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Marshall v. Klebanov6/22/2005
ce and could not afford to pay for the session. The receptionist suggested that she nevertheless speak with the doctor about her medications, but Mrs. Marshall refused and claimed to be feeling well enough to wait until she obtained insurance confirmation in a couple of weeks.
Whatever actually occurred on January 14, it is undisputed that later that day, the doctor called to inquire why Mrs. Marshall had not kept her appointment. Subsequently, on that day, defendant and plaintiff spoke, and the doctor some time thereafter made an appointment with Mrs. Marshall for February 4, 2000, which was almost one month after the initial session. Tragically, two days before this appointment, on February 2, 2000, Mrs. Marshall hanged herself.
Plaintiff claims that Dr. Klebanov committed malpractice by abandoning his patient and not providing her with appropriate treatment. Plaintiff's expert supported this position and opined that " lthough [defendant] appropriately assessed the high risk of suicide, he did not take appropriate action to deal with that risk" and defendant's "failure to do so was one major factor that led to Ellen's suicide." Defendant's actions, according to plaintiff's expert, "constitute a deviation from the proper standard of medical and psychiatric care, because he abandoned his patient."
Regardless of plaintiff's expert's opinion, however, the motion judge agreed with defendant that N.J.S.A. 2A:62A-16 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. The motion judge stated that "the language in the statute is unambiguous" and "N.J.S.A. 2A:62A-16a provides the defendant, Dr. Klebanov, here, with an immunity, so long as one of the two subsections of are not applicable." Because neither the doctor nor Mrs. Marshall's relatives believed her suicide was imminent, the judge concluded that the statute completely immunized defendant from any malpractice claim, and granted defendant summary judgment, dismissing plaintiff's complaint.
Pursuant to N.J.S.A. 2A:62A-16a, any licensed mental health practitioner, including a psychiatrist, "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 subsection b. of this section and fails to discharge that duty as set forth in subsection c of this section."
The statute specifies in subsection b how the practitioner incurs the duty to "warn and protect." The duty is incurred when the patient communicates to the 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 the patient intended to carry out the threat." N.J.S.A. 2A:62A-16b(1). A duty to "warn and protect" can also be incurred when 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." N.J.S.A. 2A:62A-16b(2).
When the practitioner incurs a duty to "warn and protect," he or she can be liable for failing to discharge that duty in the manner specified in subsection c of the law. Thus the practitioner who has incurred such a duty, in accordance with subsection b, can discharge that duty by arranging for the admission or involuntary commitment of the patient into a psychiatric hospital or other appropriate medical car
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