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Gaido v. Weiser

Decided: June 29, 1988.

ANNA GAIDO, ADMINISTRATRIX AD PROSEQUENDUM AND GENERAL ADMINISTRATRIX OF THE ESTATE OF PETER GAIDO, PLAINTIFF-APPELLANT,
v.
SHELDON WEISER, DEFENDANT-RESPONDENT, AND ST. MARY'S HOSPITAL, CARRIER FOUNDATION, PETER BRYAN-BROWN, JAN KURDWANOWSKI AND MICHAEL BRAND, DEFENDANTS



On appeal from the Superior Court of New Jersey, Law Division, Bergen County.

Michels, Shebell and A. M. Stein. The opinion of the court was delivered by Michels, P.J.A.D. Shebell, J.A.D., dissenting.

Michels

Plaintiff Anna Gaido, Administratrix ad Prosequendum and General Administratrix of the Estate of Peter Gaido, appeals from a judgment of the Law Division entered in favor of defendant Sheldon Weiser (Dr. Weiser) on a molded jury verdict of no cause for action and from a denial of her motion for a new trial in this medical malpractice wrongful death action.

The facts giving rise to this appeal may be summarized as follows: in or about April 1965 decedent Peter Gaido, who resided with his plaintiff wife in Lodi, New Jersey, suffered a severe bout of depression which eventually led to his hospitalization in June of that year. During his stay at Hackensack Hospital, decedent attempted to commit suicide by cutting his wrists. As a result of this incident, decedent received regular psychiatric counseling for approximately one year and was placed upon anti-depressant medication. Although decedent stopped meeting with his psychiatrist in 1969, he continued taking the anti-depressant medication on a low dosage maintenance program.

In September 1981, decedent began experiencing numbness and tingling in his extremities. After these symptoms continued to worsen, decedent was examined by defendant Dr. Michael Brand, a neurologist, and placed in defendant St. Mary's Hospital in Passaic, New Jersey for evaluation. Although Dr. Brand diagnosed decedent's condition as multiple sclerosis, his neurological symptoms were greatly reduced as a result of treatment with the drug Prednisone.

Decedent returned from the hospital in early October 1981, and continued to make noticeable improvement. Around Christmas of that year, however, decedent began to express fears that his condition was worsening and became increasingly anxietal over his inability to support his family because he could not yet return to work. By January 1, 1982, decedent's depression was so severe that he repeatedly asked to be hospitalized "because he was afraid he was going to hurt himself."

Accordingly, plaintiff placed him in the psychiatric unit at St. Mary's Hospital under the care of defendant Dr. Jan Kurdwanowski, a psychiatrist. While hospitalized, decedent attempted to commit suicide on January 9, 1982, by lacerating his wrists with a broken light bulb. Consequently, he was transferred on January 14th to defendant Carrier Foundation (Carrier) in Belle Meade, New Jersey for more extensive psychiatric therapy.

At Carrier, decedent was placed under the care of defendant Dr. Peter Bryan-Brown, a psychiatrist. After taking an extensive personal history of decedent, Dr. Bryan-Brown placed him in the institution's "closed unit" due to his suicidal ideations. Dr. Bryan-Brown diagnosed decedent as having a "major recurrent depressive disorder", which meant that he might attempt to commit suicide again sometime in the future. Thereafter, a plan of treatment was implemented which included the daily administering of Ludiomil, an anti-depressant medication, as well as individual and group psychotherapy. As a result of this treatment, decedent's mood improved significantly and he was transferred to the open unit of Carrier on January 30, 1982.

On February 5, 1982, decedent was discharged from Carrier and given a prescription for Ludiomil and a sedative, Dalmane. Although Dr. Bryan-Brown considered suicidal risk to be minimal at this time and believed that decedent's prognosis was good, he nevertheless conditioned his discharge upon follow-up psychiatric treatment. Accordingly, plaintiff contacted defendant Dr. Sheldon Weiser on February 2, 1982 and the parties agreed to arrange an appointment once decedent was discharged.

On February 5, 1982, plaintiff called Dr. Weiser after her husband had returned from Carrier and an appointment was scheduled for February 11, 1982. Although decedent seemed fine during the day, he awoke during the night despite having taken a sedative and could not fall back to sleep, a trait which he had exhibited prior to entering the hospital. When plaintiff

called Dr. Weiser about this occurrence the following day, he attributed it to the anxiety of returning home. On February 6, 1982, decedent awoke in the middle of the night, however, and expressed to his wife the familiar concern of not being able to return to work. A similar situation occurred again on the following night of February 7, as decedent appeared to be regressing into an anxietal state over his health and financial ability.

The fact that these warning signs were returning in spite of decedent's regimen of medication compelled plaintiff to call Dr. Weiser on Monday morning, February 8, 1982, and ask that he see her husband that day. Dr. Weiser, however, assured plaintiff that her husband would be fine and that in any event he did not have any free appointments for that day. Although Dr. Weiser asked plaintiff whether decedent was "taking the medication" and apparently based his decision upon that fact, he later conceded at trial that he had no idea what medication was prescribed at Carrier, nor had he requested any information or records from the hospital or Dr. Bryan-Brown.

After a relatively uneventful Monday, decedent again woke up and engaged his wife in the same repetitive conversation regarding work and his physical well-being; this time even longer than before. Although the couple eventually fell back to sleep, plaintiff was awakened Tuesday morning at 6:00 a.m. by her daughter, Lisa, who told her that decedent was lying on the dining room floor and would not wake up. When plaintiff walked into the dining room, she observed a bottle of liquor on the table and was shocked to find her husband lying there in an alcoholic stupor. Eventually, she was able to rouse decedent and accompany him into the bathroom where he was sick for some time. When plaintiff asked him why he had done this, "[h]is reply was that he felt so bad when he woke up that he thought that if he had a drink, it would make him feel better."

This incident was particularly alarming to plaintiff because her husband rarely consumed more than one or two drinks per

year. After putting decedent to bed, plaintiff called Dr. Weiser and informed him of this extremely uncharacteristic behavior and again requested that he see the decedent that day. Dr. Weiser replied that he did not have any open appointment time and that in any event the decedent "probably [would not] drink again since he was not a drinker." Despite plaintiff's insistence that her husband needed immediate psychiatric attention, Dr. Weiser agreed to prescribe something "to take the edge off of things" and instructed her druggist to fill a prescription for a tranquilizer known as Tranxene. This, he advised her, would be safe to take in conjunction with the anti-depressant Ludiomil.

Plaintiff gave her husband Tranxene two times that day as per the prescription and he rested in bed for the remainder of February 9, 1982. Although decedent did not awaken during the night, plaintiff rose at 5:00 a.m. only to find that he had inexplicably left the house and had taken the car without leaving a note as to his whereabouts. When decedent returned home at 7:00 a.m. and plaintiff angrily expressed her concern over his sudden disappearance, he calmly responded that he was just riding around and had stopped for breakfast in order to think things over. Plaintiff called Dr. Weiser and expressed great concern over her husband's erratic behavior and implored him to see decedent that day. However, once again Dr. Weiser stated that no appointments were available for February 10 and that decedent would be all right until he saw him the next day at his scheduled appointment. Plaintiff accepted these assurances as she had in the past.

That afternoon, plaintiff accompanied her husband to the office of Dr. Brand for a neurological examination. During the course of this examination, decedent did not impress the doctor as being suicidal, leading him to conclude in his records, "Depression is under control." Dr. Brand's diagnosis revealed that decedent's affliction was in remission and he advised decedent that he would be able to return to work. Although decedent agreed that this was good news, he continued to express severe doubts about his physical condition on the ride home.

After dinner that evening, decedent advised plaintiff that he was going out to a nearby department store. He never returned. At approximately 4:00 p.m. the following day, February 11, 1982, Sergeant Dennis Barry of the Ridgefield Park Police Department located decedent's body lying along the riverbank of Over Peck Creek, a tidal branch of the Hackensack River in Ridgefield Park, New Jersey. A bottle of Johnny Walker whiskey partially filled with river water was lying nearby. A subsequent toxicological analysis of the body revealed an alcohol level of .252% found in the brain tissue and .23% in the blood. Dr. Marlene Lengner, the Bergen County Medical Examiner, performed an autopsy of the body on February 12, 1982. Due to the large amount of water found in decedent's stomach, Dr. Lengner concluded that the decedent had drowned as indicated in the death certificate. Under the section captioned "Cause of Death" on the certificate, Dr. Lengner checked off the box marked "Accident."

Plaintiff instituted this medical malpractice wrongful death action against Dr. Weiser, St. Mary's Hospital, Carrier, Dr. Bryan-Brown, Dr. Kurdwanowski and Dr. Brand. She charged that Dr. Weiser deviated from accepted standards of medical care by negligently refusing to provide treatment and diagnosis of decedent and negligently prescribing the drug Tranxene, thereby proximately causing decedent's death. Plaintiff also charged that Dr. Bryan-Brown and Carrier were negligent in failing to arrange or provide proper follow-up psychiatric care for decedent after his discharge from Carrier. Plaintiff voluntarily dismissed the action against St. Mary's Hospital, Dr. Kurdwanowski and Dr. Brand prior to trial. The case went to trial against Dr. Weiser, Dr. Bryan-Brown and Carrier. At the conclusion of the proofs the jury found that Dr. Bryan-Brown and Carrier were not negligent. The jury, however, found that Dr. Weiser was negligent, but that his negligence was not a proximate cause of decedent's death. The trial court thereupon molded the jury verdict in favor of defendants for no cause for

action. Plaintiff's motion for a new trial with respect to Dr. Weiser was denied and this appeal followed.

We have carefully considered the record in light of the arguments presented and are satisfied that the evidence in support of the jury verdict is not insufficient, that the determination of the trial court and the motion for a new trial does not constitute a manifest denial of justice and that all issues of law raised are clearly without merit. R. 2:11-3(e)(1)(B), (C) and (E). However, further comment is necessary with respect to some of plaintiff's contentions.

I.

First, plaintiff contends that the following preliminary instructions of the trial court were incorrect and prejudicial:

Plaintiff's counsel did not immediately object to this remark. Rather, following the lunch recess, he went directly into his opening statement and posed the following issue to the jury:

Now, when you are called upon to deal with the question of accident or suicide, the defense argues accident; they say A: He just fell in the river. You will of course consider the -- you will, of course consider the physical circumstances to the extent that the evidence is presented to you, consider this place and what business Mr. Gaido had there; this dirty, filthy river edge. This place that no one would go unless they had a dark purpose. You will consider the fact that Mr. Gaido had almost just about four weeks to the day before he was found in that river, cut himself in a suicide attempt four weeks earlier, that he had suicidal feelings while in the hospital for some time at the beginning of his treatment in Carrier or a sense of hopelessness and all, that he got a little better and went up and down and finally got out of the psychiatric hospital six days before -- six or seven days before his body was found and you will not be asked to reach a conclusion to a scientific certainty like they do in laboratories where if you have one out of a hundred, that doesn't square up then you can't call that proof, that's not the standard of proof and Judge O'Halloran has told you that you're not even going to have to reach that conclusion or decide this question even beyond a reasonable doubt like the

standard is in criminal court but you're going to have to deal with probabilities; what's most likely, what's most probable? (Emphasis added).

You'll hear the testimony of Dr. Whittington and he'll tell you his professional opinion, his professional -- he's a psychiatrist, the overwhelming probability that Mr. Gaido committed suicide, not that he had an accident in a filthy place where he had no business, walked around with booze in him and fell in the river, a place where he had no reason for being. You'll hear my comments and the testimony about that. It's purely a question of what's most likely. (Emphasis added).

At the commencement of the next day of trial, however, plaintiff asked the trial court to correct its statement concerning suicide after her expert witness, Dr. Horace Whittington, testified. Plaintiff reasoned that her cause of action encompassed more than a claim that the doctors' negligent conduct proximately caused decedent to commit suicide. Alternatively, plaintiff argued that the pleadings and expert report submitted by Dr. Whittington supported the proposition that decedent's untreated depression significantly impaired his judgment and caused him to act with reckless indifference to the consequences. Thus, contrary to the preliminary comments by the trial court, plaintiff argued that she would not have to prove that decedent purposefully took his own life in order to establish proximate cause under this theory of liability.

Dr. Whittington testified that decedent "committed suicide, that he purposefully drowned himself." Although his report refers to the death of decedent as "self-induced", Dr. Whittington also testified that individuals suffering from profound depression are likely to expose themselves to danger and risks they normally would not take. Thus, while an ensuing death may bear all of the characteristics of a traditional accident, a "psychological autopsy" of the victim's likely state of mind at the time of his demise may reveal a deliberate intention to "get in harm's way." Therefore, Dr. Whittington was also of the opinion that decedent's judgment was so impaired at the time that he intentionally exposed himself to the risk of death by

drinking an excessive quantity of alcohol near a "rather remote, dangerous area."

Prior to Dr. Whittington's testimony, defendants' counsel objected that his theory of causation based upon "impaired judgment" went beyond the scope of the expert report. The trial court disagreed, finding the pleadings as well as the written report to be consistent with plaintiff's claim that decedent's death was caused by his untreated mental condition, whether or not he had formed a specific intent to commit suicide. However, the trial court denied plaintiff's request to retract the preliminary comment regarding suicide at this time because it "want[ed] to hear all the evidence before [giving] any instruction along those lines to the jury."

Despite plaintiff's further request that an amendatory instruction be given before the testimony of Dr. Lengner, who was subpoenaed by plaintiff's counsel to testify as to why she checked off "Accident" on the death certificate, the trial court did not do so until the end of plaintiff's case-in-chief, at which point he instructed the jury as follows:

Ladies and gentlemen, before we continue with the evidence, I want to correct something that I said at the very start of the trial. When I was selecting the jury and I gave you a little thumb nail sketch of what this case was about, I may have said that it was claimed by the plaintiff that her husband committed suicide and when I was giving you my preliminary instructions after you eight had been selected, I told you that I was going to prepare a jury verdict form of questions and the form of your verdict would really be to answer some or all of those questions and I indicated to you that the first question on the form would probably be "Did Mr. Gaido commit suicide?" The implication from everything that I said to you there being that that was the only claim in the case. Well, I was mistaken and I had said that to you before I actually heard the evidence and testimony. Suicide of course is the deliberate or intentional self-destruction. The plaintiff's claim in this case is that her husband probably committed suicide but her claim goes beyond that, it's broader than that. It goes beyond that because she claims her husband died because of an impaired judgment due to his mental illness which she says had been negligently treated by the defendants or either of them. So her claim is broader than pure suicide, if there's such an expression.

Consistent with this instruction, the trial court did not make a legal distinction between death by suicide or accidental death in

its final charges to the jury. Rather, the trial court summarized plaintiff's case as follows:

Whatever misconception of plaintiff's theory of the case may have been created by the trial court's preliminary comment to the jury, it was more than adequately dispelled by the trial court's subsequent amendatory instructions. As we stated in Ardis v. Reed, 86 N.J. Super. 323, 333 (App.Div.1965), aff'd o.b. 46 N.J. 1 (1965):

A charge must be considered as a whole. Stackenwalt v. Washburn, supra, 42 N.J. [15] at p. 26. When the court's charge, considered as a whole, presents the law fairly and clearly to the jury, there is no ground for reversing the judgment, though some of the ...


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