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December 1, 1967

Edward C. DENNENY and Catherine Denneny
Bernard SIEGEL and Louis H. Block and Albert Einstein Medical Center, Northern Division

The opinion of the court was delivered by: FULLAM

 On October 23, 1967, after three days of trial, I granted the motion of the defendant hospital for a directed verdict under Rule 50, and entered various other orders, the effect of which was the entry of final judgments adverse to the plaintiffs. This opinion is being filed in order to record more fully the reasons for the actions taken.

 Plaintiffs' evidence disclosed that the wife-plaintiff has been under medical care most of the time for the past twenty or more years. During that period, she has undergone a remarkable number of operative procedures, including the removal of a kidney in about the year 1947, a tonsillectomy in 1949, and three separate ulcer operations in 1953 or thereabouts. In 1957 and 1958, she was under the care of a Dr. Helene Young (in the Buffalo, New York, area) for various problems, including a suspected heart condition. In 1958, she was advised by Dr. Young that, because of her medical history up to that point, it would be most unwise for her to undergo any further abdominal surgery unless absolutely necessary.

 By way of further background, it should be mentioned that the plaintiff has been overweight, to a greater or lesser degree, for many years. At the time of her admission to Einstein, she weighed approximately 200 pounds, and was five feet three inches tall.

 Dr. Siegel began the operation according to plan, on June 6, 1961. However, when the operation was nearly completed, one of the abdominal arteries tore loose from the clamp which was holding it and retracted into the abdominal cavity. Dr. Siegel attempted to control the resulting hemorrhaging with vaginal packs, etc., but in order to prevent the plaintiff from bleeding to death, it was necessary for him to make an incision in the abdominal wall in order to locate the loose artery and tie it off. It finally became necessary for him to tie off the main abdominal artery, rather than just the branch which had torn loose. Plaintiff was in the intensive care unit for a period of two weeks, but began to recover from this operation, although there were continuing problems of bowel obstruction due to the vaginal packing.

 Later, a second operation became necessary, because the incision from the first operation had opened and a loop of intestine was protruding through the aperture. This was repaired on June 17. Up to this point, all of Dr. Siegel's incisions were made in the left side of plaintiff's abdomen.

 On Sunday, July 2, 1961, plaintiff began hemorrhaging, and a further operation was required in order to save her life. This time, the incision was made in the right side of plaintiff's abdomen, and the necessary repairs were made principally by the defendant, Louis H. Block, M.D., although the early part of the operation was performed by Dr. Siegel.

 Thereafter, an infection developed in the incision on plaintiff's right side, and it did not heal properly. When she left the hospital in order to return to Buffalo, New York, on July 23, 1961, this incision was still open and some signs of infection were still present. After additional hospitalization in Buffalo, the infection cleared up and the various incisions healed, leaving extensive scars and further abdominal weakness.

 To round out the factual background, it should be mentioned that the plaintiff has experienced at least three additional and unrelated hospitalizations during the years since 1961.

 Plaintiffs' claims against the two physician defendants were settled before trial, and joint-tort-feasor releases given. Thus, the crucial issue at trial was whether the plaintiff had succeeded in proving a case against the hospital. Plaintiffs' claim against the hospital relates solely to the infection which developed in the abdominal incision in her right side, following the operation of July 2, 1961.

 Plaintiffs presented the testimony of two medical witnesses on this point. Dr. Helene Young, who examined the plaintiff upon her arrival at Buffalo on July 23, 1961, and whose deposition was read into the record at trial, stated that, at that late date, it was impossible to tell what had caused the infection. (Deposition, p. 44). The defendant, Dr. Siegel, called as a witness for the plaintiffs, testified that some infection developed after the operation of June 6, 1961, and also after the operation of June 17, 1961; that when the incision in the right side was made on July 2, 1961, there was already infection present within the abdomen; and that this was not unusual, but was a complication that "could be expected under the circumstances." (N.T. pp. 159, 191-193). He assigned as reasons for all of the incisions becoming infected:

"Well, the loss of blood depriving the tissues of food, which the blood carries, the presence of a large amount of fat, reducing the ability of the wound to heal properly, the extensive surgical procedure reducing the health of the tissues; these factors all together played a large part in ...

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