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Marshall v. Klebanov6/22/2005
ld have tried contacting her husband or her family. He could have called the local screening center to send a mental health worker to her home. If he felt that Ms. Marshall would not or could not see him as a private patient, he could have arranged for her to be seen at a local emergency room, or even arranged for hospitalization.
Although Dr. Klebanov appropriately assessed the high risk of suicide, he did not take appropriate action to deal with that risk.
His failure to do so was one major factor that led to Ms. Marshall's suicide. It is my opinion, to a reasonable degree of medical probability, that Dr. Klebanov's actions constitute a deviation from the proper standard of medical and psychiatric care, because he abandoned this patient. He failed to provide her with adequate monitoring and treatment and failed to refer her elsewhere. (Emphasis added.)
As the emphasized language clearly recognizes, plaintiff's theory of liability is predicated upon defendant's inactions in the face of decedent's "high risk of suicide." While this assessment of defendant's professional conduct unquestionably identifies a deviation from the standard of care expected of a psychiatrist under the common law, Fernandez v. Baruch, 52 N.J. 127, 132 (1968), it does not meet the higher standard articulated in subsection "b" of the statute, i.e., that " he 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."
Stated differently, a high risk is not the same as an imminent risk. The word "imminent" refers to an event that is about to occur. In the context of the statute, it speaks of the need to take immediate action in order to avoid the harm described. A "high risk," by contrast, describes the strong likelihood that something may happen. These are not mere semantic distinctions. The language used in the statute delineates a standard that, when satisfied, triggers what is otherwise an unthinkable act by a mental healthcare practitioner: the disclosure of confidential patient information.
The facts here provide a tragic illustration of the difference between "imminent" and "high risk." Had Mrs. Marshall taken her own life upon returning home, the same day she was turned away from her second scheduled treatment visit with defendant, a rational jury could find that the circumstances were such that a reasonable professional in defendant's area of expertise would have believed that she intended to carry out an act of imminent, serious physical violence against herself. N.J.S.A. 2A:62A-16b(2).
Even though under these circumstances there is no actual interaction between doctor and patient, I think sound public policy would not countenance this "ostrich-type" behavior as a defense to this action. That is, a mental healthcare practitioner cannot, through professional malpractice (not seeing the patient), deprive himself of vital information necessary to formulate an opinion about the patient's intentions "to carry out an act of imminent, serious physical violence," and then use this very untenable ignorance as a shield against liability.
Tragically, the pathological forces that led to Mrs. Marshall's demise did not reveal themselves until three weeks after she last saw defendant. Although, under these circumstances, a rational jury could find defendant's failure to see her on the date of her second visit, coupled with the lack of alternative follow-up measures described by Dr. Simring, created a "high risk" that she would take her own life, unfortunately for plaintiff,
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