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Fernandez v. Baruch

Decided: June 28, 1968.

LAURA FERNANDEZ, INDIVIDUALLY AND AS GUARDIAN AD LITEM, ETC., PLAINTIFF-APPELLANT, CROSS-RESPONDENT,
v.
RUDOLPH J. BARUCH, DEFENDANT-RESPONDENT, CROSS-APPELLANT, AND JOSEPH JUDD, JR., DEFENDANT-RESPONDENT, CROSS-APPELLANT



On appeal from the Superior Court, Appellate Division.

For reversal -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For affirmance -- None.

Per Curiam

In this wrongful death action, the widow of Pedro Fernandez, as administratrix ad prosequendum, alleges that his suicidal death was due to the malpractice of the defendant psychiatrists. A jury verdict in plaintiff's favor was reversed by the Appellate Division and the case was remanded for a new trial. 96 N.J. Super. 125 (1967). We granted cross-petitions for certification. 50 N.J. 403 (1967).

The facts are set forth in detail in the Appellate Division's opinion. Pedro Fernandez was taken to the Elizabeth General Hospital by the police after he was arrested for making an unprovoked attack upon a friend and attacking and biting two bystanders who attempted to help subdue him. At the hospital he came under the care of defendant doctors who found him to be mentally ill and in need of extensive treatment at a mental institution. They concluded that he possessed "violent and homicidal tendencies." Though the version given by the widow and her brother differs from that given by the defendants, it is clear that the widow was made aware of the defendants' belief that her husband's condition required his commitment to a mental hospital and that she declined to sign commitment papers. Because the Elizabeth General Hospital did not have the staff and facilities to administer the lengthy treatment necessary for Mr. Fernandez,

after about 18 days at the hospital he was returned to the custody of the police who had requested his detention. At this time he was calm and rational, displaying no symptoms of violence. Four days later, while confined in the Union County Jail, Mr. Fernandez hanged himself with his elastic socks.

Plaintiff's case was based on three theories of malpractice liability: (1) that the defendant doctors should have taken steps to make certain that Mr. Fernandez was transferred directly to a mental institution; (2) that the defendant doctors should not have placed him in the custody of the police; and (3) that the defendant doctors should have informed the police that the deceased, although then calm, was suffering from a dangerous mental condition with homicidal-suicidal tendencies, and should have advised the police of the need to continue the administration of a tranquilizing drug, Thorazine, and should have told them of the effects of its discontinuance. The Appellate Division held that the first two theories were insufficient to support plaintiff's verdict and remanded the case for a new trial on the third theory.

We agree with the Appellate Division's disposition of the first two theories for the reasons set forth in its opinion. However, we conclude that the third theory of liability is also insufficient and that the trial court therefore erred in failing to grant defendants' motion for a judgment of dismissal.

The basic question is whether the defendant doctors, in the application of accepted medical practice, knew or should have known that Fernandez presented a suicide risk requiring special precautions. There is no contention that the defendants' diagnostic methods were improper. Rather, it is urged that on the information and diagnosis before them (particularly Fernandez's homicidal tendencies) the doctors should have realized the danger of suicide. The medical expert offered by the plaintiff testified that "one cannot differentiate strictly and say that one case is suicidal and another is

homicidal." He stated it to be his opinion that a patient who exhibited homicidal tendencies also possesses a drive to destroy himself and that if his hostility toward others is frustrated, that hostility would be internalized against himself: "The common denominator is the hostility that exists." Defendants' expert witnesses disagreed with this conclusion. They stated that, under accepted medical practice, a suicide potential does not necessarily accompany homicidal tendencies, and that in fact the two symptoms are antithetical: most homicidal patients would not be suicidal. The Appellate Division found that this conflict in the opinions of the experts was properly to be resolved by a jury.

We think that the testimony of the plaintiff's expert fell short of establishing a medical standard pertaining to the relationship of homicidal and suicidal tendencies and thus the issue should not be considered by a jury. The plaintiff's medical expert did not purport to express accepted medical standards. He prefaced his testimony on the interreaction between homicidal and suicidal drives by the statement, "it is my opinion," and did not say that his view represented the view generally accepted in the profession. Of course, much more than the personal opinion of a medical witness is necessary to establish a standard of accepted medical practice. The expert testimony must relate to generally accepted medical standards, not merely to standards personal to the witness. See Carbone v. Warburton, 11 N.J. 418, 425 (1953). See also, Schueler v. Strelinger, 43 N.J. 330, 346 (1964). Here, the plaintiff failed to produce evidence upon which the jury could find that the consensus of medical opinion required that the defendant doctors envision a suicide potential solely because a mentally ill patient had exhibited violent tendencies toward others. There was no ...


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