Case 1:16-cv-02116-PAB-KLM Document 1 Filed 08/19/16 USDC Colorado Page 1 of 14

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No.

BRENDA CULHANE,
Plaintiff,
v.
GARY M. WEISS, M.D.
Defendant.
PLAINTIFF’S COMPLAINT, JURY DEMAND AND CERTIFICATE OF REVIEW

Plaintiff, Brenda Culhane, by and through her counsel, James E. Puga and Alex R.
Wilschke, of the law firm of Leventhal & Puga, P.C., hereby submits the following Complaint,
Jury Demand and Certificate of Review:
I.

CERTIFICATE OF REVIEW

1.

Pursuant to C.R.S. § 13-20-602(3)(a), Counsel certifies as follows:

2.

Counsel has consulted with physician(s) with expertise in the area of the alleged

negligent conduct as set forth in Plaintiff’s Complaint;
3.

The physician(s) consulted reviewed all known facts relevant to the allegations of

negligent conduct as complained of in Plaintiff’s Complaint;

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4.

Based upon review of such facts, the physician(s) concluded that the filing of the

claims against the defendant does not lack substantial justification within the meaning of C.R.S.
§ 13-17-102(4); and,
5.

The physician(s) reviewed all known facts relevant to the allegations of negligent

conduct as contained in Plaintiff’s Complaint meet the requirements set forth in C.R.S. § 13-64401.
II.
6.

PARTIES, JURISDICTION, AND VENUE

Plaintiff incorporates by reference paragraphs 1 through 5 herein Complaint as if

fully set forth herein.
7.

This is a diversity action filed under the provisions of 28 U.S.C. 1332 by reason of

the diversity of citizenship of the Parties, and the amount in controversy exceeds $75,000.00.
8.

Long arm jurisdiction exists pursuant to Colorado Revised Statute § 13-1-124(1)(a,

b) because the tortious acts occurred in the State of Colorado.
9.

Venue is proper in this Court under 28 U.S.C. 1391 because the tortious acts that

gave rise to the claims alleged herein occurred in the State of Colorado.
10.

At all relevant times, Plaintiff Brenda Culhane was a resident of Colorado.

11.

Defendant Gary M. Weiss, M.D. (“Defendant Weiss”) is currently a resident of the

State of Florida.
12.

From December 1996 to April 2014, Defendant Weiss was a physician licensed to

practice medicine in the State of Colorado, holding himself out as a specialist in Neurology and
Electrodiagnostic Medicine.

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13.

From December 7, 2000 to July 17, 2013, Defendant Weiss owned and was the sole

member of Weiss Medical Associates, P.C.
14.

Upon information and belief, at all relevant times, Defendant Weiss and Weiss

Medical Associates had its principal place of business at 3971 Bighorn Road, Suite 7DD, Vail,
Colorado 81657 and was authorized to do business in the State of Colorado.
15.

On September 22, 2014, Defendant Weiss entered into a settlement with the

Colorado Medical Board, in Case No. 2012-001765-B, where, as the result of a patient complaint
regarding his treatment of relapsing and remitting multiple sclerosis, Defendant Weiss agreed not
to apply for renew, reinstatement, reactivation or issuance of a new license to practice medicine in
the State of Colorado at any time in the future.
III.
16.

GENERAL ALLEGATIONS

Plaintiff incorporates by reference paragraphs 1 through 15 of this Complaint as if

fully set forth herein.
17.

On July 17, 2007, Plaintiff Brenda Culhane presented to Defendant Weiss for an

appointment to evaluate her complaint of upper extremity weakness.
18.

On July 17, 2007, Defendant Weiss recommended checking an MRI of the brain

and cervical spine with FLAIR, checking an EEG, and checking an EMG/NCS in the upper
extremities.
19.

On July 28, 2007, Plaintiff Brenda Culhane underwent an EEG performed by

Defendant Weiss.
20.

Defendant Weiss interpreted the EEG as within normal limits.

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21.

On August 27, 2007, Plaintiff Brenda Culhane presented to Defendant Weiss.

22.

On August 27, 2007, Defendant Weiss reviewed Plaintiff Brenda Culhane’s MRI

of the brain and interpreted the imaging to show that the lesions present were consistent with
Multiple Sclerosis (“MS”).
23.

MS is a permanent debilitating disease with no known cure.

24.

On August 27, 2007, Defendant Weiss noted Plaintiff Branda Culhane’s EMG/CNS

was abnormal, consistent with myotonic disorder with neurogenic changes in both FDI’s.
25.

On August 27, 2007, Defendant Weiss diagnosed Plaintiff Brenda Culhane with

probable M.S. myotonia and neurologic changes.
26.

On August 27, 2007, Defendant Weiss recommended a lumbar puncture to confirm

the MS diagnosis.
27.

On August 30, 2007, Plaintiff Brenda Culhane presented to Defendant Weiss for a

lumbar puncture.
28.

On October 1, 2007, Defendant Weiss noted that Plaintiff Brenda Culhane’s

cerebral spinal fluid from the lumbar puncture was negative for indications of MS.
29.

On November 14, 2007, Plaintiff Brenda Culhane underwent an MRI of the brain

and Defendant Weiss diagnosed Plaintiff Brenda Culhane with MS.
30.

Based on Defendant Weiss’ diagnosis, Plaintiff Brenda Culhane believed she had

31.

On November 14, 2007, Defendant Weiss prescribed Tysabri infusions.

MS.

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32.

Plaintiff Brenda Culhane began monthly Tysabri infusions following the November

14, 2007 appointment with Defendant Weiss and continued monthly Tysabri infusions until July
30, 2015, for a total of over 100 Tysabri infusions.
33.

Tysabri is only FDA approved for the treatment of the relapsing/remitting type of

MS and Crohn’s disease.
34.

From on or about July 17, 2007, to on or about November 3, 2008, Plaintiff Brenda

Culhane received continuous treatment from Defendant Weiss.
35.

From on or about July 17, 2007, to on or about November 3, 2008, Plaintiff Brenda

Culhane had 7 MRIs done at a facility owned and operated by Defendant Weiss.
36.

Upon information and belief, the MRI machine owned and operated by Defendant

Weiss was not adequate for the diagnostic uses which he represented.
37.

On or about July 17, 2007, to on or about August 22, 2014, Plaintiff Brenda Culhane

continued to receive Tysabri infusions originally prescribed and recommended by Defendant
Weiss.
38.

Defendant Weiss sold his medical practice, including his MRI and EMG to Mark

Pithan, M.D. on July 17, 2013.
39.

Dr. Pithan recommended Plaintiff Brenda Culhane contact the University of

Colorado for a review of Defendant Weiss’ MS diagnosis.
40.

On August 22, 2014, Plaintiff Brenda Culhane presented for an appointment with

Enrique Alvarez, M.D/PhD at University of Colorado Hospital.
41.

Dr. Alvarez questioned Plaintiff Brenda Culhane’s MS diagnosis.

42.

Brenda Culhane’s spine imaging was normal.

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43.

After reviewing Plaintiff Brenda Culhane’s imaging studies and the results of an

elective lumbar puncture, which was negative for signs of MS, Dr. Alvarez concluded Plaintiff
Brenda Culhane did not have MS.
44.

On or about September 17, 2014, Plaintiff Brenda Culhane first became aware that

she did not have MS.
45.

On or about September 17, 2014, Plaintiff Brenda Culhane first became aware that

the care and treatment provided by Defendant Weiss was not medically indicated.
46.

On or about September 17, 2014, Plaintiff Brenda Culhane first became aware that

the medication prescribed by Defendant Weiss was not medically indicated.
47.

Plaintiff Brenda Culhane received continuous course of improper treatment, due to

Defendant Weiss’ misdiagnosis of MS, until September 17, 2014.
48.

Plaintiff Brenda Culhane was under the belief that she had MS since August 27,

49.

Plaintiff Brenda Culhane does not have MS.

50.

Plaintiff Brenda Culhane does not have Crohn’s Disease.

51.

As a result of Defendant Weiss’ diagnosis of MS and his prescription of MS

2007.

medications, Plaintiff Brenda Culhane feared she would contract deadly infections and die.
52.

As a result of Defendant Weiss’ diagnosis of MS, Plaintiff Brenda Culhane

underwent unnecessary medical imaging.
53.

As a result of Defendant Weiss’ diagnosis of MS and his prescription of MS

medications, Plaintiff Brenda Culhane suffered numerous side effects, including nervousness,
depression, anxiety, stress, and fear.

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54.

Defendant Weiss knew or should have known Plaintiff Brenda Culhane did not and

does not have MS.
55.

On August 21, 2015, Dr. Pithan filed a Verified Complaint, 2015CV30165, in the

District Court, Summit County, Colorado alleging, breach of contract and warranty, fraud in the
inducement, negligent misrepresentation, false representation, fraudulent concealment/nondisclosure, and contractual indemnification, among other averments, all related to the sale of
Defendant Weiss’ medical practice to Dr. Pithan.
IV.
FIRST CLAIM FOR RELIEF
(Negligence – Gary M. Weiss, M.D.)
56.

Plaintiff Brenda Culhane incorporates by reference paragraphs 1 through 55 of this

Complaint as if fully set forth herein.
57.

Defendant Weiss was negligent in his care and treatment of Plaintiff Brenda

Culhane, and as a result, Plaintiff Brenda Culhane suffered damages.
58.

With respect to his care and treatment of Plaintiff Brenda Culhane, Defendant

Weiss owed a duty to exercise that degree of care, skill, caution, diligence and foresight exercised
by and expected of physicians in similar situations.
59.

The applicable standard of care required Defendant Weiss to recognize Plaintiff

Brenda Culhane did not have MS. Defendant Weiss deviated from the accepted standards of care
and was negligent in his care and treatment of Plaintiff Brenda Culhane by, including, but not
limited to:
a.

Failing to timely and appropriately respond to Plaintiff Brenda Culhane’s
signs and symptoms;

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b.

Failing to timely and appropriately evaluate, diagnose, monitor,
supervise, care, and treat Plaintiff Brenda Culhane’s medical condition;

c.

Failing to appropriately interpret imaging studies;

d.

Misdiagnosing Plaintiff Brenda Culhane’s medical condition;

e.

Prescribing medication for uses for which it was not FDA approved
without informing the patient;

f.

Performing unnecessary imaging on Plaintiff Brenda Culhane;

g.

Failing to appropriately consult with specialist physicians, including but
not limited to radiologists and neuroradiologists, concerning the treatment
of Plaintiff Brenda Culhane’s medical condition; and,

h.

Failing to timely and appropriately advise and inform Brenda Culhane of
her true medical condition.

60.

As a direct and proximate result of the negligence of Defendant Weiss, Plaintiff

Brenda Culhane has suffered injuries, damages, and losses as described herein, including but not
limited to past and future medical expenses, past and future lost wages, past and future home
services, pain and suffering, mental anguish, and emotional distress.
V.
SECOND CLAIM FOR RELIEF
(Negligent Infliction of Emotional Distress – Gary M. Weiss, M.D.)
61.

Plaintiff incorporates by reference paragraphs 1 through 60 of this Complaint as if

fully set forth herein.
62.

Defendant Weiss was negligent in the care and treatment provided to Plaintiff

Brenda Culhane.

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63.

Defendant Weiss’ negligence created an unreasonable risk of physical harm to

Plaintiff Brenda Culhane.
64.

Defendant Weiss’ negligent misdiagnosis of MS permitted him to prescribe

medications the FDA does not approve for patients without MS, which subjected Plaintiff Brenda
Culhane to an unreasonable risk of physical harm.
65.

Defendant Weiss’ negligence put Plaintiff Brenda Culhane in fear of her own safety

because of her diagnosis of a debilitating immune-mediated disorder with no cure.
66.

Defendant Weiss’ negligence put Plaintiff Brenda Culhane in fear of her own safety

because of the potential to develop Progressive Multifocal Leukoencephalopathy as an MS patient
with the John Cunningham (JC) Virus.
67.

Defendant Weiss’ negligence subjected Plaintiff Brenda Culhane to the anxiety,

frustration, inconvenience, and loss of enjoyment of life associated with unnecessary medical
office visits, repeat imaging, and medication.
68.

Plaintiff Brenda Culhane suffered side effects of the Tysabri injections prescribed

by Defendant Weiss. Plaintiff Brenda Culhane suffered continued emotional disturbance from the
time of her MS diagnosis on or about August 27, 2007 until she discovered she did not have MS
on September 17, 2014.
69.

Plaintiff Brenda Culhane suffered continued emotional disturbance from the time

of her MS diagnosis on or about August 27, 2007 until she discovered she did not have MS on
September 17, 2014.
70.

Plaintiff Brenda Culhane continues to suffer emotional disturbance after learning

she did not have MS due to Defendant Weiss’ negligent misdiagnosis.

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71.

As a direct and proximate result of Defendant Weiss’ negligent infliction of

emotional distress, Plaintiff Brenda Culhane has sustained injuries, damages, and losses as more
fully set forth herein.
VI. THIRD CLAIM FOR RELIEF
(Negligent Misrepresentation – Gary M. Weiss, M.D.)
72.

Plaintiff incorporates by reference paragraphs 1 through 71 of this Complaint as if

fully set forth herein.
73.

Defendant Weiss negligently gave false information to Plaintiff Brenda Culhane

about her medical condition.
74.

Defendant Weiss told Plaintiff Brenda Culhane she had MS on August 27, 2007 at

his medical office located at 3971 Bighorn Road, Suite 7DD, Vail, Colorado 81657.
75.

Defendant Weiss continued to negligently misrepresent Plaintiff Brenda Culhane’s

medical condition as MS at her medical appointments at 3971 Bighorn Road, Suite 7DD, Vail,
Colorado 81657 with Defendant Weiss on:

76.

a.

August 27, 2007;

b.

August 30, 2007;

c.

October 1, 2007;

d.

November 14, 2007;

e.

May 19, 2008;

f.

November 3, 2008.

Plaintiff Brenda Culhane actually and reasonably relied upon Defendant Weiss’ MS

diagnosis.

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77.

Plaintiff Brenda Culhane actually and reasonably relied upon Defendant Weiss’ MS

diagnosis because he is a medical doctor.
78.

Plaintiff Brenda Culhane received medical care and treatment from Defendant

Weiss because of the MS diagnosis.
79.

Plaintiff Brenda Culhane did not have the knowledge, training, or experience to

know whether or not she had MS.
80.

Plaintiff Brenda Culhane’s reliance upon Defendant Weiss’ MS diagnosis caused

physical harm to Plaintiff Brenda Culhane.
81.

Plaintiff Brenda Culhane suffered side effects due to the MS medications prescribed

by Defendant Weiss.
82.

Plaintiff Brenda Culhane suffered physical harm, including but not limited to side

effects from the medications prescribed by Defendant Weiss, due to the MS diagnosis.
83.

As a direct and proximate result of Defendant Weiss’ negligent misrepresentation,

Plaintiff Brenda Culhane has sustained injuries, damages, and losses as more fully set forth herein.
VII. FOURTH CLAIM FOR RELIEF
(Fraudulent Representation – Gary M. Weiss, M.D.)
84.

Plaintiff incorporates by reference paragraphs 1 through 83 of this Complaint as if

fully set forth herein.
85.

Defendant Weiss negligently made a false representation to Plaintiff Brenda

Culhane about her medical condition.
86.

Defendant Weiss told Plaintiff Brenda Culhane she had MS on August 27, 2007 at

his medical office located at 3971 Bighorn Road, Suite 7DD, Vail, Colorado 81657.

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87.

Defendant Weiss continued to fraudulently represent Plaintiff Brenda Culhane’s

medical condition as MS at her medical appointments at 3971 Bighorn Road, Suite 7DD, Vail,

88.

a.

August 27, 2007;

b.

August 30, 2007;

c.

October 1, 2007;

d.

November 14, 2007;

e.

May 19, 2008;

f.

November 3, 2008.

Defendant Weiss’ false representation about Plaintiff Brenda Culhane’s medical

condition was material to her health.
89.

Defendant Weiss knew Plaintiff Brenda Culhane did not have MS on August 27,

90.

Defendant Weiss knew Plaintiff Brenda Culhane did not have MS as he continued

2007.

his care and treatment after August 27, 2007 through November 3, 2008.
91.

Defendant Weiss knew Plaintiff Brenda Culhane did not have the knowledge,

training, or experience to know whether the MS diagnosis was true or false.
92.

Defendant Weiss made the MS diagnosis with the intent that Plaintiff Brenda

Culhane would rely on the representation.
93.

Defendant Weiss was aware he did not know whether the representation of Plaintiff

Brenda Culhane’s MS diagnosis was true or false.
94.

Defendant Weiss made the MS diagnosis with the intent that Plaintiff Brenda

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Culhane would seek medical care and treatment from Defendant Weiss as a result of relying on
the representation.
95.

Plaintiff Brenda Culhane relied upon Defendant Weiss’ MS diagnosis.

96.

Plaintiff Brenda Culhane did not have the knowledge, training, or experience to

know whether or not she had MS.
97.

Plaintiff Brenda Culhane was justified in relying upon the representation she had

98.

Plaintiff Brenda Culhane was justified in relying upon the diagnosis of a medical

MS.

doctor as a patient without knowledge, training, or experience with MS.
99.

Because of the MS diagnosis, Plaintiff Brenda Culhane took action in seeking

medical care and treatment she would have not otherwise sought absent Defendant Weiss’
diagnosis.
100.

Plaintiff Brenda Culhane’s reliance upon Defendant Weiss’ MS diagnosis caused

injuries, damages, and losses to Plaintiff Brenda Culhane.
101.

Plaintiff Brenda Culhane incurred medical bills for medical care, including but not

limited to office visits, imaging studies, and medications, because of her reliance on Defendant
Weiss’ MS diagnosis.
102.

As a direct and proximate result of Defendant Weiss’ fraudulent representation,

Plaintiff Brenda Culhane has sustained injuries, damages, and losses as more fully set forth herein.
WHEREFORE, Plaintiff Brenda Culhane respectfully prays for compensatory damages
in their favor and against Defendants in an amount to be determined by the trier of fact, interest
from the date of filing, pre-judgment and post-judgment interest as allowed by law, witness fees,

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filing fees, deposition expenses, attorney’s fees, and for such other and further relief as the Court
may deem appropriate and just including all costs.
PLAINTIFF DEMANDS A TRIAL BY JURY
Respectfully submitted this 19th day of August, 2016.
LEVENTHAL & PUGA, P.C.

By:

/s/ Alex R. Wilschke
James E. Puga, Atty. No. 18960
Alex R. Wilschke, Atty. No. 36323
Leventhal & Puga P.C.
950 South Cherry Street, Suite 600
Denver, CO 80249
ATTORNEYS FOR PLAINTIFF
BRENDA CULHANE

In accordance with C.R.C.P. 121 § 1-26(9), a printed copy of this document with original signatures is
maintained by the filing party and will be made available for inspection by other parties or the Court
upon request.

Plaintiff’s Address:
103 Highwood Terrace
Frisco, Colorado 80443

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