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Ginsberg v. St. Michael''s Hospital

June 21, 1996

RUTH GINSBERG, AS EXECUTRIX OF THE ESTATE OF BENJAMIN GINSBERG, AND RUTH GINSBERG, INDIVIDUALLY, PLAINTIFF-APPELLANT,
v.
ST. MICHAEL'S HOSPITAL, DR. HENRY GREEN, DR. TERRENCE TRUITT, DR. JOHN DOE, NURSE JANE DOE, ABC CORPORATION, INTERNATIONAL NURSES AND NURSES AID REGISTRY OF NEW JERSEY, INC. T/A INTERNATIONAL NURSING AGENCY, DEFENDANTS, AND NURSE MARY LEE, RESPONDENT.



Before Judges Keefe, Wefing and A.a. Rodriguez. The opinion of the court was delivered by Keefe, J.A.D.

The opinion of the court was delivered by: Keefe

The opinion of the court was delivered by

KEEFE, J.A.D.

Plaintiff Ruth Ginsberg, as Administratrix of the estate of Benjamin Ginsberg and individually, appeals from a jury verdict in this medical malpractice case in which the jury returned a verdict of no cause as to both defendants, Dr. Terrence Truitt, and Nurse Mary Lee. *fn1

The following issues are raised on appeal:

POINT I THE TRIAL COURT ERRED IN ITS APPLICATION OF THE INCREASED RISK DOCTRINE OF SCAFIDI V. SEILER, 119 N.J. 93, 574 A.2d 398 (1990).

POINT II THE JURY'S VERDICT ON PROXIMATE CAUSE IS INCONSISTENT, AGAINST THE WEIGHT OF THE EVIDENCE AND A MISCARRIAGE OF JUSTICE AND MUST BE SET ASIDE.

POINT III THE TRIAL COURT ERRED IN EXCLUDING THE TESTIMONY OF THE DECEDENT'S TREATING PHYSICIAN AS TO HOW THE OVERDOSE RESULTED IN DEATH.

POINT IV THE TRIAL COURT ERRED IN PERMITTING THE DEFENDANTS TO ARGUE THAT THE FAMILY'S DECISION NOT TO EMPLOY EXTRAORDINARY MEASURES WAS THE CAUSE OF DEATH.

Our review of the record satisfies us that trial error occurred, having the capacity to cause an unjust result. R. 2:10-2. Accordingly, for the reasons stated herein, we remand the matter for a new trial.

On May 30, 1990, Benjamin Ginsberg (Ginsberg), who was ninety years old at the time, experienced weakness and shortness of breath and consulted his personal physician of twenty years, Dr. Henry Green. Dr. Green's diagnosis was congestive heart failure; fluid in the chest cavity that was compressing a lung; kidney failure; arterial sclerosis; and mild diabetes mellitus. Dr. Green arranged for Ginsberg's immediate admission to St. Michael's hospital.

While at St. Michael's it was also found that Ginsburg was hypertensive; had arterial sclerotic heart disease; bronchial pneumonia; Parkinsonism; osteoarthritis with radiculopathy; hypergammaglobulinemia *fn2; anorexia; dyspnea; and swelling of the abdomen and extremities. However, Ginsberg's primary problem was congestive heart failure as a manifestation of heart disease. He had lost more than forty percent of his heart muscle so that his heart was not pumping effectively, and blood was backing up into his lungs.

In the hospital, Ginsberg received various forms of treatment. As pertains to this case, he was given small doses of insulin (approximately four or five units) for diabetes. After about a month in the hospital, Ginsberg's condition had stabilized. He was able to get out of bed and sit in a chair. Dr. Green testified that on or about July 13, his condition was such that he could be discharged from the hospital. Dr. Green and the Ginsbergs began making plans for home nursing care.

On July 13, 1990, defendant Dr. Terrence Truitt, a resident at St. Michael's, ordered that Ginsberg receive four units of insulin. Defendant Nurse Mary Lee misinterpreted the order and incorrectly gave Ginsberg forty units of insulin on July 14, 1990. The type of insulin ordered by Dr. Truitt was time-released and did not take effect immediately. However, over the course of the day, Ginsberg's blood sugar level dropped steadily, reaching life threatening levels. He slipped into a coma, his blood pressure dropped and he went into substantial heart failure.

Dr. Green testified that he saw Ginsberg on the morning of July 14, and at that time Ginsberg was in insulin shock. Ginsberg was in a comatose state; he had impaired movement of his lungs; his blood pressure was dropping; he was not getting enough oxygen; and he had a rapid heart rate. As a result of his condition, Ginsberg was moved to the intensive care unit for further management That day Dr. Green met with plaintiff, and Robert Ginsberg (the Ginsbergs' son) and asked them whether they wanted to employ extraordinary measures in the event of cardiac arrest. The Ginsbergs inquired as to the quality of Ginsberg's life in the event such measures were used, and asked Dr. Green's advice. *fn3 Dr. Green advised against extraordinary measures, and the Ginsbergs accepted that advice. On July 15, 1990, Ginsberg died of cardiac failure.

Plaintiff filed this medical malpractice action as a result of the death of her husband. All named defendants were dismissed from the action except Dr. Truitt and Nurse Lee. The matter proceeded to trial against them. After five days of trial, the jury returned its verdict. In response to special interrogatories, it found that Dr. Truitt did not deviate from accepted standards of care (interrogatory one), but that Nurse Lee had deviated from accepted standards (interrogatory two). In response to interrogatory three, the jury found that Ginsberg's death would not have occurred when it did but for the deviation from accepted standards by Nurse Lee. In response to special interrogatory number four, the jury also found that the deviation increased the risk that Ginsberg would have died on a date earlier than otherwise would have occurred as a result of his pre-existing condition. However, in response to special interrogatory five, and notwithstanding its answer to the "but for" causation question in interrogatory number three, the jury found that the increased risk was not a substantial factor in producing the death of Ginsberg on a date earlier than otherwise would have occurred. Accordingly, a judgment of no cause for action was entered on behalf of both defendants. After plaintiff's motion for a new trial was denied, this appeal was taken.

Dr. Green completed Ginsberg's death certificate and listed the causes of death as cardiac arrest with associated pneumonia and renal failure. He did not list hypoglycemia or insulin overdose as the cause of death. Although Dr. Green testified that the overdose caused a cascade of other events that killed Ginsberg, he was not permitted to explain why the death certificate read as it did or how, in his view, the insulin overdose caused Ginsberg's ultimate demise. That testimony was excluded because, although he had been deposed, Dr. Green had not been listed as an ...


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