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Yerzy v. Levine

Decided: January 15, 1970.

SHIRLEY YERZY AND RICHARD YERZY, HER HUSBAND, PLAINTIFFS-APPELLANTS,
v.
DAVID LEVINE, M.D., DEFENDANT-RESPONDENT



Kilkenny, Labrecque and Leonard. The opinion of the court was delivered by Labrecque, J.A.D.

Labrecque

In this suit alleging medical malpractice plaintiffs appeal from a judgment in favor of defendant.

On January 16, 1964, while a patient in Barnert Memorial Hospital, Paterson, plaintiff Shirley Yerzy came under the surgical care of defendant. She had previously suffered several gall bladder attacks and defendant diagnosed her condition as chronic cholelithiasis (chronically inflamed gall bladder with stones). On his recommendation plaintiff consented to surgery for removal of the gall bladder. The operation took place on January 17. On the second day thereafter plaintiff observed a large quantum of bile, which was staining, saturating and seeping through the padding which covered

her surgical incision, and accompanied by pain in the right side of her back. The heavy drainage persisted throughout her stay in the hospital.

When Mrs. Yerzy questioned defendant he attributed the unusual, heavy bile drainage to a loosening of a suture at the cystic duct, and suggested that plaintiff "wait and see, perhaps nature will take care of it and it will close up by itself." He told her this notwithstanding that he had never seen a suture loosen at the cystic duct. By January 27, when the time for Mrs. Yerzy's discharge was at hand and the drainage had not stopped, he ordered X-rays (an intravenous cholangiogram) for the asserted purpose of effectuating a visualization of the common bile duct. Because the dye used had not been properly absorbed so as to permit visualization, the X-rays were negative.

By this time defendant, after telling Mr. Yerzy that his wife had a biliary fistula, recommended that she be examined by someone with more experience. In line with this, following her discharge from the Barnert Hospital she was admitted to the New York Hospital, where she came under the care of a Dr. Glen (who, along with another, had been recommended by defendant). Dr. Glen performed a second operation on February 3, 1964 which revealed that the common bile duct had previously been completely severed.

Mrs. Yerzy testified she was not thereafter informed of the real nature of the condition found or its relationship to the manner in which the first operation had been performed. She was told by Dr. Glen only that her bile duct had been found to be "interrupted." She thought he also said there was a stone in the duct.

For better understanding of the contentions of the respective parties, we are told that the gall bladder is located on the underside of the liver and that it discharges concentrated bile through the cystic duct into the common bile duct which in turn discharges into the upper end of the small intestine. Bile (not concentrated) is also discharged directly from the liver through the hepatic duct into the common bile duct.

Thus severance of the common bile duct permitted bile to be freely discharged from the liver into the upper abdominal area.

Dr. Levine testified that prior to beginning the removal of Mrs. Yerzy's gall bladder he palpated the common duct and found nothing abnormal. During the course of the removal of the gall bladder he "dissected out" the cystic duct, i.e. , it was ligated in two places and then cut in-between, so as to sever the gall bladder from it. The operation did not call for surgery of the common duct, which was beyond, and at the other end of the cystic duct. While Dr. Levine denied severing it, he conceded that "apparently it must have happened" at the time of his operation.

Mrs. Yerzy testified that her knowledge of her true condition and defendant's responsibility in connection with it began with her discovery, on a visit to the New York Hospital sometime in the first half of 1966 for further X-rays, that her bile duct had been severed. Her complaint was filed on October 6 of that year. The first count charged medical malpractice and the second, fraudulent concealment by defendant of his asserted negligence in severing the common duct during the ...


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