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Medvecz v. Choi

filed: December 22, 1977.



Adams, Van Dusen, Circuit Judges, and Stern, District Judge.*fn*

Author: Adams


ADAMS, Circuit Judge.

This appeal raises the question whether in a medical malpractice action it was reversible error for the district court to refuse to submit to the jury the question of an anesthesiologist's alleged abandonment of the patient during an operation, and the issue of punitive damages that might flow from such an abandonment. Because we conclude that in both respects there was reversible error, a new trial is required.


Violet Medvecz underwent elective renal arteriography at the Altoona Hospital, Altoona, Pennsylvania, on December 27, 1972. The procedure required the injection of a radiopaque dye, angio-conray, into her blood vessels for the purpose of taking x-rays of her right kidney.*fn1 Within forty-eight hours of the operation, the patient became completely and irreversibly paralyzed from the waist down.*fn2

During December of 1974, Ms. Medvecz and her husband brought an action for malpractice against Dr. Choi, the anesthesiologist for her operation, in the Eastern District of New York, where he then resided. The New York complaint was transferred to the Western District of Pennsylvania, where the Altoona Hospital is located, and was consolidated with actions that the plaintiffs had brought against the surgeon, Dr. Jaime Montanez, and the company that had manufactured angio-conray, the substance that had been injected into Ms. Medvecz.

After extensive discovery, Dr. Montanez in February of 1976 settled his dispute with the plaintiffs, and in early October of 1976 the drug company also settled. As a result, the plaintiffs received $160,000, and the surgeon and the drug company each received releases. However, Dr. Choi joined the surgeon, the drug company and the hospital as third-party defendants. The trial finally began in the latter part of October, 1976.

Both parties conceded that the radiopaque dye used in the operation has neurotoxic properties, and that the patient's paralysis resulted from the movement of the dye from her blood vessels, where it had been injected, into her spinal cord. Yet, the parties differed as to the precise medical cause of the transfer of dye into the spinal cord.

Plaintiffs maintained that the movement of the dye resulted because the injections were continued despite a precipitous drop in Ms. Medvecz' blood pressure. They presented evidence that a qualified anesthesiologist, who is responsible for monitoring a patient's blood pressure, should have informed the surgeon that the blood pressure had dropped dramatically during the operation, and should have been aware of the neurotoxicity of the dye used in the radiography.*fn3 The surgeon testified that he was never told that Ms. Medvecz' blood pressure had dropped significantly, and that he would have halted the surgical procedure had he been so informed.

The plaintiffs argued that another cause of injury to the patient was the administration of neosynephrine in order to raise her blood pressure. Since the consequence of administering neosynephrine is to constrict the blood vessels, the plaintiffs contended that its injection caused the dye in effect to be squeezed into the patient's spinal cord. They presented evidence that a qualified anesthesiologist would have known that the administration of neosynephrine in such circumstances was improper.

Dr. Choi did not dispute that the recording of the patient's blood pressure and the administration of drugs, such as neosynephrine, in response to low blood pressure were the responsibilities of the anesthesiologist. However, Dr. Choi argued that the transfer of dye to the spinal cord occurred because of the volume, pressure or frequency of the injections of the dye, which were matters within the control of the surgeon.*fn4

On this appeal, the central factual issue is whether Dr. Choi was present during the entire radiography procedure and, if he left the operating room during the procedure, whether he was replaced by a competent anesthesiologist. In the course of his deposition, Dr. Choi had maintained that he had been in attendance throughout the operation and until the patient's transfer to the recovery room. Although his direct examination at trial dealt with other matters, on cross-examination he suddenly testified that he did not stay in the operating room throughout the surgical procedure. Also, on cross-examination, he stated - for the first time - that he had been replaced by a qualified anesthesiologist.*fn5 Initially his testimony regarding these points was tentative. He first asserted that " (we) might have switched our duty to cover the patients." (emphasis added). A few moments later, however, he declared that " I am sure there was a duty switch at the time [1:30 p.m.] and a new person continued care of anesthesia." (emphasis added).*fn6

On further probing, Dr. Choi stated that he could not recall who had taken over his duties as anesthesiologist. He said as to this matter:

I have no memory about that, but I am sure there was a duty switch at the time and a new person continued care of anesthesia.*fn7

Moreover, Dr. Choi conceded that he could not remember where he had gone after leaving the operating room, although he testified that he could not rule out the possibility that he had gone to lunch.

Dr. Choi explained that his position regarding his involvement in the operation changed after he had examined more closely the anesthesia chart. This chart, kept by the anesthesiologist himself, includes recordings of Ms. Medvecz' pulse and blood pressure and of the injections administered to her. The markings made to record the patient's pulse and blood pressure after 1:30 are clearly different from those made before that time.*f ...

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