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Schueler v. Strelinger

Decided: November 2, 1964.

HEINRICH SCHUELER, AS EXECUTOR OF THE ESTATE OF JULIA BARENFANGER, DECEASED, AND OTTO SCHUELER, PLAINTIFFS-RESPONDENTS,
v.
ALEXANDER STRELINGER, DEFENDANT-APPELLANT



For reversal -- Chief Justice Weintraub, and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For affirmance -- None. The opinion of the court was delivered by Francis, J.

Francis

[43 NJ Page 332] Defendant Dr. Alexander Strelinger performed a subtotal gastrectomy on one Julia Barenfanger on June 17, 1960. In the operation about 60% of her stomach was removed. She died on July 3, 1960. Thereafter, plaintiff Heinrich Schueler, as executor of her estate, brought this action against the doctor alleging negligence in the care and treatment given, and seeking damages for pain and suffering and expenses to which she was subjected thereby after the operation and until her death. Recovery was sought also under the Death Act, N.J.S. 2A:31-1 et seq., for the pecuniary loss suffered by her next of kin as the result of the death. Following a jury trial, verdicts of $8,000 for the death and

$2,000 for the antecedent pain and suffering were returned against the defendant. On appeal the Appellate Division, in an unreported opinion, affirmed the judgments. In doing so, however, it found no proof of actionable negligence on two of the three complaints made against Dr. Strelinger. As to the third it declared the evidence of departure from the accepted standard of care was sufficient to warrant determination of the issue by the jury. And, after examining the record, it concluded the jury verdicts could not be regarded as contrary to the weight of the evidence. Thereafter, we granted defendant's petition for certification. 41 N.J. 309 (1964).

I.

Dr. Strelinger was licensed to practice medicine and surgery in the State of New York in 1928 and in New Jersey in 1929. In October 1929 he opened his office in Elizabeth, New Jersey and except for periods of graduate study and Army service, he has practiced in that city ever since. He is a specialist in surgery with some emphasis in gastroenterology.

Julia Barenfanger was 53 years of age at the time of her death. She first came to Dr. Strelinger as a patient in 1937. Their contacts thereafter are not significant until April 25, 1959 when she came to his office complaining of gas and a "sticky" pain in the upper part of the abdomen which had persisted for two years. She had heartburn, was very constipated and seemed to have a mass in the left perimetrium. Dr. Strelinger suggested that gastrointestinal studies be made. She did not return to the doctor until more than a year later when the complaints were more pronounced. The doctor told her of the likelihood of a tumor and the immediate need for the epigastric studies. On May 27, 1960 the studies were made. Examination of her stools revealed the presence of occult blood and the X-rays showed a pyloric lesion which Dr. Strelinger felt might be malignant. He advised her that she had some grave condition in her stomach and that an operation of a serious nature was necessary.

Before anything further was done, however, Dr. Strelinger sent her to Dr. Isaac Gelber, a specialist in diseases of the stomach and intestinal tract, for examination and diagnosis. Dr. Gelber's independent studies, including X-ray and fluoroscopic examination, showed an ulcer crater on the stomach side of the pylorus. This location was important because an ulcer there carries a substantial incidence of malignancy; about 25% of the cases are malignant. His diagnosis was that Mrs. Barenfanger had a pyloric ulcer, probably benign, but malignancy (neoplastic infiltration) could not be excluded. The possibility of malignancy was an important consideration because of her history of recent 12-pound weight loss, loss of appetite, and the presence of blood in the stools. In Dr. Gelber's opinion, the condition could not be treated medically and Mrs. Barenfanger should be given the benefit of immediate surgery. He recommended a stomach resection which involved removal of 1/2 to 3/4 of the stomach. "Immediate" surgery did not mean the next day, but rather within the next week, ten days or perhaps two weeks in the discretion of the surgeon.

Dr. Strelinger responded to the confirmation of his diagnosis by hospitalizing the patient in St. Elizabeth's Hospital, Elizabeth, New Jersey, on June 8, 1960, two days after receiving the report. Once there, arrangements were made for various blood studies and tests, and because the patient was anemic due to the loss of a substantial amount of blood, a number of transfusions were ordered. Among the blood studies made at Dr. Strelinger's order was a prothrombin test. It is designed to determine whether the coagulation rate of the blood is within normal limits. The laboratory report on Mrs. Barenfanger's blood showed a 17 second rate against the ideal control of 12 seconds. Dr. Strelinger considered this rate to be within normal limits. It was variously described by the medical witnesses as within normal limits, at the upper level of normal, and at a borderline level. As will be seen, the significance of the prothrombin test is at the heart of the plaintiffs' case.

The operation was not performed by Dr. Strelinger until June 17. Between the 8th and 17th he undertook to build her up for it. Among other things he had her injected daily intramuscularly with vitamin K which all the medical experts recognized as a blood-clotting aid, and designed to improve the prothrombin rate. When the operation was scheduled for the 17th, the doctor ordered six pints of cross-matched blood for transfusion on that day. In addition, on June 14 or 15, Dr. Albert Minzter, a specialist in internal medicine, was called in consultation. The purpose was to obtain his preoperative evaluation of Mrs. Barenfanger's fitness for operation, and her general condition, particularly with regard to her cardiovascular condition. He examined her, studied the hospital records, the laboratory tests, the X-rays and electrocardiograms (which had been made at Dr. Strelinger's request on June 14), and reported that in his judgment there was no contraindication to surgery. He found no reason for objection to surgical procedure.

We will not undertake to detail the specific care, tests and medicines given between the 8th and 17th. It seems sufficient to say that all the medical experts agreed that the preoperative measures taken by Dr. Strelinger represented standard and accepted medical practice. The only exception to standard procedure claimed by plaintiff had to do with the prothrombin test which, as will appear hereafter, did not have sufficient legal substance to warrant submission of the issue of malpractice to the jury for determination.

On June 17 Dr. Strelinger performed the subtotal gastrectomy in which about 60% of the stomach was excised. The incision revealed a fibrous mass of four by five centimeters. It was much larger than the lesion indicated in the X-rays but turned out to be noncancerous. Moreover, the region was distorted due to long-standing inflammation. According to the records, about 700 cc. of blood were lost during the operation and 500 cc. were replaced by transfusion in the operating room. A drain was inserted and the wound was closed. At the conclusion of the operative procedure, Dr. Strelinger said

the patient's general condition was satisfactory when she was taken to the recovery room; the nurse's written note was "Immediate post-operative condition, good." He departed from the hospital between 1:00 and 1:30 P.M. after leaving instructions for a further blood transfusion and other post-operative care.

Around 4:00 P.M. the doctor was advised the patient was draining blood and he returned immediately to the hospital. He found she was having substantial internal bleeding and made immediate arrangements to return her to the operating room to reopen the incision. An additional transfusion was instituted and continued in the operating room. Then with the assistance of an anesthesiologist, two surgeons, Dr. Sun Chung and Dr. Schoss, and an intern, he undertook the second operation. The original incision was reopened and considerable blood found in the abdomen. The blood was removed and an examination made to locate bleeding points. No bleeding vessel or broken tie or definite bleeding point was found -- only some minimal oozing in the region of the duodenal stump, the pancreas and the gastrolineal ligament. Sutures were inserted at these places. Two drains were left in the abdomen, one draining the duodenal stump region and the second under the liver. The incision was sutured and the immediate post-operative condition was described as satisfactory.

During this second operation the liver suffered a slight tear, about 1/2 inch to 5/8 inch long. It was sutured. Plaintiffs claimed at the trial that the tear resulted from lack of due care. The Appellate Division found no actionable negligence in that connection. We agree and see no need for further discussion of the matter, except to note that such issue should not have been submitted to the jury. There was no objection to the charge on that score, however; nor was there a motion or a request that the issue be excluded from the case or jury consideration as a basis for a finding of malpractice.

After the second operation approved medications were administered in an attempt to control any further bleeding. In addition, the patient was given another transfusion. A condition

of shock had developed, attended by decrease in the blood pressure and increase in temperature. Measures were taken to raise the pressure and penicillin was given to counteract the temperature.

At about 8:00 A.M. on June 18, the day after the second operation, defendant called Dr. Louis S. Wegryn for consultation and examination. Dr. Wegryn is a specialist in surgery and Dr. Strelinger's purpose in consulting him was to obtain advice as to whether further operative intervention might be utilized. Dr. Wegryn found some continued bleeding although it was not profuse. At his suggestion primarin was given to aid in subduing the bleeding. He recommended a transfusion of fresh blood and gave the opinion that no further surgery was indicated. Before any additional transfusion was given, Dr. Strelinger asked Dr. Stanley Pomerantz, a specialist in internal medicine and hematology, to see Mrs. Barenfanger. The examination took place around noon on June 18. Dr. Pomerantz studied the hospital records and examined the patient. He noted there was no preoperative history of bleeding tendency, and he found no bruise marks or signs of petechial hemorrhages on her body, particularly at points of puncture for the transfusions and other intravenous and muscular injections, indicating blood-clotting deficiency. He observed a continuance of bleeding at the operative site but a bleeding time test ordered by him was within the upper limit of the normal range. He testified, also, that a prothrombin test apparently made earlier in the day showed a 25 second rate with a control of 12 seconds. That rate was abnormal. He recommended the patient be given whole, fresh blood from siliconized equipment, as well as other medication to correct the bleeding condition, and the effect observed. His suggestions were followed by Dr. Strelinger.

According to Dr. Strelinger, the bleeding came under control before the whole blood from the siliconized containers was transfused on the morning of June 19. Moreover, the blood pressure and elevated temperature had responded to the medication. Unfortunately, a lessening of urinary output had

appeared also and measures were being taken to overcome a ...


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