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Melvin Blum, Executor of the v. Debra R. Goldstein

August 16, 2012

MELVIN BLUM, EXECUTOR OF THE ESTATE OF CLAIRE BLUM AND MELVIN BLUM, INDIVIDUALLY, PLAINTIFF-APPELLANT,
v.
DEBRA R. GOLDSTEIN, M.D., DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-8378-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 28, 2011

Before Judges Axelrad, Sapp-Peterson and Ostrer.

Plaintiff - the estate of Claire Blum and her surviving husband - appeals from a no cause verdict on his medical negligence complaint. Defendant Debra Goldstein, M.D., perforated Claire Blum's colon while performing a colonoscopy on November 14, 2006. Blum died five months later from related complications at the age of eighty-five. Plaintiff does not allege Dr. Goldstein performed the colonoscopy in a negligent manner. He alleges she was negligent in deciding to perform the procedure at all. In support of his appeal, plaintiff argues the court erred in several evidentiary rulings, and in its jury instructions and jury interrogatories. We affirm.

I.

Dr. Goldstein is a board certified physician in the fields of internal medicine and gastroenterology, and focused eighty percent of her practice on gastroenterology. She began treating Blum in 1993, first for gastrointestinal issues, but later as her general internist.

Dr. Goldstein stated that she generally did not perform a colonoscopy for only screening or surveillance purposes when an elderly patient had a life-expectancy of less than five years, because the risks would outweigh the benefits. Dr. Goldstein defined a "screening colonoscopy" as one performed on an average risk patient for pre-cancer of the colon; "surveillance colonoscopy" is performed on an above-average risk patient as follow-up to detect cancer, or as a follow up for a person who has had polyps, cancer, or colitis; and a "diagnostic colonoscopy" is performed to determine why a patient has pain or other symptoms or signs, including iron deficiency anemia.

Dr. Goldstein asserted Blum's colonoscopy was appropriate, despite her age, as both a diagnostic colonoscopy and a surveillance colonoscopy. First, she asserted Blum suffered from iron deficiency anemia, and the colonoscopy would enable her to diagnose whether the anemia was connected to other conditions, including cancer. In December 2005, while Blum was wintering in Florida, Dr. Goldstein reviewed Blum's lab results from a recent office visit. The physician wrote, "More anemic and iron deficient. Need to take iron daily and vit C, 25 mg. Will arrange colonoscopy on return from Florida." Dr. Goldstein also relied on subsequent lab results in 2006 to support her assertion that Blum continued to suffer from low iron. Second, Dr. Goldstein asserted she performed the colonoscopy for surveillance purposes, to follow-up on polyps she had previously observed during colonoscopies in 1997 and 2001.

The trial focused on these two justifications for Blum's procedure. Plaintiff, Melvin Blum, the decedent's husband, testified. Plaintiff also called Dr. Goldstein, Blum's two adult sons, and an expert, Dr. Michael Samach. The defense relied on Dr. Goldstein's testimony and that of an expert, Dr. Charles Goldberg.

Plaintiff disputed Dr. Goldstein's assertion that she performed the procedure to diagnose the source of Blum's IDA. Plaintiff disputed that Blum suffered from IDA. Plaintiff's expert analyzed Blum's medical records, including various blood test results, and opined that she did not suffer from IDA. Defendant's expert and Dr. Goldstein opined, based on their review of Blum's records, that Blum did.

Plaintiff also asserted that IDA was an after-the-fact justification for the procedure. He highlighted that numerous pre- and post-procedure records did not refer to IDA. He also argued that if Dr. Goldstein genuinely believed Blum suffered from IDA, she would not have waited many months to perform the procedure. Dr. Goldstein insisted that IDA was the primary reason she performed the procedure, and her expert found support for that assertion in selected medical records, and the course of Dr. Goldstein's treatment of Blum, including the doctor's instruction, recorded in Blum's chart, that she take iron supplements in advance of the colonoscopy.

Plaintiff also disputed that the procedure was justified as a surveillance colonoscopy. He asserted that Dr. Goldstein had not found any pre-cancerous polyps in the two previous colonoscopies to justify a third colonoscopy. He relied on pathology reports and plaintiff's expert's interpretation of them. Dr. Goldstein and her expert responded that the pathology reports were not definitive, and Dr. Goldstein was correct to rely on her observations of polyps.

Another significant area of factual dispute addressed Blum's overall health, and whether various aspects of her medical history increased the risk of perforation. Blum had numerous abdominal surgeries, resulting in adhesions or scar tissue in the abdominal area. She was taking a low dose of a steroid, Prednisone, for a mild form of myasthenia gravis. After suffering a pulmonary embolism that led to removal of part of her lung, she also was on a blood-thinner, Coumadin. She had diverticulosis and a history of bowel obstructions. Her colon was also considered tortuous and twisty. She had been very ill in 2004, suffering from multiple bouts of pneumonia.

Plaintiff introduced evidence to demonstrate that Blum's health was fragile. The defense introduced evidence that Blum was a vibrant, healthy eighty-five-year-old whose various conditions were well-managed. Plaintiff's expert opined that Blum's then-current status, and her history increased her risk. Dr. Goldstein and her expert, to the extent they conceded these factors increased risk, did not deem them so significant as to outweigh the benefits of the procedure, or render it negligent to perform it.

Plaintiff also elicited testimony on informed consent. The record includes an informed consent form that Blum signed the day of the procedure, which discloses that a potential complication of the procedure was a perforated colon. It also stated, "I have been made aware by the physician/practitioner of the benefits of the proposed procedure and of not undergoing the proposed procedure." Although Dr. Goldstein could not recall her specific discussion with Blum, she stated it was her routine to discuss the risk of perforation with patients. She admitted that she did not advise Blum that she faced exceptional or above-average risks, nor did she specifically advise Blum that she had the option to do nothing.

Both experts testified that a physician should inform a patient of the risks of perforation. However, when Dr. Samach was asked on direct examination what Dr. Goldstein should have informed Blum in obtaining her consent to the procedure, Dr. Samach responded that she should have told Blum she did not need a colonoscopy. On cross-examination, Dr. Samach was asked, "Would I be correct in saying that it's your testimony in this case that you had no problems or quarrels with respect to the informed consent issue, correct?" and he answered, "I saw no reason to have that, yeah." Dr. Goldberg declined to answer with a yes or no whether Dr. Goldstein should have told Blum, "you're at increased risk of perforation," although he conceded that she was at increased risk.

After a seven-day trial before Judge Alberto Rivas, the jury returned a 7-1 verdict for the defendant. The court denied a motion for a new trial or a judgment notwithstanding the verdict, and entered judgment of no cause of action on August 12, 2010. This appeal followed.

Plaintiff raises the following issues for our consideration:

POINT I

TRIAL COURT'S ERRONEOUS INSTRUCTION OF PROXIMATE CAUSE REQUIRES A NEW TRIAL.

A. Standard of Review.

B. Proximate Cause Was Not An Issue In

Case.

C. Jury Interrogatory Number One Was Confusing.

POINT II APPELLANT SHOULD HAVE BEEN PERMITTED TO PROVE INFORMED CONSENT THROUGH RESPONDENT AND HER EXPERT.

A. Elements Of Informed Consent.

B. Appellant Properly Asked Respondent's Expert Questions About ...


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