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Marshall v. Klebanov6/22/2005
mminence argument is analogous to the "ostrich defense," which is often rejected in federal criminal cases. E.g., U.S. v. Williams, 202 F.3d 959, 963 n.1 (7th Cir. 2000) (defendant "may not escape liability by shutting his eyes for fear of what he would learn" and later plead ignorance).
Under these circumstances, we conclude that N.J.S.A. 2A:62-16 does not bar plaintiff's negligence action. A jury should assess whether defendant's conduct met the accepted standard of care, and if not, whether the deviation was a proximate cause of Mrs. Marshall's suicide. Safer v. Estate of Pack, 291 N.J. Super. 619, 625 (App. Div.), certif. denied, 146 N.J. 568 (1996).
Reversed and remanded for further proceedings in conformity with this decision.
FUENTES, J.A.D., dissenting.
I write separately to express my disagreement with the ultimate intellectual underpinning of the majority's decision, that N.J.S.A. 2A:62A-16 was not intended "to immunize mental health practitioners from all liability for a patient's suicide, regardless of the reasonable likelihood of suicide or the gravity of the practitioner's deviation from the pertinent standard of care." slip op. at 11. In my opinion, this conclusion cannot be reconciled with the statute's clear, unambiguous language.
N.J.S.A. 2A:62A-16 provides, in pertinent part, that:
Any person who is licensed in the State of New Jersey to practice psychology, psychiatry, medicine, nursing, clinical social work or marriage counseling, whether or not compensation is received or expected, 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.
b. A duty to warn and protect is incurred when the following conditions exist:
(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 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. (Emphasis added.)
As the emphasized language indicates, the statute immunizes a mental healthcare practitioner from "any civil liability" for a patient's self-injurious acts, unless he or she has incurred a "duty to warn and protect," as that phrase is defined in subsection "b."
Here, plaintiff's expert Dr. Steven S. Simring, issued a written report critical of defendant's actions in failing to closely monitor decedent, as warranted by the severity of her illness. Dr. Simring characterized defendant's failure to act as an "abandonment," because "the only action Dr. Klebanov took after the second visit failed to occur was to reschedule it three weeks later, ignoring the urgency of Ms. Marshall's psychiatric condition." According to Dr. Simring, the "urgency" of the situation required defendant to have taken actions that could have prevented decedent's suicide.
There were many other actions Dr. Klebanov could have taken that might have prevented Ms. Marshall's suicide. He should have tried to contact her by phone and ask her to come back to his office. If that did not work, he cou
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