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State v. Fishel

Decided: March 23, 1962.


Appeal from the Court of Common Pleas of Baltimore City; Sodaro, J.

Brune, C. J., and Henderson, Hammond, Prescott and Horney, JJ. Brune, C. J., delivered the opinion of the Court.


This is an appeal from a judgment entered upon the verdict of a jury in favor of the defendant in a medical malpractice death case. The widow and infant children of the decedent sued the defendant surgeon for damages under the Death by Wrongful Act statute, and the widow, as executrix, also brought suit against the surgeon for medical expenses and for pain and suffering. The two causes of action were joined in one declaration. The plaintiffs charged the defendant with negligence in delaying hospitalization and in delaying an operation. The charge of delaying the operation as made in the original declaration related to the time of the admission of the decedent to a hospital. As amended after the testimony had been concluded but before the case went to the jury, this charge pertained to a period some hours later.

The contentions raised by the plaintiffs-appellants relate (a) to the admission of opinion testimony by expert witnesses for

the appellee and (b) to instructions to the jury. They challenge the expert testimony on the ground that hypothetical questions, identifying the facts upon which the experts' opinions were based, were not used. This presents the most important problem in the case. The defendant-appellee controverts both of the appellants' contentions, and contends at the outset that his motion for a directed verdict should have been granted. We shall consider the appellants' contentions first.

Most of the facts in the case are clear and undisputed. The decedent, Mr. Solomon, was a man thirty-six years old at the time of his death on October 9, 1956. The first known manifestation of his last illness, which ultimately proved to be due to a bleeding duodenal ulcer, came early in the morning of Friday, October 5, 1956, when he vomited a dark, coffee-colored liquid and passed some blood rectally on several occasions and also had some stomach spasm. He consulted Dr. James Frenkil, who was his employer's compensation physician, about the middle of that day. Dr. Frenkil suspected gastro-intestinal trouble and made an appointment for Mr. Solomon to have a barium x-ray examination made the next morning. Dr. Frenkil noted that Mr. Solomon was nervous about his wife, who was then pregnant. He told Mr. Solomon to go home and put an ice bag on his stomach; and, as Dr. Frenkil was going out of town, he instructed him in case of further trouble to call the defendant, Dr. Fishel, who was associated with Dr. Frenkil. Dr. Fishel had only recently entered private practice, but he had had excellent surgical training and experience, including a good deal of abdominal surgery and, specifically, some gastro-intestinal surgery.

Mr. Solomon did have more bloody bowel movements and telephoned Dr. Fishel at about 7 P.M. Dr. Fishel visited Mr. Solomon at the latter's home at about 8:30 or 9:00 P.M. and took a history from him. In it Mr. Solomon stated that he had not had any bowel trouble prior to his current illness, and Dr. Fishel prescribed paregoric for the night. In the history then taken Dr. Fishel noted that there were some indications of prior indigestion, but that the patient denied having consulted any doctor for the treatment of ulcers, indigestion or anything relating to the intestinal tract. He also denied that he was

nervous or worried about anything except the condition of his wife who was then pregnant. After he entered the hospital on Sunday afternoon he gave a history disclosing that he had consulted a doctor about some stomach trouble about a year earlier and had been given probanthene, which is a medication to quiet irritability of the stomach, but that he had taken none for about six months. It later developed also that he had worries about his job. Mr. Solomon also told Dr. Fishel at this first interview on Friday evening that he had had some high and some low blood pressure, which had fluctuated with his weight. Dr. Fishel took Mr. Solomon's blood pressure and pulse, both of which were good.

During the night Mr. Solomon passed more blood rectally and nearly fainted on Saturday morning. He telephoned Dr. Fishel, who again came to see him, thought him in no condition to go in town for his scheduled barium examination, and arranged for a laboratory technician to come out, obtain a blood sample and make tests of it and report to Dr. Fishel. This was done. The report showed a hemoglobin count of 8.8 as against a stated normal of 14 and a hematocrit count of 25 as against a stated normal of about 45. Dr. Fishel again went to see Mr. Solomon, recommended hospitalization and, by telephone from Mr. Solomon's home, found he could obtain an emergency bed in a ward at Sinai Hospital, which was the hospital of the patient's choice. Mr. Solomon declined or refused to go to the hospital. He did not wish to be hospitalized, he was concerned about his wife's condition (she had had some bleeding in connection with her pregnancy), and he did not wish to go into the hospital as a ward patient. There is a dispute as to what was then said by Dr. Fishel with regard to the need for, or urgency of hospital treatment. This will be more fully considered later.

Mr. Solomon telephoned Dr. Fishel the next morning, Sunday, October 7th, at about 9:30 or 10:00, and said that he was feeling somewhat weaker and was then willing to go to the hospital. Dr. Fishel again went to see him. He tried to get a room at Sinai Hospital, but could not, and then tried another hospital without success. He suggested a third where he

had privileges, but Mr. Solomon did not wish to go there. Through another doctor, and with Dr. Fishel's approval, the Solomons then tried to get a bed at Sinai, also without success. Dr. Fishel then left the Solomons' home, went to Sinai Hospital and renewed his request for a bed. None was then available, but a room did become available a little later. The Solomons were notified and Mr. Solomon's brother brought the decedent in. As Dr. Fishel returned from a nearby hospital, he found Mr. Solomon in a wheel chair in the foyer. He was admitted to the hospital at about four o'clock.

At the time of his admission Mr. Solomon still presented something of a diagnostic problem. Since Dr. Fishel was a surgeon, Mr. Solomon was first placed on the surgical service of the hospital. With Mr. Solomon's consent, Dr. Fishel then sought the assistance of a medical doctor experienced in gastro-enterology. The first man whom Dr. Fishel called was about to leave town on an extended trip and suggested several others, among them Dr. Leon E. Kassel, whom Mr. Solomon selected. Drs. Kassel and Fishel had a consultation at once and Dr. Kassel also saw Mr. Solomon privately. The patient told him that Dr. Fishel had recommended hospitalization the day before but that he did not go because of his desire to avoid hospitalization.

When Dr. Kassel entered the case Mr. Solomon was transferred to the medical service of the hospital. Though the primary responsibility under hospital practice then appears to have become Dr. Kassel's, it is customary for medical and surgical men to work together as a team in cases of this sort, and Dr. Fishel does not take the position that he was relieved of responsibility.

In the treatment of bleeding gastro-intestinal ulcers, there are several well recognized methods of treatment. One is merely to use blood transfusions to replace lost blood, to keep the patient out of shock and to give nature a chance to stop the bleeding by forming a clot that will hold. Another is to operate at once. A third is more or less a combination of the first two. This is to test transfusions as a means of stopping the bleeding, to watch the patient closely, and if the transfusions

are not accomplishing the desired result of stopping or at least slowing down the bleeding then to resort to surgery. The use of transfusion tests is generally considered particularly desirable in the case of patients under forty years of age. There seems to be no fixed standard as to the duration of the test period. The decision to operate, if made, is made by the medical and surgical men working together. Prior to such a decision it is customary that the patient be on the medical service. The third method of treatment and the usual practice thereunder were followed in Mr. Solomon's ...

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