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Marshall v. Klebanov6/22/2005
e facility, N.J.S.A. 2A:62A-16c(1),(2); by advising local law enforcement of the threat; or by warning the intended victim or the parent or guardian of an intended victim or patient who is a minor.
N.J.S.A. 2A:62A-16c(3),(4),(5).
Finally, the statute recognizes that to discharge the duty in the manner it directs, the practitioner, under some circumstances, must disclose confidential information learned from the patient during treatment. Consequently, the law also specifically provides that any practitioner who discharges the duty in the manner directed by the statute "is immune from civil liability in regard to that disclosure." N.J.S.A. 2A:62A-16d.
The purpose of this 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. The duty specified is to both warn and protect; it is not a duty to warn or protect. As part of that duty to warn and protect, the mental health practitioner "would be required to disclose confidential information obtained from a patient." Runyon v. Smith, 163 N.J. 439, 441 (2000). 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. See Runyon v. Smith, 322 N.J. Super. 236, 248-9 n.1 (App. Div. 1999), aff'd, 163 N.J. 439 (2000).
Under 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.
It is well accepted that " egligence is conduct which falls below a standard recognized by the law as essential to the protection of others from unreasonable risks of harm." Sanzari v. Rosenfeld, 34 N.J. 128, 134 (1961). " rdinarily when a physician [such as defendant] is charged with negligence in the treatment of a patient, the standard of practice to which he [or she] failed to adhere must be established by expert testimony." Id. at 135. It has been established that a physician must "safeguard the patient from a reasonably foreseeable self-inflicted injury." Cowan v. Doering, 215 N.J. Super. 484, 495 (App. Div. 1987), aff'd, 111 N.J. 451 (1988). "The controlling factor in determining whether there may be a recovery for a failure to prevent a suicide is whether the defendant reasonably should have anticipated the danger that the deceased would attempt to harm [herself]." Fernandez v. Baruch, 52 N.J. 127, 132 (1968).
Had the Legislature intended to sweep as broadly as defendant argues and eliminate all liability for suicide for any reason when the threat of suicide was not imminent, even if the threat of suicide was reasonably likely, it would have signaled its intentions with greater clarity. Instead, when the law was introduced in 1990, an introductory statement declared, "State and federal courts are shaping remedies for victims of violent crimes which include a cause of action against licensed practitioners of psychology, medicine or marriage counseling for failing to warn of a patient's potentially viole
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