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Stumper v. Kimel

Decided: January 8, 1970.

GEORGE STUMPER, SR. AND VIRGINIA STUMPER, HIS WIFE, PLAINTIFFS-APPELLANTS,
v.
VICTOR KIMEL, DEFENDANT-RESPONDENT, AND BRUNO HENNIG, JULIUS GUSTAV MEDEK, MIGUEL MOYA, AND THE BETH ISRAEL HOSPITAL ASSOCIATION OF PASSAIC, DEFENDANTS



Sullivan, Carton and Halpern. The opinion of the court was delivered by Halpern, J.A.D.

Halpern

[108 NJSuper Page 210] Plaintiffs appeal from a judgment entered on a jury verdict in favor of defendant Dr. Victor Kimel. This medical malpractice suit was originally instituted against Beth Israel Hospital of Passaic, two nurses, Dr. Bruno Hennig, a resident physician employed by the hospital,

and Kimel. Shortly before summations plaintiffs settled their claims with all defendants, except Kimel, for the sum of $25,000.

A brief summary of the facts will point up the issues involved. On January 29, 1965 Kimel, a specialist in thoracic and cardio-vascular surgery and general surgery, operated on plaintiff George Stumper, Sr., and resected an aortic aneurysm. On the seventh post-operative day plaintiff developed an intestinal obstruction. To relieve this condition Kimel inserted a Miller-Abbott tube (M-A tube). The purpose and function of an M-A tube is not in dispute and is described in defendant's brief thusly:

A Miller-Abbott tube is a device which is inserted through the patient's nostril and passes through the esophagus into the stomach and ultimately into the small intestine. The purpose of the device is to decompress the small intestine by extracting the gastric contents.

The device consists of a tubular rubber hose which surrounds two lumen. One lumen is used for suction; the other communicates with a balloon. The lumen do not communicate with each other. The tube has a forked metal tip; one fork is marked 'suction', the other 'balloon'. The markings are engraved in the metal. The tips communicate with their respective lumen.

The suction lumen communicates with the interior gastric system through holes at the end of the tube. It is through this lumen that the gastric contents may be extracted.

The balloon lumen does not communicate with the interior gastric system, it ends with a balloon which is attached to the end of the M-A tube. The balloon is deflated when the tube is inserted. However, after it is inserted, water, air or mercury may be placed in the balloon. The tube is carried into the small intestine by the peristaltic action of the stomach. The balloon provides the bulk and weight on which these contractions may work.

Because the intestines or stomach may contact the suction holes, it is necessary to irrigate the tube with fluid in order to maintain suction. This is accomplished by introducing a saline solution through the suction lumen.

After Kimel had inserted the M-A tube on February 6, 1965 he entered orders on the hospital chart for the nursing staff to irrigate and advance it periodically. The hospital records indicate these orders were carried out. Plaintiffs do not dispute the fact that leaving such orders is the accepted

standard hospital procedure, since the nursing staff are hired, trained and qualified to perform this task.

On February 8, 1965 word reached Kimel that the wrong lumen of the M-A tube may have been irrigated. Kimel testified that he checked this report by personally examining the M-A tube and aspirating the balloon lumen, but found no fluid therein. He caused x-rays to be taken and when they appeared to be satisfactory he ordered the M-A tube removed by a resident physician. Dr. Hennig, one of the resident physicians employed by the hospital, attempted to remove it (not in Kimel's presence) but was unable to do so. Hennig testified that in his opinion someone had previously tried to remove it. Kimel verified the fact that it could not be removed, and ultimately determined that plaintiff had a perforation of the esophagus and a partially collapsed lung. Presumably these injuries were sustained when attempts were made to remove the M-A tube. Kimel performed a thoracotomy operation to repair the perforation and ...


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