JEFFREY SHECTMAN v. ROBERT BRANSFIELD, M.D.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4949-04T54949-04T5

JEFFREY SHECTMAN,

Plaintiff-Appellant,

v.

ROBERT BRANSFIELD, M.D.,

Defendant-Respondent.

_______________________________________

 

Submitted January 25, 2006 - Decided February 10, 2006

Before Judges Stern, Parker and Yannotti.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. MID-L-4452-03.

Amabile & Erman, attorneys for appellant (Anthony A. Lenza, Jr., on the brief).

Amdur, Maggs & McGann, attorneys for respondent (Richard A. Amdur, of counsel and on the brief).

PER CURIAM

Plaintiff Jeffrey Shectman appeals from an order entered May 13, 2005 granting summary judgment in favor of defendant Robert Bransfield, M.D. and dismissing the complaint and any and all cross-claims with prejudice. We reverse and remand.

I.

Plaintiff is an individual with a long history of mental illness. He began treating with defendant in April 1991. Defendant diagnosed plaintiff as having schizoaffective disorder, bipolar disorder and depression. Plaintiff attempted suicide on November 4, 2000. He was then 37 years of age. On June 12, 2003, plaintiff filed this malpractice action, alleging that defendant owed him a duty to render psychiatric care in conformity with accepted standards of practice and breached that duty. Plaintiff claimed that the breach was a proximate cause of his attempted suicide and the resulting injuries.

In support of these claims, plaintiff submitted a report from David J. Gallina, M.D., P.A. Gallina noted that plaintiff's long history of mental illness included three psychiatric hospitalizations and treatment with a variety of psychotrophic medications. Gallina reviewed the records of plaintiff's treatment, including defendant's records. He stated:

The records reveal that [defendant] was treating [plaintiff] psychopharmacologically for his psychiatric illness. In the course of this treatment, [defendant] prescribed a serotonin reuptake inhibitor, an antidepressant medication, Paxil, for [plaintiff] on 6/2/00.

In this regard, it should be noted that a psychiatrist has a duty to monitor and supervise the patient's physical and emotional response to medication as a form of psychopharmacological treatment provided by the physician. This is usually accomplished through direct interviewing and contact with the patient.

The review of records reveals that, in spite of the fact that this was a new medication that was started for [plaintiff], that he was not seen again for an office visit by [defendant] until 9/5/00, more than three months after the medication was initially prescribed. A subsequent emergency visit was scheduled for 10/9/00, because [plaintiff] was experiencing an exacerbation of his psychiatric symptoms, including weight loss, neglect of personal hygiene, obsessive religiosity, and psychotic thinking and behavior.

The records indicate, therefore, that [defendant] did not fulfill his obligation to appropriately monitor and supervise the patient's physical and emotional response to medication, in that timely and regular visits with the patient were not scheduled, and there was no opportunity for [defendant] to take and record a detailed present and recent past history of the patient, and to monitor the patient's response to the new medication, i.e. Paxil. [Defendant],...did not carefully monitor [plaintiff's] response to treatment through appropriate regular direct patient interviews, and therefore did not have the opportunity to make appropriate adjustments in the psychopharmacological aspects of this patient's treatment until 10/9/00, approximately four months after the Paxil was started. At that time, [defendant] made the decision to gradually discontinue [plaintiff's] Paxil. Again, appropriate monitoring supervision of [plaintiff's] withdrawal from the Paxil was not provided by [defendant]. [Plaintiff] had no scheduled appointment with [defendant] for the next twenty seven days, until 11/5/00, at which time [plaintiff experienced] uncontrollable violent urges, which led to an overdose of medication and Tide laundry detergent, and self-inflicted violence in which he stabbed himself with a four inch knife twenty three times in the stomach. He also cut his left wrist with a five inch steak knife, and cut the left aspect of his throat. As a result of this incident, he was subsequently hospitalized.

This patient also had a long psychiatric history, well known to [defendant], and he therefore presented a foreseeable risk which required close psychiatric management, which was not rendered by [defendant].

It is, therefore, my medical opinion, with reasonable medical certainty, that [defendant] in his treatment of [plaintiff], did not exercise the reasonable [judgment] and standard of care expected of the ordinary psychiatrist practicing clinical psychiatry.

It is, also, my medical opinion, with reasonable medical certainty, that there is a direct proximate causal relationship that has been established in the medical records between the clinical treatment provided by [defendant], and the subsequent psychiatric condition of [plaintiff].

The trial court entered an order on October 10, 2003 dismissing the complaint as having been filed beyond the time prescribed by the applicable statute of limitations. Plaintiff appealed. We concluded that the action was not time-barred, reversed the order and remanded the matter for further proceedings. Jeffrey Shectman v. Robert Bransfield, M.D., A-1311-03T3 (App. Div. June 30, 2004).

Plaintiff testified at a deposition that, when he was 13 years old, he experienced what he described as "volunteer mutism" and was treated for the disorder for about two or three months. Plaintiff asserted that he attempted to overdose on medication when he was 16 years old. Plaintiff said that this was a "cry for help." Plaintiff has been treated since on a regular basis.

In April 1991, plaintiff came under defendant's care. Plaintiff was then about 27 years old. Defendant's records state that, on his initial visit, plaintiff complained of "command hallucinations." Plaintiff informed defendant that he was being told "to have sex with dead people." Plaintiff recalled that, at the time he began treatment with defendant, he was taking Haldol, Tegretol and Lithium.

Plaintiff testified that defendant first prescribed Paxil in June 2000 and increased the dosage of this medication in September 2000. Plaintiff said that, in early October, 2000, he was in a "bad condition." He had not showered for days. His clothes were dirty and he had "a lot of like crazy religious thoughts." Plaintiff's mother scheduled an emergency visit with defendant. The record shows that this visit took place on October 9, 2000. Plaintiff said that he had "a lot of obsession" at the time. Defendant advised plaintiff to decrease the dosage at the time. Defendant advised plaintiff to decrease the dosage and then discontinue the Paxil. Plaintiff returned home with his parents.

Plaintiff stated that, at about 4:00 p.m. on November 4, 2000, a "thought hit" him of "wanting to harm" his sister. He went upstairs and took "some pills." At about 6:00 p.m., he came down and saw his family. His father asked if plaintiff wanted to watch television. Plaintiff said, "I'll see" but he testified that he he did not intend to see his father later because he "was out to kill" himself.

Plaintiff went upstairs and took some more pills. He said that around 8:00 p.m. he was unconscious. He woke at 10:00 p.m. and smoked a cigarette. Plaintiff said that he passed out again and woke up at midnight or 1:00 a.m. He went into the bathroom, took Tide detergent and swallowed it. Plaintiff then went downstairs, got a steak knife and cut his writs. He took out a "lock blade" and stabbed himself twenty three times "to the body."

On March 29, 2005, defendant moved for summary judgment arguing that he was entitled to immunity from civil liability pursuant to N.J.S.A. 2A:62A-16. Plaintiff opposed the motion, asserting that defendant had waived the immunity defense, defendant was equitably estopped from asserting the defense, and the statute was inapplicable and unconstitutional. The judge heard argument on May 13, 2005. She determined that defendant was not barred from asserting that he was immune from liability pursuant to N.J.S.A. 2A:62A-16. The judge found that defendant was entitled to immunity under the statue and granted the motion for summary judgment. In her decision from the bench, the judge stated:

Here, it's been illustrated that the plaintiff did not behave in a way or communicate to his parents or his doctor that a suicide attempt was imminent. This is apparent from the plaintiff's own deposition testimony and his parent's deposition...testimony. There's a lack of any kind of communication of a threat of imminent severe physical violence. There's no circumstance that would cause a reasonable psychiatrist to believe that [plaintiff] intended to carry out such a threat. [Defendant] had no duty here and should be immune from civil liability, if he falls under the protection of the statute.

II.

Plaintiff argues that the motion judge erred in granting summary judgment in favor of defendant. He raises the following points for our consideration: 1) defendant waived the immunity defense under N.J.S.A. 2A:62A-16 because he failed to assert the defense in his answer and did not raise the issue until after the completion of discovery and the scheduling of the matter for trial; 2) defendant should be equitably estopped from asserting immunity under N.J.S.A. 2A:62A-16 because he failed to assert the defense in a timely manner; 3) N.J.S.A. 2A:62A-16 does not apply to plaintiff's claims; and 4) N.J.S.A. 2A:62A-16 unconstitutionally violates plaintiff's right to equal protection under the law.

We turn first to plaintiff's contention that N.J.S.A. 2A:62A-16 is inapplicable to this case. N.J.S.A. 2A:62A-16(a) provides in pertinent part that a person licensed in this State to practice "psychology, psychiatry, medicine, nursing, clinical social work or marriage counseling" is immune from "any civil liability for a patient's violent act against another person or against himself unless the practitioner has incurred a duty to warn and protect the potential victim as set forth" in N.J.S.A. 2A:62A-16(b) and "fails to discharge that duty as set forth" in N.J.S.A. 2A:62A-16(c).

Under N.J.S.A. 2A:62A-16(b), a practitioner incurs a "duty to warn and protect" when:

(1) The patient has communicated to that practitioner a threat of imminent, serious physical violence against a readily identifiable individual or against himself and the circumstances are such that a reasonable professional in the practitioner's area of expertise would believe that the patient intended to carry out the threat; or

(2) The circumstances are such that a reasonable professional in the practitioner's area of expertise would believe the patient intended to carry out an act of imminent, serious physical violence against a readily identifiable individual or against himself.

The licensed practitioner may discharge the "duty to warn and protect" by doing one or more of the following:

(1) Arranging for the patient to be admitted voluntarily to the psychiatric unit of a general hospital, a short-term care facility, a special psychiatric hospital or a psychiatric facility,...;

(2) Initiating procedures for the involuntary commitment of the patient...;

(3) Advising a local law enforcement authority of the patient's threat and the identify of the intended victim;

(4) Warning the intended victim of the threat, or, in the case of an intended victim who is under the age of 18, warning the parent or guardian of the intended victim; or

(5) If the patient is under 18 and threatens to commit suicide or bodily injury upon himself, warning the parent or guardian of the patient.

[N.J.S.A. 2A:62A-16(c).]

While this appeal was pending, a panel of this court decided Marshall v. Kelbanov, 378 N.J. Super. 371 (App. Div. 2005). In that case, an action was brought for malpractice and wrongful death on behalf of an individual, who committed suicide two days before she was scheduled to see the defendant psychiatrist. Id. at 373. The decedent had tried to kill herself two previous times. Concerned about the decedent's despondency, her mother arranged an appointment with defendant, who noted upon the initial visit that the decedent had suicidal thoughts but no current plan to take her own life. Id. at 374. The defendant found that the decedent had major depression, suffered from depressed mood, blunted affect, poor insight and poor judgment. Ibid. The defendant increased the decedent's dosage of Prozac, continued another medication, prescribed Lithium and decided to see the patient on a weekly basis. Ibid.

The decedent returned the following week for a visit but did not see the doctor. Plaintiffs alleged that the defendant refused to see the decedent because she could not pay for the visit. The defendant disputed this assertion; however, he called the decedent later that day to inquire as to the reasons the decedent did not keep the appointment. Id. at 375. The doctor scheduled another visit but the decedent committed suicide two days before the appointment. Ibid.

Relying upon N.J.S.A. 2A:62A-16, the motion judge dismissed the action, finding that the statute "shields a mental health professional from liability for deviations from the standard of care in all instances except where the patient's suicide is imminent." Ibid. The motion judge determined that, because there was no evidence that the defendant or any of the decedent's family believed that suicide was imminent, the statute provided complete immunity to the defendant from any claim of malpractice. Id. at 376.

We reversed. We stated that "[t]he purpose of the law is to shield mental health practitioners from liability for making disclosures of confidential information after they have incurred a duty to warn and protect in the manner specified by the statute." Id. at 377. We noted that the duty in the statute is a duty to "both warn and protect; it is not a duty to warn or protect." Ibid. "The statute does not deal with all suicides or violent acts against another that may occur during a patient's psychiatric treatment. Unless the case involves a duty to warn and protect, the statute is not implicated." Ibid. (citing Runyon v. Smith, 322 N.J. Super. 236, 248-49, n. 1 (App. Div. 1999), aff'd, 163 N.J. 439 (2000)). We added:

[u]nder this statute, a mental health practitioner who incurs a duty to "warn and protect," because the threat of violence is imminent, can be liable for failing to discharge that duty in the manner specified. The practitioner who has not incurred a duty to "warn and protect" under the statute is not liable for failure to "warn and protect," but can be liable for other deviations from the accepted standard of care that are proximate causes of a patient's violent act or suicide. Stated another way, the statute does not establish the only means by which a psychiatrist can be subject to a duty to protect a patient from self-inflicted harm; a duty to protect may arise without a duty to warn.

[Ibid.]

We rejected the view that, in enacting the statute, the Legislature had intended to eliminate all liability for suicide for any reason when the threat of suicide was not likely. Id. at 378. We noted that, under this interpretation of the statute, "a psychiatrist who prescribed the wrong medication that causes the patient to kill herself or another person would not be liable in any civil action. This is not the result the Legislature contemplated." Id. at 379.

In this case, defendant concedes that there is no evidence that a suicide attempt was imminent. As defendant points out, in the period relevant to this action, plaintiff never communicated to defendant or plaintiff's family members that he intended to take his own life. The record shows that plaintiff last saw defendant on October 9, 2000. Plaintiff testified that he first thought of committing suicide a few hours before he tried to do so. As we stated previously, when he was 16, plaintiff ingested a handful of sleeping pills in an apparent suicide attempt but 21 years passed before plaintiff attempted to take his own life on November 4, 2000. In these circumstances, defendant did not incur a duty to "warn and protect" under N.J.S.A. 2A:62A-16 and he is not entitled to immunity from liability under the statute in respect of the alleged deviations from the standard of care asserted by plaintiff in this case. Marshall, supra, 378 N.J. Super. at 377-78.

We emphasize that our decision is limited to the issue of whether N.J.S.A. 2A:62A-16 provides immunity to defendant in this case. The record before us on this appeal is extremely limited. Therefore, we are unable to assess plaintiff's claim and express no opinion as to its merits.

In light of our determination that N.J.S.A. 2A:62A-16 does not apply to plaintiff's claims, the other issues raised on this appeal are moot.

 
Reversed and remanded for further proceedings consistent with this opinion.

We note that Judge Fuentes dissented. Marshall, supra, 378 N.J. Super. at 381-84 (Fuentes, J.A.D., dissenting). Judge Fuentes stated that N.J.S.A. 2A:62A-16 is clear and unambiguous and provides immunity to a mental healthcare practitioner unless the practitioner has incurred a "duty to warn and protect" pursuant to N.J.S.A. 2A:62A-16(b). Id. at 381. An appeal from our judgment in Marshall is pending in the Supreme Court.

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A-4949-04T5

February 10, 2006