Full opinion text
OPINION HERLANDS, District Judge: This case arises out of a series of surgical procedures performed on David Lever, the plaintiff, while he was a patient at the Manhattan Veterans Administration Hospital (MVAH) in 1962. Jurisdiction is based on the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq. (1964), and 28 U.S.C. § 1346 (1964). After trial of the action to the Court, sitting without jury, the Court reserved decision on defendant’s motion to dismiss on the ground that plaintiff failed to prove a cause of action by a fair preponderance of the credible evidence. (Trial Transcript at 779, hereinafter referred to by page number). The Court hereby grants defendant’s motion and orders that the complaint be dismissed with prejudice and that final judgment be entered for defendant, with costs. FACTUAL BACKGROUND OF THE CASE Plaintiff, a veteran, 74 years of age during the period of time relevant to this case, was examined on February 15, 1962 by Nathan Newman, M.D., then a second-year resident at MVAH, in connection with plaintiff’s complaints of urinary frequency. He was instructed to report to MVAH on February 27, 1962, to be admitted as a patient and undergo a urological survey. (Deft.Exh. A at 2 [the MVAH hospital record]). On February 27, 1962, plaintiff was examined by David McKee, M.D. who reported the presence of bilateral direct inguinal hernias and a 15-20 gram benign prostate. (Dept.Exh. A at 3). Aaron Hardy Ulm, M.D., who was Chief of Urology at MVAH during the years 1954-66 (Ulm 8), including the year 1962, gave general background testimony with respect to the physiology of the relevant part of the anatomy and a non-technieal explanation of the medical problem affecting Mr. Lever and the type of operation planned to alleviate his condition. The prostate gland plays a role in the male reproduction process. That is its only known function. It is located at the point where the urethra joins the bladder and completely encircles the urethra. As a person grows older, the prostate gland sometimes becomes the seat of various tumors, and tends to enlarge. Because it surrounds a tube-like structure (urethra), its growth causes a compression of that tube. In turn, the compression of the urethra makes the urinary stream thinner and prevents the complete voiding of the bladder, thus causing urinary frequency. (Ulm 23-24). Two general procedures have been developed to correct this condition. The first (and earlier) method involves an incision into the body — suprapubically, retropubieally, or perineally — and enucleation of the enlarged prostate by the surgeon’s finger. (Ulm 24-25). The other (and more recently developed) method utilizes various surgical instruments which are inserted into the patient’s urethra and bladder through his penis. The instruments used (Deft.Exh. J is an example) include a cystoscope and panendoscope, which are observation instruments of a telescopic nature. The cystoscope gives a right-angle view while the panendoscope gives a straight-forward view. Once these larger instruments (of a tubular shape) are inserted, the Stern-McCarthy operating unit is introduced. This contains another telescopic unit (resectoscope), a light source, and a wire loop. The surgeon looks through the telescope, advances the wire loop to protruding prostatic tissue, catches the tissue in the loop, pulls the loop back and simultaneously introduces an electrical current into the loop which cuts a cylinder of tissue. The process is repeated until the surgeon determines that a sufficient amount of tissue has been resected. The operating instrument also utilizes another electrical current (of a different frequency) through the wire loop to coagulate blood vessels which are transected in the ordinary course of this procedure. This prostatectomy is called a transurethral resection of the prostate and is commonly referred to by doctors as a “TURP”. (Ulm 25-33). Generally speaking, smaller prostate glands are better for the transurethral operation; and, while there is considerable difference of opinion concerning the relative safety of the two described operations, a transurethral resection has the great advantage of avoiding cuts in the body. (Ulm 27). In order to determine which procedure to follow in a specific ease, and whether a particular patient is suitable for a transurethral resection, a preliminary inspection of the area is performed with a cystoscope and panendoscope. (Ulm 26-26). Plaintiff underwent such a cystopanendoscopy on March 1, 1962. This procedure was performed by Dr. Panetta. (Deft.Exh. A at 126). On March 7, 1962 Dr. Nathan Newman performed a transurethral resection of the prostate upon plaintiff, resecting approximately 10 grams of tissue from a gland whose estimated size at the outset of the procedure was 20 grams. (Deft. Exh. A at 128). On March 27, 1962, plaintiff experienced two episodes of bleeding bright red from the penis at approximately 6:40 A.M. At 1:00 P.M., Dr. Martin 111, the third-year resident at MVAH, performed a surgical procedure to evacuate blood clots from the bladder and to discover and control hemorrhage. Dr. Ill evacuated the clots and conducted a fruitless search for a bleeding vessel. He then resected residual tissue on the floor of the prostatic urethra. Blood was observed to be mildly oozing from several areas in the prostatic fossa and especially in the area of the bladder neck which was observed to be undermined. Dr. Ill fulgurated (eleetrocoagulated) these areas and inserted a catheter to continue irrigating and emptying the entire area. Three units of blood were given. (Deft.Exh. A at 132). On March 29, 1962, at approximately 7:40 P.M., plaintiff was observed to have a “gross hematuria” (massive hemorrhage). (Deft.Exh. A at 94). Dr. Newman noted at 7:45 P.M. a massive sudden prostatic and urethral hemorrhage following a bowel movement. (Deft.Exh. A at 111). After various futile attempts at controlling this bleeding, and an estimated blood loss of 500 cc’s in fifteen minutes, plaintiff was brought to the operating room. Plaintiff's blood pressure had dropped to sixty over forty; 1000 cc’s of whole blood were administered and another 500 cc’s were evacuated from his bladder. A cystopanendoscopy was performed at approximately 8:45 P.M. by Dr. Ill, and arterial bleeding was reported. (Id.). After anesthesia was administered, Dr. Ill performed a transurethral electrocoagulation of the bleeding vessels by means of a reseetoscope. The instruments were inserted about 9:10 P.M. and the fulguration was completed at approximately 9:20 P.M. (296). Dr. Ill reported that the bleeding then stopped almost entirely. The fossa was then cleaned of clots and a catheter was left in place. (Deft.Exh. A at 111, 128-29). Thereafter, plaintiff was incontinent. On May 22, 1962 Dr. Ulm, assisted by Drs. Ill and Newman, performed an operation on plaintiff to repair his bilateral direct inguinal hernias and to attempt at curing his incontinence. In the course of this procedure, a bilateral orchiectomy was performed and the spermatic cords were pulled through and posterior to the membraneous urethra, thus forming a cross-sling. The latter procedure was the attempt at incontinence repair. (Deft.Exh. A at 133-34). Plaintiff’s hernia condition was corrected, though his incontinency was not. On October 5, 1962, plaintiff was discharged from MVAH with an unimproved incontinency condition. On July 9, 1963, he was admitted to the Albany Veterans Administration Hospital where he underwent an operation (on July 18, 1963) in another attempt at incontinency cure. The operation involved the implantation of a Berry prosthesis. (Deft.Exh. B at 189 [Albany Veterans Administration Hospital record]). This operation was not successful in curing plaintiff’s incontinency. On March 2, 1967, plaintiff was admitted to Bronx Veterans Administration Hospital; and, on March 27, 1967, the Berry prosthesis implanted in July, 1963 was excised and replaced by a modified Berry prosthesis. (Deft.Exh. E at 355 [Bronx Veterans Administration Hospital record]). This operation likewise did not cure plaintiff’s condition. He is apparently incontinent at this time. (Lever 215). PLAINTIFF’S CONTENTIONS Plaintiff’s contentions, as set forth in the pre-trial order and in his Post-Trial Brief are as follows: (1) Defendant was negligent in permitting Dr. Newman, an inexperienced person, to perform the March 7, 1962 transurethral resection upon plaintiff without close supervision. Dr. Newman performed this procedure with a lack of skill, leaving an excessive amount of tags in the residual prostate tissue, which prevented proper and prompt healing, and caused continued bleeding. (2) Defendant was negligent in permitting Dr. Ill, an unskilled, inept, and not properly trained person to operate upon plaintiff. Moreover, defendant was negligent upon a theory of respondeat superior in that its agent, Dr. Ill, acted contrary to generally accepted medical practice and failed to exercise his best judgment with respect to the surgical procedure of March 27, 1962. More specifically, plaintiff contends that Dr. Ill should have merely controlled the bleeding and should not have resected additional tissue because a second stage prostatectomy — an elective procedure — ■ was contraindicated for a patient suffering from hemorrhage, anemia and fever. As a proximate result of Dr. Ill’s resection of March 27, 1962, plaintiff bled still more, thereby causing the hemorrhaging of March 29,1962. (3) Dr. Ill was negligent with respect to the surgical procedures of March 29, 1962 because, as a result of his inexperience, he mistakenly believed that plaintiff was undergoing massive hemorrhaging in the area of the verumontanum and sphincter, and was thus in a life-or-death situation. Acting on this mistaken belief that plaintiff was in a life-threatening emergency, Dr. Ill wrongly failed to call an experienced member of the attending staff, though there was sufficient time to do so. Moreover, Dr. Ill deliberately destroyed plaintiff’s external sphincter and failed to perform the more advisable and conservative operation to control the bleeding — namely, suprapubic packing of the prostatic fossa —because of the erroneous belief respecting the hemorrhaging. Furthermore, Dr. Ill employed an unskillful and faulty technique in electroeoagulating the blood vessels in that he fulgurated extensively and persistently rather than lightly or not at all. As a proximate result of these errors and acts of malpractice, plaintiff’s sphincter was permanently destroyed, thereby rendering him incontinent. (4) Dr. Ulm was guilty of malpractice with respect to the operation of May 22, 1962 in that he performed a bilateral orchiectomy, though plaintiff’s testicles were healthy. Dr. Ulm also departed from generally accepted medical standards when he performed on plaintiff an operation which was unreported in medical literature and novel and experimental in nature, without having obtained plaintiff’s informed consent. As a result of these acts, plaintiff suffers from mental and physical pain and anguish stemming from the orchiectomy. Moreover, performance of Dr. Ulm’s operation diminished the likelihood of success of the Berry operation performed in July, 1963 at the Albany VA Hospital, and the Berry operation performed in March, 1967 at the Bronx VA Hospital. THE TRIAL TESTIMONY At the trial, plaintiff offered the following testimony: Mr. Lever gave testimony relating to his personal background and his pain and suffering following his discharge from MVAH. He gave no testimony of note with respect to the March, 1962 procedures, but did give his version of the discussions with Dr. Ulm regarding the May, 1962 operation. This latter testimony will be analyzed in greater detail in Part IV(A) infra, wherein the Court discusses the May 22, 1962 operation. Plaintiff then offered the expert testimony of Dr. Leonard Biel. In the middle of his direct examination, plaintiff’s counsel saw fit to attempt to impeach this witness (Biel 324) by confronting him with a report he had sent plaintiff’s counsel with a transmittal letter dated October 20, 1967. (Pltf.Exhs. 11, 12). That report was headed: “Draft of Conclusions After Reviewing the Chart on David Lever While At The New York Veteran’s Administration Hospital in 1962.” He also offered this report (Pltf.Exh. 11) as substantive proof. (Biel 339-40). Plaintiff offered the testimony of Dr. Joseph E. Davis, Jr., who gave expert opinion evidence as to the March 27th procedure (Davis 396), as to the March 29th procedure (Davis 398-99) and the May 22nd procedure. (Davis 399-400). Plaintiff also read parts of Dr. Ill’s deposition into the record as proof of some of his contentions. And, after Dr. Newman testified as a fact witness for defendant, plaintiff examined him as a fact and expert witness on his own behalf. (Newman 501, 513). Finally, plaintiff relies in part on portions of Defendant’s Exhibits A and B —plaintiff’s hospital records while a patient at MVAH and Albany VA Hospital —and proof elicited from defendant’s experts on cross-examination. Defendant offered the expert testimony of Dr. Ulm and Dr. Simon A. Beisler, who was Chief of Urology at Vanderbilt Urological Clinic of the Columbia Presbyterian Medical Center from 1929-1935, and at Roosevelt Hospital from 1938-1966. (Beisler 619-20). In addition, defendant offered the factual testimony of Dr. Newman with respect to certain of plaintiff’s contentions. I. THE MARCH 7, 1962 OPERATION It is not entirely clear that plaintiff still presses his contentions with respect to this operation; his Post-Trial Brief does not analyze any of the evidence bearing on these particular issues. Nevertheless, the Court has considered the evidence with respect to these contentions and concludes that the weight of the credible evidence manifestly requires their rejection. A. Was Dr. Newman Inexperienced? Dr. Newman received his M.D. degree in 1957. (Newman 514). He completed one year’s residency in surgery and a six-months’ pathology residency prior to 1960. During March, 1962, he was near the end of his second year of urology residency at MVAH. (Newman 513). He had been licensed to practice medicine in New York State in 1960. (Newman 514). During his second year of urology residency, Dr. Newman performed between 50 and 75 transurethral operations. (Ulm 92). There is nothing in the record to indicate that Dr. Newman was inexperienced in the performance of transurethral operations. In the absence of such testimony, the Court concludes that Dr. Newman’s background establishes him as an experienced surgeon in March, 1962. B. Did Dr. Newman Perform the March 7th Operation Without Adequate Supervision? Plaintiff presumably relies on the absence of any notation in the report of the March 7th operation indicating that either Dr. Ill or Dr. Ulm was present during this operation by Dr. Newman (Deft.Exh. A at 128), to sustain his claim of inadequate supervision. However, Dr. Ulm’s testimony with respect to the established routine and practice at MVAH in 1962 overcomes any such inference. Dr. Ulm testified that, while he had no independent recollection of being physically present during the March 7th procedure, assuming he had followed the established routine and practice, he would have been present, especially in view of the fact that the operation was performed in the morning and by a second-year resident. (Ulm 52-53). Moreover, Dr. Ulm testified that the general routine and practice followed at MVAH was to have the third-year resident supervise all TURPs performed by a second-year resident and that this supervision was “unvarying”. (Ulm 38; 39; 56). Dr. Ulm then explained in what sense he used the term “supervised”. He also described the routine practice and established procedure with respect to the MVAH process of supervision of trans-urethral prostatectomies performed by second-year residents. The operating surgeon would begin the operation and the senior man looked over his shoulder into the telescopic unit and showed the operating surgeon what to do. The resectionist would cut a bit and would inquire of the supervising doctor as to the appropriate technique to be followed at a particular point. (Ulm 54). The transurethral prostatectomy is an operation where the senior man interrupts the performing surgeon from time to time in order to take a look at the surgeon’s progress. (Id.). While the senior man cannot watch the surgery because the operation is in the depths of the human body, the senior does check the operating surgeon periodically. (Id.). The Court finds such supervision to be proper and adequate. C. Did Dr. Newman Perform the Operation With A Lack of Skill or Otherwise Improperly? There is no evidentiary basis to plaintiff’s contention that Dr. Newman performed the March 7th procedure unskillfully for the asserted reason that he left an excessive amount of tags in the prostate tissue. Nothing in the record indicates that Dr. Newman left tags in the prostate tissue, or, if he did that they were excessive. Dr. Ill testified that he found a substantial part of the prostate remaining when he viewed the area on March 27th. (Ill 585). He had testified that the March 7th operation was designed to remove the entire hypotrophic prostate. (Ill 584-85). Dr. Ill also testified, however, that the failure to remove all of the prostatic tissue was a “very common occurrence” with residents, attending doctors, and well-known urologists. (Ill 609). Further, there is no testimony that what Dr. Ill found were “tags” of tissue. Dr. Ulm gave his opinion, with a reasonable degree of medical certainty, that the operation described on pages 127 and 128 of Defendant’s Exhibit A, performed by Dr. Newman on March 7, 1962, was not a deviation from accepted and established medical standards and procedures. He saw no recorded grounds for criticism. (Ulm 51). Dr. Beisler testified, as well, that, in his opinion, the procedures performed on March 7th were proper and in accordance with accepted medical practice. (Beisler 622). The Court finds and concludes that Dr. Newman performed the March 7th operation in accordance with generally accepted medical practice, with the requisite skill, and under appropriate supervision. II. THE MARCH 27, 1962 OPERATION A. Was Dr. Ill Unskilled, Inept, and Poorly Trained? The record does not sustain plaintiff’s contention that Dr. Ill was unskilled, inept, or poorly trained. Dr. Ill received his M.D. degree in 1955, served his internship from 1955-1956; worked in the field of urology for ten months while in the armed services during the years 1956-1958; served one year assistant surgical residency from 1958-1959; served one year urology residency at Presbyterian Medical Center from 1959-1960; and served two years of urology residency at MVAH from 1960-1962. (Ill 547). Prior to March 27, 1962, Dr. Ill had performed approximately 130 prostatectomies; and about eighty per cent of these were transurethral. (Ill 549). Dr. Ulm testified that, at the time of the March 27, 1962 operation, Dr. Ill had but two months more to complete in his three year urology training, and concuded: “He was a pretty competent surgeon.” (Ulm 121). The urology residency training program at MVAH was under the personal supervision of Dr. Ulm; and it appears from the record that he had obtained approval for the program from the American Medical Association. (Ulm 10-10A). It is also apparent that the residency program at MVAH was deemed proper training for certification by the American Board of Urology (Ulm 10A), as is evidenced by the fact that Dr. Newman is a diplómate. (Newman 514). The Court finds and concludes that Dr. Ill was neither unskilled, inept, or poorly trained. B. Did Dr. Ill Depart From Generally Accepted Medical Practice and Fail to Exercise His Best Judgment During the Procedure of March 27th? The thrust of plaintiff’s contentions that the procedures of March 27th were deviations from generally accepted medical practice is directed to Dr. Ill’s resectioning of additional prostate tissue. He does not claim that Dr. Ill acted contrary to sound medical practice in evacuating the blood clots and irrigating the bladder. 1. Dr. Ill’s Testimony Plaintiff offered considerable portions of Dr. Ill’s deposition in support of his contention of malpractice. Dr. Ill described plaintiff’s condition as poor prior to the operation of March 27th. He noted that plaintiff required transfusion of two units of blood in order to bring his blood pressure up to a level safe enough to administer a spinal anesthetic. (Ill 574). Dr. Ill recalled that the patient was in shock, that he was pale, and that he was complaining from lower abdominal discomfort caused by what proved to be clots in the bladder. (Ill 574). His blood pressure before blood was transfused was seventy-eight over forty and after the transfusion, it rose to ninety over sixty. (Ill 574-75). As noted earlier, plaintiff was observed to have suffered two episodes of bright red bleeding on the morning of March 27th. Dr. Ill, assisted by Dr. Newman, began this operation at 1:00 P.M. After plaintiff’s blood pressure had been raised to normal levels and the spinal anesthesia administered, a resectoscope was introduced with ease. (Deft.Exh. A at 132). Dr. Ill found considerable mild low prostatic tissue remaining. He did not see any express bleeding point though there was a mild ooze from several areas through the prostatie fossa, especially in the area of the undermined bladder neck. He did see a perforation of the urethra one centimeter distance from the external sphincter (Ill 575); but, upon reflection during his deposition, Dr. Ill could not comment further on this finding. (Ill 583). There was no arterial bleeding, however; just the normal ooze following a transurethral resection. (Ill 575; 576;.583). Dr. Ill stated that he knew that the patient had “certainly bled” — three units of blood had been administered between March 7th and March 27th. (Ill 576-77). Still, on endoscoping the patient, Dr. Ill saw no explanation for the bleeding, a circumstance he found “puzzling”. (Ill 577, 583). He stated that the “results of bleeding” were evident, “but not the bleeding itself.” (Ill 583). Dr. Ill performed no electrocoagulation at that time. He explained that none was necessary nor could any be done because the careful search for the bleeding vessel had been in vain. (Ill 576, 586). Dr. Ill then decided to resect the additional prostatic tissue — an operation he had not preoperatively planned to do. (Ill 584). Dr. Ill explained that he did not expect to find any residual tissue, nor, upon discovery, did he expect to re-sect it. However, because he could not find any explanation for the bleeding, he resected the additional tissue. (Id.). When asked by plaintiff’s counsel whether the performance of a second stage resection immediately after a patient is brought out of shock is a departure from general urological practice, Dr. Ill responded: “If this were my intent upon doing the operation, I agree. This was not my intent but in finding what I did at that time decisions have to be made in the treatment of this particular situation, so a standard does not seem to apply because this is a particular case with particular findings. Intent to go into and do a second stage resection * * * is certainly a departure from standard procedure in the presence of hemorrhage, yes, but this was not the intent upon doing it. The intent was purely to control the bleeding. Bleeding was found and an attempt at finding the cause was carried out by the performance of the resection and this was a resection in an area which is seldom followed by such difficulty such as this. This is the safe area. This is an area where blood vessels do not abound.” (Ill 593-94). Plaintiff argues that the foregoing testimony establishes that Dr. Ill sought to excuse his performance of a second-stage transurethral prostatectomy by stating that it was not his “intent” to do so. (Plaintiff’s Post-Trial Brief at 13-14). The Court does not so interpret Dr. Ill’s testimony. As will be more fully explained infra, Dr. Ill’s testimony does not admit malpractice and attempt to “excuse” it. Rather, this testimony, which evidences the purpose for the resectioning, supports the conclusion that Dr. Ill did not depart from generally accepted medical practice. 2. Dr. Davis’ Testimony Plaintiff called Dr. Davis as an expert witness to analyze the facts and render his opinion respecting them. On direct examination, Dr. Davis stated that the operative procedure of March 27th, as described in the doctor’s progress notes for that date (Deft.Exh. A at 110), was clot evacuation and second-stage trans-urethral resection. (Davis 395). He then offered his opinion that the second-stage transurethral resection was contraindicated at that time, which meant “not indicated”. (Davis 396). Dr. Davis also expressed the opinion that the performance of a second-stage transurethral prostatectomy was contrary to standard medical practice. (Davis 397) . The basis for this opinion was that the patient had been running a temperature and was febrile at the time and that the procedure was performed as an emergency measure to stop bleeding. Therefore, this was not an appropriate time to remove more prostatic tissue. (Davis 397). It was Dr. Davis’' testimony that the second-stage prostatectomy was not an emergency procedure, but was elective surgery. (Davis 398) . On cross-examination, however, Dr. Davis testified that, if he found a patient bleeding three weeks after a trans-urethral resection and if the bleeding persisted, he would endoscope the patient, evacuate clots, and look for bleeding points. (Davis 412). He stated he would leave a catheter in the bladder after being assured there was no active bleeding,, (id.), and by that he meant he would watch the irrigating solution to make sure that it was clear, and he would carefully re-examine the prostatic fossa. He further explained that he would make observations every few minutes to see whether he could, by changing the pressure in the irrigating fluid, actually see a bleeder. (Davis 413). Dr. Davis admitted that a bleeder might be under necrotic tissue still in the urethra, and that it would be sound medical practice to try and remove some of that tissue if the bleeding was not observed initially. (Davis 413). He expressly stated that it would be reasonable medical practice, standard urological practice for Dr. Ill to remove additional tissue in order to try and locate bleeding, if there was no intention, when the operation was begun, of removing other tissue. (Davis 413-14). 3. Dr. Biel’s Testimony Dr. Biel testified that the resection of ten grams of tissue (the amount reported in Deft.Exh. A at 132), “when you are looking for bleeding,” was “inadvisable”. (Biel 316). However, he would have to have a laboratory report confirming that ten grams had actually been received in this case, before he could state that the March 27th procedure was contrary to generally accepted medical practice. (Biel 316-17). He did not recall seeing such a report in plaintiff’s medical file. (Biel 317). Dr. Biel explained that the operative report found in Defendant’s Exhibit A at page 132 was prepared by a resident, and that a surgeon often thinks he has resected a great deal more than he actually has. (Biel 319). Moreover, some tissue resection — and Dr. Biel emphasized the word “some”— may be advisable if the surgeon believes it to be “necrotic tissue” (tissue destoryed by electrocoagulation) and thought it might “sluff and disappear.” In general, though, “you don’t resect any more than you absolutely have to.” (Biel 317). Plaintiff also relies on Plaintiff’s Exhibit 11, a Draft of Conclusions prepared by Dr. Biel after reviewing plaintiff’s hospital records. It contains the following language: “There is another suggestion in the EBT [deposition], by Dr. Ill, that in the second procedure [March 27th] when he was unable to find a bleeding point, he resected additional tissue, looking for one. This is tantamount to saying that if you look at one’s hand and you don’t see any bleeding, you should make some cuts to see if you can find bleeding. It is obvious that further cutting will lead to further bleeding. The patient who was returned for the second time to the operating room because of hemorrhage should not have been subjected to what is characterized both in the doctor’s notes and in the operative reports as a second stage transurethral resection. The operator states that he removed approximately 10 grams of tissue and in no circumstances can the removal of this amount of tissue be characterized as anything but a trans-urethral resection.” Dr. Biel testified that Plaintiff’s Exhibit 11 was “perhaps written in haste, written off the top of my head.” (Biel 336). It was subject to further study and revision. (Id.). He indicated that he no longer wished Plaintiff’s Exhibit 11 to represent his professional conclusions. (Biel 337). Dr. Biel also testified, on cross-examination, that in attempting to stop hemorrhaging and bleeding additional resection might be done. (Biel 348). Defendant’s Exhibit A at 47 is the pathology report for the tissue removed by Dr. Ill on March 27th. It reports that approximately 30 irregular prostatic chips, the largest measuring 2.5 x 0.8 x 0.5 cm. were received. Several of these fragments were lined with necrotic membranes. The report does not otherwise indicate the amount of tissue received. U. Dr. Beisler’s Testimony Dr. Beisler, one of defendant’s experts, gave emphatic, impressive, and convincing testimony on the issue of whether the March 27th procedure was a departure from generally accepted medical practices. He observed that Dr. Ill found no apparent bleeding to account for the degree of bleeding Mr. Lever had shown. Not having found any bleeding during his examination, Dr. Beisler believed that Dr. Ill “would have been open to criticism if he had not resected the residual middle lobe tissue and some of the necrotic tissue, thereby hoping, one, either to seal off any bleeding area that might have been hidden from view, or to bring that area of bleeding which was hidden from view, into view.” (Beisler 623). Dr. Beisler also testified that Dr. Ill apparently saw nothing after that. (Id.). He explained that, very frequently, although a patient bleeds badly and has a bladder full of clots, once the clots are removed and the surgeon completely inspects the area, he will not find any bleeding. A catheter is then inserted and the patient does not bleed thereafer. (Beisler 623-24). On cross-examination, Dr. Beisler further elucidated the matter. Plaintiff’s counsel attempted to paraphrase Dr. Beisler’s previously mentioned testimony as follows: “You said that with respect to the operation of March 27th that in eight out of ten cases of hemorrhage you put in a catheter and the bleeding stops.” (Beisler 659). Dr. Beisler denied that that was his testimony. He then stated: “I said you put in a resectoseope, evacuate the clots, look around, see no bleeding, and after careful inspection you see no bleeding, you remove the resectoscope, put in a catheter for a couple of days and there is no further bleeding.” (Id.). Apparently, Dr. Beisler was attempting to emphasize that the operating surgeon must make a great effort at trying to locate the bleeding, and that the process of “careful inspection” may often require additional resection in order to uncover bleeding vessels. Dr. Beisler expressed the opinion that the procedures of March 27th were proper and in accordance with accepted medical practice (Beisler 624). He did testify, however, that a second-stage trans-urethral resection was performed on March 27th, and that shock, a febrile condition, and anemia were general contraindications to a second-stage prostatectomy until they are rectified. (Beisler 660-61). 5. Dr. Newman’s Testimony Dr. Newman, in the course of his direct examination by plaintiff (after plaintiff had made Dr. Newman his witness), gave his opinion that a second-stage transurethral prostatectomy was not performed on March 27th, and that the hospital record (Deft. Exh. A at 132) which had so labelled the operation, was in error. (Newman 521-22). He also gave his opinion that, had a second stage operation been performed on Mr. Lever, one which was not planned preoperatively, it would not have been a departure from generally accepted medical practice. (Newman 522). Dr. Newman had stated in his pre-trial "deposition that it would not have been proper to go beyond the planned operation because the “ ‘purpose of the operation was to find the bleeding and correct it, no more.’ ” (Newman 523). 6. Dr. Ulm’s Testimony Dr. Ulm gave illuminating testimony on the question of additional resection, and convincingly explained why no inference of malpractice should be drawn from the presence of the term “second-stage transurethral prostatectomy” on page 132 of Defendant’s Exhibit A. Dr. Ulm testified that a second-stage trans-urethral prostatectomy, as is ordinarily understood by use of the term, was not performed on March 27th. That term was employed for purposes of clarification to other doctors. A second-stage transurethral prostatectomy means “that you go back to do an elective procedure, a scheduled procedure, where the first has been inadequate. This is not what that [the operation of March 27th] was.” (Ulm 122). Plainly, it was Dr. Ulm’s testimony that because the surgery performed on March 27th was not scheduled or elective in nature, it cannot be accurately designated as being a “second stage” prostatectomy. That phrase was employed in Defendant’s Exhibit A at 132 only to indicate that additional resection had been done “secondary” to the clot evacuation. (Ulm 122). It appears that the various witnesses interpret the phrase “second stage trans-urethral prostatectomy” differently. Thus, unless the Court gives content to the phrase by interpolating the meaning ascribed to the term by the witnesses, the significance of the expert testimony which is premised on the presence of that term in the operative report, cannot be accurately gauged. The Court has so analyzed the testimony and views the evidence as establishing that additional transurethral resectioning, if not excessive in amount, when performed on a patient in a febrile, anemic, and recently hemorrhaging condition, is not improper where the procedure was not scheduled or planned, and was performed solely in an attempt at locating the source of bleeding and stopping hemorrhaging. 7. Conclusions The Court finds and concludes that the resection of prostate tissue by Dr. Ill on March 27th was not planned or scheduled preoperatively; that it was done solely for the purpose of trying to locate the source of Mr. Lever’s hemorrhaging; that resection of prostate tissue in an attempt to locate the source of hemorrhage was in accordance with sound medical practice; that plaintiff has failed to prove by a preponderance of the credible evidence that the quantity of tissue resected by Dr. Ill in an attempt to locate the source of hemorrhaging was so excessive as to be contrary to generally accepted medical practice; and that the decision to resect additional tissue, and the quantity of tissue actually resected by Dr. Ill on March 27th were matters requiring the exercise of professional judgment, which judgment was not exercised by Dr. Ill on March 27th in a manner contrary to generally accepted medical practice. Neither Dr. Ill nor defendant was guilty of malpractice either with respect to the surgical procedures performed on plaintiff March 27, 1962, or with respect to the duty of care owed to plaintiff up to and including March 27, 1962. III. THE MARCH 29, 1962 OPERATION In order to evaluate more precisely the expert testimony regarding the March 29th procedures, the Court will make additional and more detailed findings of fact. Plaintiff had a quiet, uneventful day. The drainage from the catheter was clear, yellow urine at 3:00 A.M. (Deft. Exh. A at 94). Following a normal bowel movement, plaintiff was observed to be hemorrhaging at 7:40 P.M. An attempt was made to stop the bleeding by means of a power syringe irrigation and evacuation. This failed. So did the attempt by means of traction on a 30 cc. Foley balloon catheter, and the attempt made by digital compression of the prostate against the catheter through the rectum. The blood loss was estimated at 500 cc. in fifteen minutes. (Deft. Exh. A at 111; Ill 601-02). A catheter was inserted and, at the same time, blood was rapidly transfused. (Ill 596). At 8:05 P.M., plaintiff was brought to the operating room (Deft. Exh. A at 111). At 8:15 P.M. plaintiff’s blood pressure was noted as sixty over forty and the bleeding was continuing. Whole blood was evacuated from the bladder with a Toomey syringe (Id.). Plaintiff was in shock, which meant that his blood pressure was low; and he had a rapid pulse. (Biel 306). Dr. Ill then decided to perform a cystopanendoscopy. At 8:45 P.M., Dr. Newman reported visualizing a large arterial vessel bleeding in the area of the verumontanum just proximal (on the side nearer to the panendoscope located at the bladder neck) to the external sphincter. (Deft. Exh. A at 111). Dr. Ill reported seeing “two weakly pumping blood vessels just inside the external sphincter.” (Deft. Exh. A at 130). He testified that he saw the same thing as Dr. Newman but that the two doctors evaluated the extent of the bleeding differently. (Ill 596-97). The patient’s blood pressure by now had been brought up to 110 systolic. The decision was therefore made to administer a spinal anesthesia to plaintiff. (Deft. Exh. A at 130; Ill 597). Upon placing plaintiff in a sitting position to receive the anesthesia, however, blood was seen to spurt from the urethra. (Deft. Exh. A at 130; Ill 599). That this was fresh blood is apparent from the circumstance that the bladder had previously been cleaned of all clots and had contained no blood, (id.), and the further circumstance that fresh clots were reported evacuated from the bladder by means of a resectoscope after the spinal anesthesia was administered while plaintiff was supine and on his left side. (Deft. Exh. A at 129). After the patient was anesthetized and the fresh clots evacuated, at approximately 9:10 P.M., plaintiff was again observed, this time through the resectoscope. (Deft. Exh. A at 111). A resectoscope offers the surgeon a better view of the area than does the panendoscope. (Ill 597). Panendoscopic viewing does not give the surgeon a good picture of the bleeding. If it is arterial bleeding, the surgeon seldom sees the arteries. (Ill 598). Upon viewing the area with the resectoscope, Dr. Newman reported finding a large arterial pumper on the floor of the prostate between the verumontanum and the external sphincter. (Deft. Exh. A at 111). Dr. Ill apparently saw the bleeding at the same area as Dr. Newman and again it was his evaluation that there were two bleeding blood vesseis. (Deft. Exh. A at 129, 130). Dr. Ill then decided to electrocoagulate the bleeding vessels; and he fulgurated them “extensively”. (Deft. Exh. A at 129). He also lightly fulgurated several other areas of mild ooze in the prostatic fossa. (Id,.). The bleeding ceased almost entirely. A catheter was inserted and another unit of whole blood was transfused. Plaintiff was taken from the operating room in good condition. (Id.). There is no proof in the record that Dr. Newman’s report of approximately 2000 cc. of lost blood on the evening of March 29th (Deft. Exh. A at 111) was in error. In the absence of any such proof, the Court accepts this statement as fact and also finds that such blood loss was considerable. (Davis 418). A. Was Plaintiff in an Emergency Situation on March 29th? Plaintiff contends that Dr. Ill failed to seek assistance from an attending physician and extensively fulgurated the area between the verumontanum and external sphincter upon the mistaken belief that plaintiff was bleeding massively from that area and was in a life-threatening situation. The theory of liability is apparently posited on the premise that plaintiff was not in fact in such an emergency condition and, therefore, that procedures which presented less of a threat to the external sphincter should have been employed. The record, taken as a whole, however, does not support plaintiff’s contention that Dr. Ill was mistaken as to the magnitude of the bleeding and the seriousness of plaintiff’s condition. Dr. Davis, the only witness who testified specifically with respect to the possibility of mistaken diagnosis (this contention was not set forth in the PreTrial Order and thus was not the subject of extensive inquiry at trial), stated, on cross-examination, that he had reason to believe that the bleeding had not, in fact, been near the external sphincter as Drs. Ill and Newman had reported, because it was difficult for him to conceive of such massive bleeding from the arteries in the area. (Davis 439-40). On redirect, he amplified his opinion. The external sphincter, he explained, is relatively avascular in comparison to the remainder of the prostatic urethra. Therefore, in his opinion, bleeding at this point could not .cause hemorrhage in the amount of 1000-2000 cc. of blood. (Davis 456). He believed that the doctor who reported that the bleeding vessels were in the area of the external sphincter thus mistakenly judged the bleeding to be coming from that point. (Davis 456-57). There are only small arteries between the verumontanum and the external sphincter, and the maximum blood loss from this area, in ten minutes, would be between 100-200 cc. of blood. (Davis 457). The Court was generally unimpressed with Dr. Davis’ testimony. It was said to be based on his experience and observations as a reseetionist. (Davis 440). But he admitted having no recent experience in the emergency control of hemorrhage. (Davis 421). The Court is unwilling to accept his testimony as the sole predicate for a finding that Drs. Ill and Newman, who were physically present at the operation, mistakenly judged that there was massive hemorrhaging from the area of the verumontanum and external sphincter, and that their written report of the procedure and progress notes were similarly erroneous. In any event, Dr. Davis’ testimony does not convincingly establish that plaintiff was not in an emergency situation on March 29th. A close reading of his testimony indicates only that Dr. Davis was of the opinion that the bleeding was not coming from the area of the sphincter. He stated that very often, there may appear to be bleeding from a particular point but, because of the size of the prostatic fossa, there could be bleeding from other points. (Davis 423). At no time was he ever asked whether, in his opinion, Dr. Ill and Dr. Newman mistakenly reported the volume of blood loss; and there is nothing in his testimony which supports an inference that such was his opinion. Thus, Dr. Davis’ testimony, even if fully accepted and even if all legitimate inferences stemming therefrom were drawn, establishes only that Dr. Ill mistook the precise location of the bleeding. However, assuming the Court made such finding of fact, liability does not necessarily follow. The Court has already found that plaintiff lost approximately 2000 ce. of blood and that this was considerable. Since loss of this quantity of blood apparently would be a principal cause of life-threatening emergency (see infra pp. 893-894), the mere error (if any) in location does not necessarily mean that plaintiff’s life was not in danger. Moreover, the Court finds that the use of fulguration as an emergency procedure was in accordance with sound medical practice (see Part III.C of this opinion), and that the fulguration was skillfully performed. (See Part III.D of this opinion). Since the unrefuted evidence is that Dr. Ill applied electrocoagulating current to the area where he observed the bleeding (Deft. Exh. A at 129), the suppositious mistaken diagnosis of the source of bleeding did not result in harm to plaintiff because it then must also be assumed that the fulguration was not done in the area of the external sphincter. Quite apart from Dr. Davis’ testimony, the record manifestly supports the conclusion that plaintiff was in a life-threatening situation on March 29th, and that a principal cause of the emergency was the significant loss of blood. Dr. Ulm testified that the operation performed on March 29th was “certainly” life-saving, apparently basing his opinion on the volume of blood lost, as reported in Defendant’s Exhibit A. (Ulm 151). Moreover, plaintiff had a very low blood pressure at the time bleeding was discovered and was in shock. “That is pretty dangerous in a 74 year old man.” (Ulm 125). Dr. Biel testified that the March 29th procedure would have to be characterized as “life-saving” because the “patient went into shock and they were pouring blood into him.” (Biel 347). He also testified that, although the patient’s blood pressure was at 110 systolic and in a satisfactory condition for the administration of anesthesia, he was “still bleeding and therefore his life was still in danger.” (Biel 354-55). Dr. Beisler, too, expressed his opinion that the March 29th operation was a life-saving one. (Beisler 628). On cross-examination he was repeatedly asked whether plaintiff was out of danger after the bleeding vessels were observed and before the anesthesia was administered. (Beisler 661-65). A fair reading of the cross-examination and Dr. Beisler’s answers discloses that Dr. Beisler’s testimony was only that plaintiff’s blood pressure had been raised to a level where neither the administration of anesthesia nor the operation itself would be dangerous to Mr. Lever. Dr. Beisler did not testify that, when the anesthesia was administered, Mr. Lever was no longer in danger of dying from continued loss of blood. On redirect, Dr. Beisler clarified the issue and testified that, when he stated that Mr. Lever was out of danger, he was referring to “danger” resulting from the transurethral fulguration to control the bleeding and from receiving anesthesia, — he “didn’t mean that the patient was in good enough condition to undergo any open surgery, packing or otherwise, because he was still bleeding * * *” (Beisler 762). Nor does plaintiff’s reference to Plaintiff’s Exhibit 11 (Dr. Biel’s Draft of Conclusions) furnish support for his contention that there was no life-threatening situation on March 29th. Dr. Biel was referring to the adequacy of time to perform the packing procedure, and not to the seriousness or dangerousness of plaintiff’s condition. B. Did Dr. Ill Depart From Sound Medical Practice in Failing to Seek Assistance? Though the record is confusing on these factual questions, the Court concludes that neither Dr. Ulm nor any other member of the attending staff at MVAH was present in the operating room during the operation of March 29th, and that neither Dr. Ill nor Dr. Newman, either personally or through a member of the nursing staff, attempted to seek assistance from more experienced hospital personnel. Dr. Ill testified initially that he did not know whether he or Dr. Newman called Dr. Ulm with respect to this particular problem. (Ill 510). Upon further questioning, however, he admitted that he made no attempt to get Dr. Ulm because there was insufficient time. (Ill 511). Dr. Ulm’s statement that he was present during the operation of March 29th (Ulm 119) was apparently based on his normal routine and practice in being present in the hospital, and not upon specific recollection. (Ulm 119-20). Dr. Ulm’s testimony in this particular respect is implausible because the only established routine and practice that he alluded to was his presence in the hospital during the morning and afternoon (Ulm 120); the procedure of March 29th was performed in the evening. Having concluded that Dr. Ill in fact made no effort to obtain advice on March 29th, the Court now takes under consideration the question whether such failure was a departure from generally accepted medical practice. Dr. Newman testified that, during the period when the various operations were performed on plaintiff, attending physicians were physically present in the hospital at all times, no more than fifteen minutes distance from the operating room. (Newman 501-02). The hospital records disclose that about one hour and thirty-five minutes elapsed from the onset of bleeding until the electrocoagulation. (Biel 296). Dr. Ill admitted that the hemorrhaging of March 29th was quite a surprise to him. (Ill 606-07). Mr. Lever’s case was not standard. (Ill 607). Post-operative hemorrhaging is unusual (id.), as was the location of plaintiff’s hemorrhage at the verumontanum rather than at the internal sphincter or ceiling of the bladder neck. (Ill 607-08). Dr. Ill testified that he never had seen post-operative hemorrhage from this area. The Court concludes that, under the foregoing circumstances, the weight of the credible evidence establishes that it was a departure from sound medical practice to have failed to make any effort to seek help by any means. Dr. Ulm described the general practice at MVAH with respect to seeking aid in the performance of a transurethral prostatectomy. (Ulm 92-93). He stated that the residents could make any decision that they thought was correct but that, if they had any hesitation about the decision, they were to call him, at any time. Dr. Ulm stated that he thus hoped to give residents experience in making decisions but that, where they were unfamiliar with the consequence of a decision or a choice between two alternatives, they were to seek his aid. (Ulm 93). Dr. Biel also testified as to the general practice at MVAH regarding seeking consultations, based on his experience as a member of the attending staff at MVAH. He stated that it was Dr. Ulm’s rule that the resident was obliged to notify an attending physician when the patient was in a life-or-death situation' (Biel 351), and under generally accepted urological standards an attending physician should have been notified when the patient was in a life-or-death situation. (Biel 352). Dr. Beisler testified that, if residents have a problem or are in doubt about a procedure, they usually consult with members of the staff. (Beisler 670). If there was an extreme emergency, the resident must act on his own, however, without consulting or taking time to get in touch with one of the attending physicians. (Beisler 671). It was his belief that, if Dr. Ill had any questions or doubt in his mind, he would have consulted one of the attending doctors. (Beisler 673). While there is no testimony regarding ■whether Dr. Ill was in doubt with respect to the procedures of March 29th, the Court is of the opinion that Dr. Ill was required to make an attempt to seek advice because he was confronted by a patient in a dangerous condition. The Court inquired whether sound medical practice requires a surgeon who finds himself in an unanticipated situation involving grave risk for the patient to discontinue what he is doing and to seek the advice of a senior physician. In response to the Court’s question, Dr. Beisler replied that it would be wrong for the surgeon to stop and take time to get advice from a more senior physician. (Beisler 713-14). However, he later explained that the best medical judgment requires a doctor to try and locate assistance (Beisler 714-15; 763), assuming the surgeon does not leave the patient’s side and utilizes the nursing staff. Dr. Beisler also made clear that it was his opinion that the surgeon is required only to try and locate aid, and that if he does not succeed in a reasonable period of time, the surgeon is then required to use his own judgment. (Beisler 715, 763). Dr. Ill’s failure to seek advice, as plaintiff himself observes (Post-Trial Brief at 61), renders defendant liable only if Dr. Ill then failed to perform the procedures with adequate skill and training or otherwise acted contrary to generally accepted medical practice. C. Did Dr. Ill Depart From Generally Accepted Medical Practice or Fail to Exercise His Best Judgment in Performing the Electrocoagulation of March 29th? Plaintiff claims that Dr. Ill departed from generally accepted medical practice and failed to exercise his best judgment when he proceeded to electrocoagulate the bleeding vessels in the area of the external sphincter. Dr. Davis, plaintiff’s expert, testified that suprapubic packing of the prostatic fossa was the only remaining alternative procedure to fulguration that Dr. Ill could have employed to stop the bleeding on March 29th. (Davis 419). It is plaintiff’s contention that Dr. Ill should have used suprapubic packing rather than fulguration because it is assertedly the more conservative choice since it does not involve risk of damage to the external sphincter. 1(a). Dr. Davis’ Testimony Considered Plaintiff relies primarily on the expert testimony of Dr. Davis. On direct examination, plaintiff did not even question Dr. Davis with reference to this issue. The matter was first raised on cross-examination and pursued further on redirect. It was Dr. Davis’ expert opinion that it was contrary to good medical judgment for Dr. Ill to attempt to fulgurate the external sphincter and that proper treatment would include suprapubic packing of the bladder. (Davis 425). Previously he had testified that, generally, if the exact location of bleeding points were determined, and if he were sure that fulguration would, in fact, control the bleeding, he would fulgurate and thus shorten the procedure. (Davis 422-23). Whether it is a question of judgment to fulgurate or attempt to control the bleeding suprapubically, in Dr. Davis’ opinion, would depend on the location of the bleeding. (Davis 423). He has never seen an indication for fulguration at the external sphincter. (Davis 423-24). He testified that it would be contrary to proper medical practice, in an attempt to save the life of the patient, once the bleeding was clearly located in the area of the sphincter, to fulgurate in that area. (Davis 434). In amplification of his opinion, Dr. Davis stated that while he would be hesitant from a clinical point of view (considering that the patient was febrile, anemic, and had had a second episode of hemorrhaging within two days) to endoscope the patient on March 29th, this much of the procedure performed by Dr. Ill was not contrary to proper medical procedures. However, as relating specifically to fulgurating extensively at the external sphincter, he testified that the procedure employed by Dr. Ill was contrary to proper medical practice. (Davis 437-39). If there was severe bleeding in the area of the verumontanum and external sphincter, it was his opinion that fulguration in the area would have been contrary to accepted medical practice because of plaintiff’s general clinical situation, his course, and the fact that control of hemorrhage by suprapubic packing is simpler and provides less chance of causing incontinence. (Davis 440-41). Dr. Davis then testified, however, that the choice of surgical procedure is a decision to be made by the doctor who was actually present at the time on the basis of his experience. A doctor who was not present at that time cannot say that what was then done and that the exercise of judgment by the doctor then present, who was familiar with the case, was .contrary to proper medical practice. (Davis 441-42). On redirect, Dr. Davis was asked whether, considering the area where plaintiff was fulgurated, and considering the conservative alternatives, there was room for Dr. Ill to fulgurate in the area of the external sphincter without first exhausting the other, more conservative, alternatives. He answered affirmatively. (Davis 458). Dr Davis reiterated that the more conservative procedure would have been suprapubic packing. (Id.). However, it is a matter of judgment — particularly with an instrument as complex as that used, considering an area as small as the prostatic fossa, entailing an operation that most urologists consider the most difficult that they can perform — to decide when there has been “sufficient hemorrhage or recurrent hemorrhage to decide on other more conservative means of stopping the bleeding.” (Davis 459). Taking into consideration the patient’s entire clinical course, his post-operative hemorrhaging, his major episode of bleeding two days previously, his febrile course, his profound anemia, Dr. Davis was of the opinion that the conservative treatment of choice would have been to pack suprapubically rather than to attempt a third major instrumentation and fulgurate. “This is where the judgment comes in.” (Davis 464). He then agreed that using a procedure which involves possible damage to the sphincter when a choice such as supra-pubic packing is open would be a departure from accepted medical practice. (Davis 465). On recross, Dr. Davis stated that the entire procedure would be proper if, in the judgment of the doctor performing it, the procedure chosen would be acceptable. (Davis 467-68). However, upon being asked whether this meant that there is room for the exercise of judgment, Dr. Davis replied that with regard to the specific use of this procedure on a general basis, there is room for judgment; but that in this particular case, there is no such room, (Davis 468), and that the doctor who executed the operation performed in this case, consequently, acted improperly. (Davis 469-70). This statement was based on the fact that the patient was rendered incontinent as a result of the fulguration of the external sphincter. (Davis 471). 1(b). Dr. Davis’ Testimony Evaluated Dr. Davis, as noted above (see Part III.A of this opinion), did not impress the Court as a persuasive or convincing witness. His testimony, as above illustrated, was often internally inconsistent and vascillated between direct, cross, redirect and recross examination. He spent but two and one-half hours reviewing the MV AH hospital record (Davis 448-49) on the day prior to his testifying. (Davis 405). Dr. Davis offered two distinct grounds of support for his opinion that the electrocoagulation in this case was contrary to good medical practice. The first was “any standard textbook of urology.” (Davis 425). When shown Defendant’s Exhibit M for identification, a book entitled Surgery of the Prostate by Henry M. Weyrauch, M.D., Dr. Davis recognized the book as a standard textbook. (Id.). He thereafter proceeded to read into the record quotations from the book which, in his opinion, supported his statement. (Davis 427-29; 431-32). However, he then admitted that nothing he quoted indicated anything about hemorrhage (Davis 433). The Court’s own careful study of the quoted language convinces the Court that the quotations from Weyrauch have no relevance to the question of whether Dr. Ill acted contrary to generally accepted medical practice. The second ground of support for Dr. Davis’ testimony was the fact that plaintiff was rendered incontinent as a result of the fulguration. The significance of this fact as authority for Dr. Davis’ opinion is greatly attenuated because Dr. Davis himself testified that he disagreed with the following statement in Weyrauch (plaintiff’s Exhibit 2): “Urinary incontinence and sexual impotence do not follow [transurethral prostatectomy] unless gross errors are made.” (Davis 443). Yet, unless it was Dr. Davis’ opinion that incontinence occurs only if the surgeon errs, a conclusion that the procedure employed was contrary to generally accepted medical practice based on the fact of incontinence, in the Court’s view, is not well-grounded. Nor did D