Kolesar v. United States

• Decision Date: 11 August 1961
• Docket Number: Civ. No. 9698-M.
• Citation: 198 F. Supp. 517
• Parties: Marrian KOLESAR and Andrew J. Kolesar, her husband, Plaintiffs, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — Southern District of Florida

198 F. Supp. 517

Marrian KOLESAR and Andrew J. Kolesar, her husband, Plaintiffs, v. UNITED STATES of America, Defendant.

Civ. No. 9698-M.

United States District Court S. D. Florida, Miami Division.

August 11, 1961.

Richard F. Ralph, Sherouse & Corlett, Miami, Fla., for plaintiffs.

Daniel Pearson, Ass't U. S. Atty., Miami, Fla., for defendant.

CHOATE, District Judge.

This is an action for personal injury by Marrian Kolesar and for loss of consortium by her husband, Andrew J. Kolesar, arising from an operative episode at Key West Naval Hospital, Key West, Florida, on January 21, 1958, under the Federal Tort Claims Act, 28 U.S.C.A. §§ 1346, 2671 et seq. The defendant answered admitting the operation of the hospital by the Navy, a Federal Agency; the acceptance of the plaintiff, Marrian Kolesar, as a patient, as the dependent wife of Andrew J. Kolesar, an enlisted man in the United States Navy; the undertaking of the operation; and generally denied negligence. The cause came on for trial on July 18-20, 1961, and the Court having considered the pleadings and the evidence, now files the following findings of fact and conclusions of law:

Findings of Fact.

1. On and before January 20, 1958, to include the date of trial, the plaintiff, Andrew J. Kolesar, was a Chief Petty Officer, in the United States Navy, an Armed Service of the United States administered by the Department of the Navy and of Defense; Federal Agencies of the sovereign defendant.

2. The plaintiffs, Andrew J. Kolesar, and Marrian Kolesar, were married in 1954 and have remained so since.

3. Marrian Kolesar was the dependent wife of Andrew J. Kolesar, and as such was admitted on January 20, 1958, to the Key West Navy Hospital, Key West, Florida, within the Southern District of Florida, for surgery in the nature of an exploratory laparotomy scheduled for January 21, 1958, after a history of abdominal pain in the lower right quadrant.

4. Marrian Kolesar was 32 years of age and, although she had an extensive record of female complaints and one operation, she had good lungs and heart, and was a good surgical risk at the time of her admission and prior to the operation being undertaken.

5. On January 21, 1958, Marrian Kolesar was prepared for surgery and spinal anesthetic administered. Assigned to the operation was Lt. Comdr. Frank Ostapowicz, M. D.; Lt. Robert P. Johnson, M. D., to assist Dr. Ostapowicz; Lt. Julius R. Earle, M. D., as anethesiologist; Corpsman Gary and Corpsman McClosky, as scrub and circulating corpsmen. Another corpsman was present as a trainee. Lt. Comdr. Laurette Picard was operating room supervisor at the time. While not assigned formally to the operation, she followed the practice of staying in and supervising the operation room involving female patients closer than any of the other operating rooms in the suite which might be in operation that day. Nurse Herring, a Navy nurse, also participated in operative procedures although not originally assigned as a member of the surgical team.

6. At 10:08 a. m. the patient was draped. Dr. Ostapowicz asked Dr. Earle if it was alright to proceed and received an affirmative reply. An existing laparotomy scar was excised at 10:10 which did not bleed. Dr. Ostapowicz immediately announced this fact and asked Dr. Earle to check the patient. Dr. Earle reported a blood pressure of 40 over zero and then 0, and pulse unobtainable. Dr. Earle introduced ephedrine intravenously and thereafter listened to the heart and without comment put the ear plugs in Dr. Ostapowicz's ears who after listening requested a long needle and the summoning of Dr. Moore, who was a Naval officer and general surgeon. Dr. Johnson traumatized the patient's chest, listened for heart sounds and was then handed a syringe with a long needle containing 2 cc of ephedrine by Dr. Ostapowicz. 1 cc was injected into the patient's heart chamber and the remaining cc was injected into the heart musculature. Dr. Johnson again listened to the patient's heart and heard nothing.

7. When Dr. Ostapowicz called for a long needle and Dr. Moore, Corpsman Gary left the operating room and encountered Nurse Picard seated at her desk in the operating suite about 20 feet from the operating room entrance. After asking why he had broken scrub Nurse Picard moved from her desk past the entrance to the operating room, entered the doorway into a closet or room where drugs were secured. Obtaining a bottle of levophed she then proceeded to the operating room where she withdraw the ephedrine into the syringe with a long needle which she gave to Dr. Ostapowicz and which he then gave to Dr. Johnson.

8. Dr. Karl B. Absolom appeared in the operating room, was gowned and gloved by one of the corpsmen and proceeded to the operating table when he was handed the knife Dr. Ostapowicz held in his hand. Dr. Absolom proceeded to perform an open thoracotomy, without the presence of bleeding, and had his hand on the patient's heart in approximately 45 seconds from the time he made the incision. After 5 or 10 pumping motions the heart resumed a normal but rapid beat.

9. Thereafter a blood transfusion was instituted and the chest and abdominal incisions were closed.

10. The human brain is the first organ of the body affected adversely by a lack of oxygen which is supplied by the circulation of blood pumped by the heart with oxygenation of the blood by the lungs and respiratory processes. At the time the patient's abdominal incision did not bleed and she had no discernable pulse it should have been clearly apparent that the patient's brain was being deprived of a necessary supply of oxygen because of circulatory insufficiency.

11. A deprivation of an adequate supply of oxygen to the brain of a human being beyond the period of four minutes will most likely cause irreversible damage to the higher centers of the brain tissue and results in a neurological deficiency in a human being. The extent of brain damage has a direct relation to the passage of time. This period was generally accepted by the medical profession on January 21, 1958.

12. Acceptable medical practice at Key West Naval Hospital on January 21, 1958, dictated a diagnosis of cardiac arrest and circulatory insufficiency as to Marrian Kolesar at the time her abdominal incision did not bleed and she had no obtainable pulse.

13. No notice was taken, or record kept, of the passage of time during either the various resuscitative procedures adopted, or in connection with the initiation of a thoracotomy so as to manually restore circulation within the four minute period.

14. A period materially in excess of four minutes occurred between the time Marrian Kolesar's abdominal incision did not bleed, and she had no obtainable pulse, until effective resuscitative procedures were obtained by manual cardiac massage which restored the flow of blood to the patient's brain. This constituted a departure from acceptable medical practice, at Key West Naval Hospital on January 21, 1958.

15. Cardiac arrests and circulatory insufficiencies were generally known on January 21, 1958, to be an anticipated occurrence in connection with surgery. It was generally accepted in the Medical Profession on January 21, 1958, that a surgeon undertaking a surgical procedure should possess, as a part of his qualifications, the ability to perform a thoracotomy and manual cardiac massage.

16. Marrian Kolesar is one hundred per cent or totally and permanently disabled as a result of brain damage...