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Gilmartin v. Weinreb

August 27, 1999

ANNETTE GILMARTIN, EXECUTRIX OF THE ESTATE OF BRIAN GILMARTIN, AND ANNETTE GILMARTIN, INDIVIDUALLY, PLAINTIFF-APPELLANT/CROSS-RESPONDENT,
V.
HERMAN J. WEINREB, M.D., DEFENDANT-RESPONDENT/CROSS-APPELLANT,
AND
JEFFREY S. WEINSTEIN, D.O., S. ALAN WEINSTEIN, D.O., AND OLD BRIDGE MEDICAL ASSOCIATES, DEFENDANTS.



Before Judges D'Annunzio, Cuff and Collester

The opinion of the court was delivered by: D'annunzio, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued April 26, 1999

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County.

The opinion of the court was delivered by

Plaintiff appeals from a judgment based on an adverse jury verdict in this medical negligence case. On April 12, 1993, Brian Gilmartin, then thirty-four, died due to an overdose of the drug colchicine. Colchicine therapy had been prescribed by defendant, Dr. Herman J. Weinreb, as a treatment for decedent's multiple sclerosis (MS). Dr. Weinreb's office was located in New York City, but the Gilmartins, Brian and his wife Annette, the plaintiff herein, lived in Monmouth County, New Jersey. For the Gilmartins' convenience, beginning in April 1992, Brian's weekly injections of colchicine were administered by Old Bridge Medical Associates (Old Bridge), a New Jersey medical group which included Dr. S. Alan Weinstein and his son, Dr. Jeffrey W. Weinstein. Old Bridge's physicians administered the drug to Brian every Saturday morning. Although Dr. Weinreb had recommended Dr. Menosh, a New Jersey physician experienced in the use of colchicine to treat MS, the Gilmartins selected Old Bridge because the Weinsteins had treated Mrs. Gilmartin and her family.

Colchicine is toxic when administered in greater than recommended doses, but when administered in nontoxic doses it alleviates some symptoms of MS. Defendant prescribed a weekly dose of 4 milligrams (4 mg), which is the maximum recommended weekly dose. In 1992 Eli Lilly & Company (Lilly), the only manufacturer of liquid colchicine, supplied it in ampules containing 0.5 mg per cc (a "cc" equals a milliliter). This translates into a concentration of 1 milligram (1mg) per every 2 milliliters (2 ml). Thus, Gilmartin's prescription required the injection of 8 ml (8 cc's) of colchicine.

In April 1993, the Gilmartins informed Dr. Weinreb that Old Bridge was having difficulty obtaining colchicine in liquid form. Apparently, Lilly had terminated the manufacture of colchicine for intravenous administration. To accommodate the Gilmartins, defendant had a batch of liquid colchicine prepared by a pharmaceutical laboratory in Colorado. Defendant instructed the pharmacy to (a) prepare the colchicine in a new concentration of 2 mg per 1 ml, which was four times greater than the old concentration of 0.5 mg per 1 ml, and (b) package the colchicine in 30 cc vials, each containing 25 cc's of colchicine.

Upon receipt of these vials, defendant, on April 3, 1993, mailed one vial to Brian, along with a letter that said:

Enclosed is the intravenous colchicine prepared by the pharmacist.

PLEASE NOTE THIS IS 2MG PER ML. IT IS HIGHER CONCENTRATION THAN YOU HAVE BEEN TAKING.

The MAXIMUM DOSE PER INJECTION IS 4 MG OR 2 ML.

Please give this to your doctor.

At 9:30 a.m. on April 10, 1993, Brian arrived at Old Bridge's office for his weekly colchicine injection, and delivered the vial and letter. Martha Schikschneit, a medical assistant, prepared Gilmartin's medication in a syringe with a 10 cc capacity, and Dr. S. Alan Weinstein injected it.

By 3:00 p.m. on April 10, 1993, Brian began to feel ill. At 4:30 p.m. on Monday, April 12, 1993, he suddenly stopped breathing, and he was pronounced dead at his home at 4:50 p.m. The cause of death was multi-organ dysfunction due to the toxic effects of colchicine. The evidence leads to the irresistible Conclusion that Weinstein had injected Brian with at least 4 ml (8 mg) of colchicine, 2 times the prescribed dose, and perhaps as much as 8 ml (16 mg), which would have been 4 times the maximum safe dosage.

In her complaint, plaintiff, Annette Gilmartin, Brian's wife, alleged negligence by Old Bridge and the Weinsteins for giving Brian a toxic overdose of colchicine on April 10, 1993, and for not disclosing the overdose to defendant, Dr. Weinreb, when he telephoned Jeffrey Weinstein on the morning of April 12, 1993. Plaintiff alleged negligence by Dr. Weinreb for not recommending the immediate hospitalization of Brian after plaintiff informed him of Brian's symptoms by telephone on the morning of April 12, 1993.

During the trial, the Weinsteins settled with plaintiff. Following this settlement, plaintiff pressed a claim of lack of informed consent against defendant, alleging that he never had informed Brian of the risks of a colchicine overdose.

The jurors answered "no" (8-0) to verdict sheet question 1:

RE: INFORMED CONSENT

1. Did the Plaintiff prove by a preponderance of the credible evidence that Dr. Weinreb failed to give any warning regarding the IV Administration of Colchicine?

YES___ NO___

Vote___

If "Yes" to Question No.1, proceed to Question No.2. If "No" you have determined Dr. Weinreb was not responsible under the theory of liability. Go to Question No.4

The jurors answered "no" (6-2) to verdict sheet question 4:

RE: NEGLIGENCE 4. Did the Defendant Dr. Weinreb deviate from accepted standards of medical practice in his care of Brian Gilmartin in failing to hospitalize or monitor him on Monday, April 12, 1993?

YES___ NO___

Vote___

If your answers are "No" to Questions No.1,2,3 and also Question No.4. Return your verdict.

Plaintiff filed no motion for a new trial. On April 13, 1998, the Judge entered a judgment in favor of defendant.

Informed Consent

Plaintiff contends the trial court erred in several respects regarding the informed consent claim. Arguably, plaintiff's contentions are valid. We do not reach them, however, because we conclude that a physician has no duty to inform a patient of the risk of negligent treatment. *fn1 Therefore, the trial court should not have submitted an informed consent issue to the jury.

In Largey v. Rothman, 110 N.J. 204 (1988), our Supreme Court, relying on Canterbury v. Spence, 464 F.2d 772 (D.C. Cir.), cert. denied, 409 U.S. 1064, 93 S. Ct. 560, 34 L. Ed. 2d 518 (1972), reformulated the elements of a medical negligence action based on the lack of informed consent. Under Largey, plaintiff must establish that the risk of the injury which plaintiff claims to have sustained as a result of medical treatment would have influenced a prudent patient in reaching a decision on whether to undergo the treatment. If so, then the physician deviated from informed consent standards if the physician had not advised plaintiff of that risk. Id. at 212-14. Additionally, plaintiff must establish causation. Causation is established if a prudent person in the patient's position would have declined treatment if he had been informed adequately of the risk that resulted in harm. Largey, supra, 110 N.J. at 216.

As explained in Canterbury, supra, 464 F.2d 772, the physician must only disclose the "inherent and potential hazards of the proposed treatment." Id. at 787. In addition, the "unrevealed risk that should have been made known must materialize," the "[o]ccurrence of the risk must be harmful to the patient," and a causal connection must exist between the physician's failure to disclose "risks incidental to [the] treatment" and the patient's injury, and does so exist only when disclosure of the "inherent ...


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