Mazer v. Lipschutz

• Decision Date: 30 December 1963
• Docket Number: No. 14238-14239.,14238-14239.
• Citation: 327 F.2d 42
• Parties: Milton MAZER, Administrator of the Estate of Israel Abrams, deceased, Appellant, v. Hattie LIPSCHUTZ, Executrix of the Estate of Benjamin Lipschutz, deceased, Appellee. Milton MAZER, Administrator of the Estate of Israel Abrams, deceased, Appellant, v. Dr. Peter CHODOFF, Defendant and Third-Party Plaintiff, v. Hattie LIPSCHUTZ, Executrix of the Estate of Benjamin Lipschutz, Deceased, and The Albert Einstein Medical Center, Southern Division, Third-Party Defendants, Appellees.
• Court: U.S. Court of Appeals — Third Circuit

327 F.2d 42 (1963)

Milton MAZER, Administrator of the Estate of Israel Abrams, deceased, Appellant, v. Hattie LIPSCHUTZ, Executrix of the Estate of Benjamin Lipschutz, deceased, Appellee.

Milton MAZER, Administrator of the Estate of Israel Abrams, deceased, Appellant, v. Dr. Peter CHODOFF, Defendant and Third-Party Plaintiff, v. Hattie LIPSCHUTZ, Executrix of the Estate of Benjamin Lipschutz, Deceased, and The Albert Einstein Medical Center, Southern Division, Third-Party Defendants, Appellees.

Nos. 14238-14239.

United States Court of Appeals Third Circuit.

Argued June 3, 1963.

Decided December 30, 1963.

Rehearing Denied February 26, 1964.

COPYRIGHT MATERIAL OMITTED

Harvey B. Levin, Lazarus & Levin, Philadelphia, Pa. (Bernstein & Bernstein, Philadelphia, Pa., on the brief), for appellant.

John B. Martin, Philadelphia, Pa. (John M. Ross, Duane, Morris & Heckscher, Philadelphia, Pa., on the brief), for appellee Lipschutz.

Francis E. Shields, Philadelphia, Pa. (Pepper Hamilton & Scheetz, Philadelphia, Pa., on the brief), for appellee Dr. Peter Chodoff.

Before BIGGS, Chief Judge, and McLAUGHLIN and GANEY, Circuit Judges.

Rehearing Denied in No. 14238 February 26, 1964.

BIGGS, Chief Judge.

Jurisdiction in the suits at bar is based on diversity and jurisdictional amount. The operative facts occurred in Pennsylvania and the law of that Commonwealth therefore is applicable. The jury could have found the following from the evidence.

Israel Abrams was an Assistant Professor of Mathematics at Drexel Institute and was admitted to The Albert Einstein Medical Center, Southern Division, in Philadelphia, on December 17, 1957, on the surgical service of Dr. Benjamin Lipschutz for elective¹ gall bladder surgery. Professor Abrams was placed in Room 807. On the same day another patient, also named Israel Abrams, was admitted to the hospital and was put in Room 342. Albert Kohn, head technician in charge of the hospital's blood bank, and Dr. Peter Chodoff, the anesthesiologist who was to serve and who did serve at Professor Abrams' operation, acting independently of each other, checked the operating schedule on December 18, the day before Professor Abrams' operation took place. On that day Dr. Chodoff ordered the blood bank to set aside two bottles of blood for Professor Abrams. Kohn checked the hospital census and found that an Israel Abrams was registered in Room 342. He called the "I-V" (Intravenous) team and ordered that a specimen of that Israel Abrams' blood be typed. On typing, this blood was found to be type "A." About mid-afternoon on December 18, Kohn was informed there were two Israel Abrams in the hospital. He checked with the operating room and found that Professor Abrams was in Room 807 and it would seem, though the record is not clear on this point, that he then called for a specimen of the Professor's blood for typing. A specimen of blood was delivered to him.

On the morning of the operation, which took place on December 19, a bottle of blood was placed in the operating room for use in connection with Professor Abrams' operation. Dr. Chodoff stated that the bottle of blood was labeled "Israel Abrams" and that the operating room chart showed that the bottle was marked "342 A Positive." Kohn testified that he himself put the label on this bottle. The operation was proceeded with by Doctor Lipschutz as the operating surgeon and during its course, Professor Abrams' cystic artery was severed. Professor Abrams went into shock and blood was imperatively required. Dr. Chodoff looked at the bottle of blood and noticed immediately that it was labeled in substance as stated.

Kohn was summoned to the operating room and was asked by Dr. Chodoff about the apparently erroneous labeling of the bottle of blood. Kohn told Dr. Chodoff that the room number was a clerical error, that the blood was of the correct type and that it was proper to give it to Abrams.² According to Dr. Chodoff, Kohn stuck his head through the open operating room door. According to Kohn's testimony, he talked to Dr. Chodoff in the operating room through the open door of the adjacent scrub room. Both Dr Chodoff and Kohn agreed that they were separated by a distance of about five feet. One pint of blood was given from the bottle, marked as we have stated, to Professor Abrams. Five other pints of blood were also given to him. There was evidence from which the jury could have inferred that some of the blood given to Professor Abrams was of an incompatible type. The trial court stated in its charge: "It seems to be taken without argument that there was a wrong room number on the bottle of blood."

A sponge count was taken after the incision in Professor Abrams' abdomen had been closed and it was found that two sponges were missing. Approximately one-half hour after the operation, Dr. Lipschutz returned Professor Abrams to the operating room, reopened his abdomen, and removed one sponge but left the other within the patient.

On December 23, Professor Abrams, then suffering from acute kidney failure, a transfusion reaction, was transferred by Dr. Lipschutz to the University of Pennsylvania Hospital and put under the care of Dr. Lewis Bluemle, a specialist in the use of the artificial kidney. Dr. Bluemle testified that Dr. Lipschutz twice denied knowledge of the occurrence of any transfusion reaction. Dr. Bluemle testified that on the second denial, "I rather abruptly telephoned the blood bank of the Albert Einstein Hospital in Dr. Lipschutz's presence and asked the technician in charge the blood type of Mr. Professor Abrams and was told it was Type O, Rh-positive. * * * I presented this information to Dr. Lipschutz at that time and he said yes, there was a possibility that a transfusion reaction had occurred * * *." Dr. Bluemle also testified that because of increasing pain suffered by Professor Abrams in the right upper part of the abdomen and in the shoulder, indicating something wrong in the area of the liver or in the area of the right diaphragm, an X-ray was taken of this area at the University of Pennsylvania Hospital and the sponge remaining in the patient's abdomen was discovered. Dr. Bluemle stated that "the presence of a foreign body of this sort in the abdomen can hasten the development of uremia * * *."

Professor Abrams died on January 4, 1958. There was ample evidence that the administration of the wrong type of blood was a substantial factor in causing his death and also that it was the sole cause of death. There was also proof that the unremoved sponge was a contributing cause. Two suits were brought by Professor Abrams' administrator. One (C.A. No. 25,749 in the court below) was originally filed against Dr. Lipschutz and continued after his death against his executrix as substituted party. The second suit (C.A. No. 27,438 in the court below) was filed against Dr. Chodoff, the anesthesiologist whose admitted duty it was to administer and who did in fact administer the blood transfusions. The two cases were consolidated for trial and, properly, were tried together.³

Three interrogatories were submitted to and answered by the jury on the issue of fault. The interrogatories and the jury's answers to them were as follows: "1. Was there negligence on the part of Dr. Chodoff which was a contributing cause of the death of Israel Abrams?", "Answer: No."; "2. Was there individual negligence on the part of Dr. Benjamin Lipschutz which was a contributing cause of the death of Israel Abrams?", "Answer: No."; "3. Was there negligence on the part of any employee of Albert Einstein Medical Center, Southern Division, other than Dr. Chodoff's which was a contributing cause of the death of Israel Abrams?", "Answer: Yes." After the third interrogatory the court gave the following instruction: "If you answer any or all of the foregoing questions `yes,' then answer the following." The "following" questions related to the amounts of damage, if any, suffered by the plaintiff. Because the plaintiff had previously executed a release in favor of the hospital, in the light of the two exculpatory answers of the jury, the findings, with the consent of the parties, were molded into verdicts in favor of the two individual defendants. The plaintiff then filed in the suit against Lipschutz's executrix (C.A. No. 25,749 in the court below) a motion to set aside the judgment and enter judgment for the plaintiff, and, in the alternative if the first motion was denied, a motion for a new trial. In the case against Dr. Chodoff (C.A. No. 27,438 in the court below), in which Dr. Lipschutz's executrix and the Albert Einstein Medical Center were joined as third-party defendants, the plaintiff filed a motion for a new trial. The motions were denied and the appeals at bar followed. The appeal from C.A. No. 25,749 is at our No. 14,238; that at C.A. No. 27,438 is at our No. 14,239.

The plaintiff has asserted a number of grounds in this court as to why the judgment should be reversed and the verdict molded and judgment entered against Dr. Lipschutz's executrix for the amounts awarded as damages by the jury, and in the alternative that a new trial be granted. In Dr. Chodoff's case the plaintiff contends that a new trial should be granted.

The first ground for reversal asserted by the plaintiff is bottomed on the "Captain-of-the-Ship" doctrine and is to the effect that under the law of Pennsylvania the operating surgeon, Dr. Lipschutz, as the captain of the ship was legally responsible for the negligence which caused Professor Abrams' death. The plaintiff cites three Pennsylvania cases to support his position.

The first of these is McConnell v. Williams, 361 Pa. 355, 65 A.2d 243 (1949). In this case Mrs. McConnell consulted the defendant doctor to attend her during a pregnancy and to deliver her child. The doctor found that a caesarian operation was necessary and caused it to be performed at a Philadelphia hospital where he was one of the chiefs of the obstetrical staff. The...