The opinion of the court was delivered by: CLARY
The above captioned case tried to the Court without a jury between the dates of November 12, 1975, and December 5, 1975, and the testimony having been completed on the part of the plaintiff and the government and the case submitted to the Court for determination, now upon all the pleadings, exhibits and proof adduced in this case, the Court makes the following:
1. Plaintiff is Frederick T. Harrigan, who resides at 3125 North 30th Street, Philadelphia, Pennsylvania.
3. Plaintiff was hospitalized at Shore Memorial Hospital, Somers Point, New Jersey and then transferred on September 19, 1966, to the Veterans Administration Hospital, Philadelphia, Pennsylvania.
4. A cervical fusion was performed on January 24, 1967, but no claim is made as to that operation.
5. On June 2, 1967, resident urologists performed a bilateral ureteroileostomy, which is a urinary diversion effected by cutting the ureters at the point they enter the bladder, connecting them to the ileum (a section of the small intestine), and passing the ileum out through an opening in the skin of the lower abdomen. The opening is called a stoma, and an external collection device is cemented to the stoma to collect the urine passing out through the ileum.
6. The operation was technically successful, and plaintiff makes no claim of negligence in the performance of the surgical procedures.
7. On August 3, 1972, plaintiff brought suit against the United States of America under the Federal Tort Claims Act, 28 U.S.C., Section 1346(b), claiming that the VA Hospital residents performed the ileostomy without his informed consent and that they were negligent in failing to follow alternative and more conservative methods of treatment and in not transferring plaintiff to a spinal cord injury center.
8. An administrative claim was filed with the Veterans Administration on November 30, 1972, and was denied on June 6, 1973. An amended complaint was filed on January 6, 1973.
9. The operating surgeon for plaintiff's bilateral ureteroileostomy on June 2, 1967, was Dr. Hugo Mori, Chief Resident of the Urology Service and a senior resident in urology. He was assisted by Dr. Terrence Malloy, a third year resident, by Dr. Norman Lasky, a second year resident, and Dr. Jerry Gotlieb, a first year resident.
10. From November 4, 1966, to June 2, 1967, plaintiff was under the care of the Physical Medicine and Rehabilitation Service and was treated primarily by Dr. Dorthea Glass and Dr. David A. Tull. Dr. Glass was the Chief Resident of the PM&R Service, and Dr. Tull was a third year resident.
11. When plaintiff arrived at the Philadelphia VA Hospital, he had a functioning tracheostomy, decubitus ulcers, an indwelling Foley catheter, and an elevated temperature caused by urinary tract infection.
12. The doctors were unanimous in stating that the goal of urological treatment in the plaintiff's case should be removal of the indwelling catheter which causes infection.
13. Dr. Dorthea Glass requested a genito-urinary consultation, and Dr. Mori was consulted on November 16, 1966. He recommended a cystometrogram which is used to determine what the capacity of the plaintiff's bladder was, how well it emptied, and whether reflex contractions were present. Dr. Mori found from the cystometrogram that plaintiff had a spastic reflex bladder, which is a bladder that contracts and expels urine without voluntary control from the brain, but through motor reaction of the spinal cord.
14. Dr. Mori noted on November 16, 1966, that if reflex contractions were found to be present in the cystometrogram, he planned to start clamping the Foley catheter for 1 1/2 hours at a time for 1-2 weeks and then give a trial of voiding.
15. The cystometrogram did not reveal reflex contractions, and plaintiff failed to achieve a normal voiding spike, i.e., he could not void voluntarily and completely.
17. Doctors Terrence R. Malloy and John J. Murphy, expert urologists, testified that the cystometrogram showed plaintiff had an autonomic neurogenic bladder. A neurogenic bladder is one not having normal nerve control because of disruption either in supply or exit of nerves to the bladder. Since damage to the plaintiff's spinal cord prevented nerve signals from reaching the brain, the muscles of the bladder would not work synchronously, and the bladder would not empty completely or at all. Autonomic means contractions of the bladder occurred without plaintiff's control.
18. A neurogenic bladder is dangerous, because failure of the bladder to empty allows infected urine to collect and spread infection to the ureters and kidneys. Doctors Malloy and Murphy stated that infection can spread to the kidneys from the bladder through the ureters, the lymphatics, or the blood stream.
19. Reflux is the condition where urine backs up in the bladder and flows back up the ureters. Reflux is likely to lead to infection in the ureters and kidneys. On December 14, 1966, Dr. Mori recommended a cystourethrogram to determine if the plaintiff was refluxing. Ultimately, no reflux was found.
20. The hospital temperature charts indicate that plaintiff had elevated temperatures of 99.6 degrees to 103 degrees during most of the months of January and February and into the first half of April 1967. The elevated temperatures indicated a fever due to urinary infection. Urine cultures taken during this period also indicated infection. Febrile condition with positive urine cultures are symptoms of a condition called sepsis.
21. A blood test, called a BUN, for amounts of blood, urea, and nitrogen in the blood also indicated that plaintiff had infection.
22. An IVP (Intravenous Pyleogram) which is a test of the functioning of the kidneys was normal.
23. Dr. Tull, who was the primary treating physician in PM&R, requested Dr. Mori to evaluate the plaintiff for a urinary diversion operation on March 28, 1967. Dr. Mori recommended a diversion on March 31, 1967, because of the repeated episodes of sepsis, characterized by fever and chills, repeated urinary tract infections, urine cultures showing infection, and the patient's critical course.
24. The bilateral ureteroileostomy was elective surgery which means that time was not of the essence. The operation was performed to prevent kidney damage and to preserve the renal functions, but Dr. Mori could not explain why it was done on the particular date of June 2, 1967.
25. Dr. Mori's residency ended July 1, 1967.
26. Dr. Abramson, professor at Albert Einstein College of Medicine in New York and an expert in both Physical Medicine and Rehabilitation and in Spinal Cord Injury cases, stated that indications for a bilateral ureteroileostomy are reflux and deterioration of the kidneys accompanied by infections. In Dr. Abramson's opinion, the operation was not indicated in plaintiff's case, because plaintiff had a normal urinary tract, showed good contraction of his bladder, secreted urine, and was able to void despite an obstruction. Dr Abramson stated that the operation was a controversial procedure in 1967 and should only have been used at a later stage of decay in the plaintiff's urinary tract. Since the operation was irreversible, according to Dr. Abramson, less serious and more conservative forms of treatment should have been tried first.
27. Dr. Abramson testified that the proper mode of treatment for plaintiff was removal of the indwelling catheter and training of the bladder together with administration of antibiotics to control infection. In Dr. Abramson's opinion, a trial of voiding also should have been attempted: trial of voiding is a periodic clamping and unclamping of the indwelling catheter to build up bladder capacity then having the patient void at timed intervals.
28. An alternative form of treatment to the ileostomy was a procedure called intermittent catheterization (I/C). I/C involves insertion of a catheter into the bladder at time intervals in order to establish regular, periodic voiding. After I/C has been followed a Texas catheter, which is comparable to a condom with a drainage tube, is fitted over the end of the penis. Dr. Abramson testified that I/C was not a widely adopted procedure in 1967 and was not the traditional approach.
29. Dr. Tull, who was plaintiff's primary treating physician and now a VA Hospital staff physiatrist, testified that plaintiff needed to become free of his catheter and, based on the entire course of treatment, needed the ileostomy operation.
30. Drs. Malloy and Murphy, specialists in urology, testified that in their opinion plaintiff received medical care conforming to the accepted standards in Philadelphia. They testified that the bilateral ureteroileostomy was the proper and conservative mode of treatment for the plaintiff's neurogenic bladder. Conservative treatment would aim at preserving the kidneys. Plaintiff's fever and infections indicated to the doctors that the kidneys were in danger of infection, and that an ileostomy would help to lessen infection and protect the renal functions.
31. Drs. Malloy and Murphy both testified that Dr. Abramson had misinterpreted the cystometrogram when he stated that plaintiff had bladder contractions and was capable of voiding. They were of the opinion that the test showed no normal voiding spike.
32. Drs. Malloy and Murphy stated that if the plaintiff showed signs of reflux and deterioration of the kidneys, then it was too late for the operation because kidney damage had already been done. The fever and urinary infections evidenced by cultures were sufficient indications for the ileostomy in dealing with plaintiff's neurogenic bladder.
33. Dr. Malloy testified that the following methods of treatment were considered and rejected in plaintiff's case:
a) Texas catheter -- was rejected because sphincter muscle was spastic and bladder was infected and not emptying. The elastic band of the Texas catheter could cause gangrene of the penis.
b) Cutting sphincter (transurethral resection) -- was rejected as not appropriate for this neurogenic bladder and would not end bladder infection.
c) Intermittent catheterization -- was rejected because continuous or straight drainage with Foley catheter was resulting in fever and infection and I/C would ...