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Fernandez v. Baruch

Decided: July 13, 1967.


Conford, Foley and Leonard. The opinion of the court was delivered by Leonard, J.A.D.


This is a wrongful death action wherein the widow Laura Fernandez (plaintiff herein) seeks recovery as administratrix ad prosequendum for the suicidal death of her husband Pedro Fernandez (decedent) which she alleges was due to the malpractice of defendant psychiatrists. Defendants Rudolf J. Baruch and Joseph Judd appeal from a judgment in the amount of $35,000 entered against them following a jury trial. No appeal is taken from the dismissals entered by the trial court in favor of third-party defendants Elizabeth General Hospital (hospital) and Harvey Halberstadter.

On May 25, 1962 decedent was arrested on three counts of assault and battery, as a result of an altercation in which he attacked a friend with a knife without apparent provocation. He also bit and attacked two bystanders who attempted to help subdue him. The police took decedent directly from the scene of the conflict to the hospital, where he remained until June 12, 1962, when he was discharged into the custody

of the police. The next day he was arraigned in municipal court, and then he was transferred to the Union County jail where, on June 16, 1962, he hanged himself in his cell by means of his elastic socks.

The gist of the cause of action asserted against defendants was their negligence in failing to take all steps necessary for decedent's commitment before his release to the police, or to warn the latter about his dangerous mental condition and need for medication.

Upon admission decedent was placed on the neuropsychiatric service of the hospital, in which unit defendants alternated as chief and assistant in charge. Because of a shortage of bed space he was put in the regular men's surgical ward with a number of other patients. Initially decedent had been given 100 milligrams (mg.) of a tranquilizing drug known by the trade name of thorazine (chloropromazine hydrochloride). Thereafter he was administered a small dosage (50 mg.) of this drug every four hours "as necessary," not to exceed 200 mg. at any one time. One evening when he appeared especially agitated he was given a 100 mg. dosage. The administration of this drug was discontinued on the date of decedent's discharge. During his stay in the hospital he was generally calm; he was permitted use of ordinary eating utensils and normal bathroom privileges; his bed was located near a window, and he was not restrained.

Shortly after decedent's admittance to the hospital defendants ascertained that during the preceding four months he had on numerous occasions complained to his wife of insomnia, of frequent headaches, and of disturbed reactions to loud noises. It was their opinion that decedent possessed "violent and homicidal tendencies." They concluded that his illness was deep-rooted and not easily curable, and that he required psychiatric treatment and therapy which was available at a state mental institution but which could not be provided by the limited staff and facilities of a general hospital such as Elizabeth. Defendants testified that the

hospital policy at the time was not to permit patients on the neuropsychiatric service to remain under its hospital care for longer than three to four weeks, not only because of an inability to provide adequate extended treatment, but also because of the bed space shortage.

Consequently defendants attempted to have plaintiff commit decedent to a state mental institution, pursuant to N.J.S.A. 30:4-27, discussed infra, and requested her to sign the necessary commitment papers. Both doctors testified that either directly or through intermediaries they informed plaintiff of the seriousness of decedent's mental illness and of their opinion that he should be confined to a mental institution. Several nurses testified that they requested plaintiff to sign commitment papers and she refused. Her reason was that she wanted decedent to stay in the hospital which was nearer to her home than the state hospital at Marlboro; thus it would be easier for her to visit him more often.

Dr. Judd testified that several days before decedent's discharge he told plaintiff directly that her husband could not stay in the hospital, but that he required treatment at a state hospital and that "she had to commit him because there was a [police] detainer on him and she knew it and there was nothing else for him to do except to go to jail if she didn't send him to a state hospital." He further testified that he told her to "take a few days to think it over," and he was "never contacted by her again."

Plaintiff testified that she never spoke to either defendant directly about the necessity for commitment and that no one informed her at the hospital that if she did not have her husband committed he would be taken to jail. On cross-examination, however, she did confirm a conversation with the head nurse in which she indicated to the nurse her willingness to sign the papers if it were no longer possible for her husband to remain at the hospital.

Plaintiff's brother testified that while accompanying her to the hospital to visit decedent several days before his discharge

one of the nurses brought to them the blank commitment forms for her to sign but plaintiff refused for the reason given above.

In addition, Dr. Baruch testified that when he became aware that plaintiff would not cooperate and sign the commitment papers he telephoned the police detective assigned to the case, Sergeant Krug, and told him of their frustrated efforts and asked him if he would help them by taking decedent back to police headquarters and "see to it that he would be committed from there." The officer told him: "We will see what we can do; we will take care of it * * *."

Sergeant Krug testified that he stopped at the hospital on June 10, 1962 and was informed by a nurse that the recommendation for commitment had been made by the doctors and that the papers were there awaiting plaintiff's signature. He subsequently visited plaintiff and urged her to have decedent committed to a state mental institution, but without success.

On the day decedent was discharged from the hospital and transferred to the custody of the police plaintiff and her brother went down to the jail to bring him his clothes. At that time the police captain on duty offered her a blank set of commitment papers and suggested that she sign them to avoid having her husband remain in jail. That night she attempted to call Dr. Baruch and a female intern who had been associated with the case, but she was unable to locate them at the time. Plaintiff and her brother consulted a friend and then attempted to contact an attorney to assist them, but she did not attempt to again communicate with defendants and she never signed the papers.

Defendants primarily contend that plaintiff did not prove malpractice on their part. They allege that plaintiff's witnesses testified to no acts or omissions on their part which constituted a deviation from the accepted standard of medical care. We ...

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