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DiGiovanni v. Pessel

Decided: February 26, 1969.

JOSEPHINE DI GIOVANNI, PLAINTIFF-APPELLANT AND CROSS-RESPONDENT,
v.
DR. J. F. PESSEL, A/K/A JOHANNES PESSEL, AND DR. JOSEPH C. BORRUS, DEFENDANTS-RESPONDENTS AND CROSS-APPELLANTS, AND CARRIER CLINIC, DEFENDANT-RESPONDENT



Goldmann, Kolovsky and Carton. Kolovsky, J.A.D. Goldmann, S.j.a.d. (concurring in part).

Kolovsky

All members of the court agree that the judgment of dismissal in favor of Carrier Clinic should be affirmed and that the judgment in plaintiff's favor against Dr. Borrus should be reversed. However, I would also reverse the judgment recovered by plaintiff against Dr. Pessel while my confreres are of the view that that judgment should be reduced from $5,500 to $5,000 but otherwise affirmed. I embody herein my reasons for agreeing with the unanimous decisions reached as to Carrier Clinic and Dr. Borrus and my reasons for dissenting from the majority's ruling with respect to the judgment against Dr. Pessel.

Pursuant to an order of temporary commitment (see N.J.S.A. 30:4-37) dated August 17, 1965 entered by the municipal magistrate of Franklin Township, plaintiff Josephine Di Giovanni, then 73 years of age, was committed on August 18, 1965 to the mental hospital operated by defendant Carrier Clinic (Carrier). The order was entered

on the verified application of plaintiff's husband Frank, to which were attached certificates of insanity executed, purportedly under oath, by defendants Dr. Pessel and Dr. Borrus. Plaintiff remained at the hospital until September 16, 1965, having on September 8 executed a "voluntary application" for treatment.

In this action for damages against Carrier and the two doctors, plaintiff charged each of them with negligence and false imprisonment. The case was tried to a jury.

At the close of all the evidence, the trial judge (1) granted Carrier's motion for judgment; (2) dismissed the negligence (malpractice) claims asserted against the two doctors, and (3) ruled that the proofs established as a matter of law (a) that "the conduct of the doctors * * * constituted false imprisonment" because "plaintiff was in fact placed in the Carrier Clinic by virtue of a procedure that was defective"; (b) that plaintiff "was of unsound mind and * * * needed psychiatric help", so that she was not entitled to compensatory damages, and (c) that the jury was to be asked to decide but one question, the amount of punitive damages to be awarded plaintiff.

The conduct of Dr. Borrus which the trial court referred to in its ruling that Borrus had committed the tort of false imprisonment was that he had signed the affidavit at the foot of his certificate in the absence of a notary, verifying his signature the next day in a telephone conversation with the notary public who had then completed the jurat.*fn1

Dr. Pessel, too, did not sign the affidavit of his certificate of insanity in the presence of a notary. According to the doctor, the notary who thereafter completed the jurat on his affidavit was an employee of a hospital who was familiar

with his signature. In addition, and more significant, was the fact that although Dr. Pessel's certificate stated that he had made a personal examination of plaintiff at New Brunswick on August 13, 1965, the truth was that he had last seen her on March 27, 1965.

The jury's verdict as first announced by the foreman was

"We have a judgment against Dr. Borrus, $500, eleven and one vote.

We have a judgment against Dr. Pessel $500 and $5,000, or $5,500.00."

Extensive colloquy then followed between counsel and the court as to the purport of the jury's verdict with respect to Dr. Pessel, during the course of which the jury was asked to retire. Questioning of the jury after it was called back established that the verdicts all represented punitive damages, that the jury "equate[d] the acts of the doctors with respect to the oath as punishable by * * * $500," and that the jury's verdict against Dr. Pessel "was intended to be one verdict against Dr. Pessel in the amount of $5,500.00, $500 by reason of the failure with respect to the oath and $5,000 with respect to the non-examination."

The matter is before us on separate appeals filed by plaintiff and by defendants Pessel and Borrus.

The record reveals no genuine dispute as to the essential and controlling facts.

That plaintiff was in dire need of the hospitalization and treatment which she received and that the treatment benefited her stands uncontradicted. Plaintiff called no medical witnesses other than the two defendant doctors and Dr. Shoemaker of Carrier Clinic. Nor was there any contradictory testimony by lay witnesses. Plaintiff's attorney acknowledged at oral argument that he had been retained by both plaintiff and her husband to prosecute this action, yet he chose not to call the husband or any of the plaintiff's seven children as witnesses. Two of plaintiff's daughter's did testify, under subpoenae by defendants. Their moving description of their mother's unfortunate condition and conduct

prior to her commitment confirms the judgment of the certifying physicians that plaintiff's condition was "such that [s]he should be placed under immediate restraint in an institution," N.J.S.A. 30:4-37. Nothing in plaintiff's own brief testimony is to the contrary.

When the application for commitment was submitted to the municipal magistrate by the husband's attorney, Harold Sklarew, it and the attached certificates were complete and in proper form.

The appointment for plaintiff's examination by Dr. Borrus, an experienced psychiatrist and a diplomate of the American Board of Neurology and Psychiatry, had been made by Ann Di Giovanni, plaintiff's eldest daughter. Miss Di Giovanni testified that it was Mr. Sklarew, her father's attorney, "who recommended Dr. Borrus to examine [her] mother for commitment purposes." Dr. Borrus examined plaintiff on August 15, 1965 and completed and signed his certificate on the same day.

Dr. Pessel is an internist with offices in Trenton. He saw plaintiff for the first time on May 29, 1964. After examining her, he made suggestions for the easing of her various complaints, both physical and mental. Among the 13 suggestions listed in Dr. Pessel's letter of June 29, 1964 to the doctor who had referred plaintiff to him were:

"10. More vacations away from the tension and anxiety of her home.

12. Brandy or wine on retiring to be used as a 'sleeping potion.'"

Plaintiff then visited Dr. Pessel three times in June 1964, once in each of the months of August, September, October, November and December 1964, and January, February and March 1965. The last time that Dr. Pessel saw plaintiff was on March 27, 1965.

There is no contradiction of the doctor's testimony that during those visits he learned from members of her family, and in part from plaintiff herself of her worsening nervous

condition, including, among other things, her inability to sleep, her accusations of infidelity against her ailing 75-year-old husband, her violent behavior and threats of suicide. Tranquilizers were prescribed but, as reported to the doctor by plaintiff's family, her behavior became even worse after March 1965. Some time in July 1965 the doctor suggested that plaintiff be hospitalized in a state hospital to receive the psychiatric help which she needed "very badly." The family decided that they preferred to have the commitment to a private hospital. According to the doctor, he yielded to the importunities of plaintiff's daughter and signed the certificate on August 13, 1965 because of the difficulty the family was having in arranging for plaintiff's examination by local psychiatrists, but did so on condition that a psychiatrist confirm his diagnosis.

The order of temporary commitment, complaint and certificates were filed with Carrier at the time of plaintiff's admission. By letter of August 19, 1965, Carrier forwarded certified copies thereof to the county adjuster of Somerset County with the request that he "process the enclosed temporary order through to the Court for final commitment." The order of August 17 had designated September 2, 1965 as the date for final hearing, but by letter of September 3, 1965 the county adjuster forwarded to Carrier's medical director a notice of final hearing to be held on September 10, 1965, with a request that it be served on plaintiff. (Similar notices were enclosed for service on other patients.)

On September 8, 1965 plaintiff was persuaded by her husband and daughter to sign a "voluntary application." By letter of that date, Carrier notified the county adjuster that it therefore would "not be necessary to process the order through for final commitment." The application for commitment was thereafter dismissed by order of the Somerset County Court dated October 8, 1965 after reciting, inter alia, the original application, the designation of September 10, 1965 as the date for final hearing, and plaintiff's removal from commitment status at Carrier on September 8, 1965.

Plaintiff was discharged from Carrier Clinic on September 15, 1965.*fn2

With this factual background, I now consider the propriety of the several rulings of the trial court involved in the respective appeals.

A. The dismissal of the malpractice and false imprisonment claims against Carrier Clinic.

On appeal, plaintiff does not challenge the dismissal of the malpractice claim against Carrier. The dismissal was proper. There was no proof of negligence, nothing to show that Carrier deviated from accepted and recognized standards in its hospitalization and treatment of plaintiff.

Plaintiff concedes, with respect to the false imprisonment count against Carrier, that the municipal magistrate's order of August 17, 1965 authorized her confinement for the 20 days beginning with August 18. She argues however that the 20 days expired at 12:01 A.M. on September 7, 1965, so that her confinement from that time until at least the time when the voluntary commitment form was signed on September 8, 1965 was without legal warrant. Further, she contends that her execution of the voluntary commitment form on September 8, 1965 did not justify her continued

confinement because her action in signing it was not voluntary and she was induced to sign it by a misrepresentation that she could sign herself out on 72 hours' notice.

We agree with the trial court that both contentions lack merit. The evidence furnishes no support for plaintiff's attempt to repudiate the voluntary commitment signed by her on September 8, 1965. Nor is there any validity to plaintiff's charge that her confinement for the one-day period from September 7 to September 8 was without legal warrant.

While N.J.S.A. 30:4-37 provides that the order of temporary commitment shall authorize the detention of the patient for 20 days, that period may be extended if there is a continuance of the date for final hearing. See N.J.S.A. 30:4-42 which provides:

"A continuance of the final hearing, when endorsed on the complaint, or certified copy thereof, shall be sufficient warrant and authority for the detention of the patient for such period. The aggregate period of continuances shall not exceed three months from the date originally fixed for final hearing. The county adjuster in all class "B" and class "C" cases shall forthwith notify the chief executive officer of the institution in which the patient is confined, of a continuance."

Plaintiff concedes that the authorized period of a patient's detention is extended by a continuance of the date of the final hearing but argues that it has not been shown that the continuance beyond September 2, 1965, the date of final hearing recited in the magistrate's order of August 17, 1965, was "endorsed on the complaint or certified copy thereof" as required by N.J.S.A. 30:4-42.

We perceive no reason to disturb the trial court's findings, which are supported by the proofs, that the records of the Somerset County Adjuster and of the Somerset County Court established not only that the date of final hearing had been duly continued until September 10, 1965 but also that other requirements of N.J.S.A. 30:4-42 had been complied with so as to ...


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