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decided: July 12, 1978.


Nos. 1516, 1532 & 1557 OCTOBER TERM, 1977, Appeal from the Judgment of the Court of Common Pleas, Trial Division, Law, of Philadelphia County at No. 1559 October Term, 1970.


Edward L. Edelstein, Philadelphia, for appellant at No. 1516, and appellee, Goldstein, M.D., at Nos. 1532 and 1557.

Jan E. DuBois, Philadelphia, with him Harry A. Short, Jr., Philadelphia, for appellant at No. 1532, and appellee, Seitchik, M.D., at Nos. 1516 and 1557.

James Lewis Griffith, Philadelphia, for appellant at No. 1557, and appellee, Einstein Medical Center, at Nos. 1516 and 1532.

James E. Beasley, Philadelphia, with him Jeffrey M. Stopford, Philadelphia, for appellees, Schneider.

No appearance entered nor brief submitted for appellees, Moskal, M.D., and Duval, M.D.

Watkins, President Judge and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Hoffman, J., concurs in the result. Spaeth, J., joins in the majority opinion except in one respect: he disagrees with the statement that "[t]he reasoning in [ Havens v. Tonner, Author: Van Der Voort

[ 257 Pa. Super. Page 354]

The instant action in trespass was initiated by plaintiffs-appellees, Abraham M. Schneider and Isabelle Schneider, against defendants-appellants, Albert Einstein Medical Center, Northern Division, Dr. Murray Seitchik and Dr. Bernard Goldstein, and four other defendants, to recover damages for severe personal injuries including brain damage sustained by Mrs. Schneider during the course of preoperative administration of anesthesia on May 21, 1969. Dr. Seitchik was the plastic surgeon who was to have performed surgery on Mrs. Schneider, for surgical removal of an obstructed gland, on that date. Anesthesia prior to the surgery was initially administered by Dr. Duval, a staff anesthesiologist, and Dr. Renee Calamba, a resident in anesthesiology, who was not named as a defendant. Thereafter, Dr. Goldstein, Director of the Division of Anesthesiology at the Hospital, was called to the operating room to render assistance in connection with the anesthetization of Mrs. Schneider.

Trial commenced before the Honorable Stanley M. Greenberg and a jury on May 17, 1976. On June 9, 1976, the jury, in response to special interrogatories, returned a verdict in the total amount of $1,500,000 against the defendants -- $1,000,000 for plaintiff, Abraham M. Schneider, and $500,000 for plaintiff, Isabelle Schneider. The jury found that Drs. Seitchik, Goldstein and Duval were negligent, that Dr. Calamba was not negligent, that Dr. Duval, with regard to the acts and omissions found to be negligent, was subject to the direction and control of the Hospital, Dr. Goldstein and Dr. Seitchik, and that Dr. Goldstein, with regard to the acts and omissions found to be negligent, was subject to the direction and control of the Hospital and Dr. Seitchik. Post-trial motions for judgment n. o. v. and, alternatively for a new trial were filed by the Hospital and Drs. Goldstein and Seitchik. Dr. Duval filed neither post-trial motions nor an appeal to our Court.

In the present contexts, where the appellants seek review after denial of motions for new trial or judgment n. o. v., we must examine the evidence in a light most favorable

[ 257 Pa. Super. Page 355]

    to the verdict winner; we consider the evidence which supports the verdict, resolving conflicts in testimony in favor of the appellee verdict winner. Rutter v. Morris, 212 Pa. Super. 466, 243 A.2d 140 (1968). In the instant case our factual review is not difficult, since there is no significant disagreement about the facts, but rather a difference between the parties as to the legal implications to be drawn from those facts.

The evidence shows that Mrs. Schneider was admitted to the Hospital on May 19, 1969, for elective surgery upon the submaxillary gland. Dr. Seitchik was her surgeon. The nature of intended surgical procedure was such that "endotracheal intubation" was to be used to anesthetize Mrs. Schneider. This process involves the placement of a tube in the trachea to transmit anesthetic and oxygen directly to the lungs from the anesthesia machine. The first step in the anesthesia process, "induction" was accomplished by the administration of a drug which paralyzed the patient so as to make her unable to breathe on her own.

Induction began at 1:47 P.M., with Dr. Duval and Dr. Calamba, a resident physician in anesthesiology employed by the Hospital, in attendance. Dr. Seitchik was immediately outside the operating room scrubbing at a sink, and by taking one or two steps could see into the operating room. Dr. Calamba attempted to intubate Mrs. Schneider, was unsuccessful, the tube was removed, and the patient reoxygenated. Dr. Calamba, made a second attempt and was again unsuccessful. Dr. Duval, who had been supervising the first two attempts, made the third attempt to intubate the patient herself, and she was similarly unsuccessful. Dr. Duval made a fourth attempt at intubation, and after this attempt the endotracheal tube was left in the patient's throat with anesthesia gases being administered. The fourth intubation attempt was completed about 20 minutes after induction. Approximately 10 minutes after the fourth intubation, Mrs. Schneider suffered a cardiac arrest due to lack of oxygen.

[ 257 Pa. Super. Page 356]

Dr. Seitchik, having completed his scrub, entered the operating room as Dr. Duval was placing the endotracheal tube during the third attempt. He had seen the first attempt by Dr. Calamba, apparently had not observed the second attempt, but observed all further actions from the time of the third attempt until the cardiac arrest.*fn1

Approximately 5 minutes after the fourth and last intubation, Dr. Seitchik noticed something about the patient's condition which disturbed him. He discontinued his operative preparations, and asked Dr. Duval if everything was satisfactory; he could not recall her answer. Shortly thereafter, someone announced that Mrs. Schneider was "cyanotic", (meaning that her skin color, due to lack of oxygen, had turned blue.) According to Dr. Seitchik's recollection, Dr. Goldstein soon entered the room and, together with Dr. Duval and Dr. Calamba, worked on the patient. During this period when Dr. Goldstein was in the room, estimated by all physicians to be approximately 5 minutes, Dr. Seitchik did nothing. Indeed, Dr. Seitchik had walked away from his patient before the cardiac arrest occurred.

During this period, Dr. Goldstein, apparently alerted by hearing a physician's request for a drug used in emergency situations (aminophylline), came into the operating room for the first time. This was approximately 5 minutes after the fourth intubation and approximately 5 minutes before the cardiac arrest. During the 5 minute period that Dr. Goldstein attended the patient, he listened for breath sounds (and was not satisfied), checked the blood pressure on two occasions (and found it dropping), checked the pulse (it was inadequate), squeezed the anesthetic bag (it was like "pressing against a brick wall"), inflated the bag by pushing on the stomach, observed Dr. Duval's difficulties in inflating the lungs by use of the bag, and apparently had discussions with Dr. Duval.

[ 257 Pa. Super. Page 357]

As Dr. Goldstein, now some 5 minutes after his arrival, was preparing to check the placement of endotracheal tube, the patient's heart stopped. Dr. Goldstein immediately removed the endotracheal tube, Dr. Seitchik immediately began external heart massage, and within 10 to 15 seconds the patient's skin color and heart beat returned to normal. However, permanent brain damage, from lack of oxygen, had already occurred.

According to plaintiffs' expert testimony, the patient was unable to get oxygen in her lungs because the endotracheal tube had been placed in the esophagus (passageway to stomach) or had "kinked" within the trachea; in either event, a mechanical obstruction would prevent passage of oxygen to the lungs. The expert opined that both Dr. Goldstein and Dr. Duval were negligent for having failed to diagnose the mechanical blockage of the trachea before the lack of oxygen caused "intractable hypoxia" and consequent brain damage. As to Dr. Goldstein, plaintiffs' testimony indicated that reasonable medical care required Dr. Goldstein to make an immediate determination whether the trachea was blocked to air passage, and having determined that to be the case (as plaintiffs' testimony indicated it was), he should have removed the endotracheal tube within 15 seconds of his arrival. As to Dr. Seitchik, plaintiffs' expert testimony was that Dr. ...

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