanying bone; and also because of concern about the spinal cord which lies nearby, and the roots, nerve roots arising from the spinal cord.' n.t. 332, 333) (emphasis supplied)

 22. The bleeding began again and Doctor Sharp placed oxycel gauze, three inches by three inches, under pressure in the same area where the Kittner had been placed and this packing partially controlled the bleeding. He then placed a second pack of oxycel gauze on top of the first pack and this controlled the bleeding adequately.

 23. Doctor Sharp then proceeded to complete the operation and he placed a third pack of oxycel gauze of equal size with the other two packs between the fourth and fifth ribs and closed the chest.

 24. Oxycel gauze is a specially made absorbent material intended for control of bleeding inside an operative site and is intended to be left within the body as it will eventually be absorbed.

 25. The plaintiff received six units of blood during the operation.

 26. Following his removal from the operating room, the plaintiff was examined approximately one to two hours later when he was found to be unable to move his legs and paraplegia was discovered.

 27. A lumbar puncture was performed on the plaintiff and this revealed the presence of blood tinged spinal fluid.

 28. A Queckenstadt test was performed with pressure on the jugular veins and this failed to raise the plaintiff's spinal fluid pressure. The purpose of this test is to determine whether there is a blockage of the spinal canal.

 29. Such a result indicated that there may have been a blockage of the spinal canal and the plaintiff was returned to the operating room for an ...

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