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Cowan v. Doering

Decided: August 11, 1988.

MARILYN M. COWAN, FORMERLY KNOWN AS MARILYN M. LOMBARDO, PLAINTIFF-RESPONDENT,
v.
RICHARD DOERING, M.D., ALEXANDRE ACKAD, M.D., AND CAROLE ELTRIDGE, R.N., DEFENDANTS-APPELLANTS, AND ALLWYN J. LEVINE, M.D., LOIS PAPP, R.N., CHRIS TAYLOR, R.N., KATHLEEN BARLICS, R.N., SHARON KROLL, R.N., MARY DOE, R.N., JANE DOE, R.N., BETTY DOE, R.N., AND NANCY DOE, R.N., (THE DOE NAMES BEING FICTITIOUS AND UNKNOWN), AND THE VALLEY HOSPITAL, DEFENDANTS



On certification to the Superior Court, Appellate Division, whose opinion is reported at 215 N.J. Super. 484 (1987).

For affirmance -- Chief Justice Wilentz and Justices Handler, O'Hern, Garibaldi and Stein. For reversal and remandment -- Justices Clifford and Pollock. The opinion of the Court was delivered by Handler, J. Clifford, J., dissenting. Pollock, J., joins in this opinion.

Handler

What are we to make of Marilyn Cowan's defenestration? When Ms. Cowan jumped from a second-story hospital room, she was a patient being treated for an overdose of sleeping pills, taken in an earlier suicide attempt that same morning. Her jump from the window left her with serious injuries.

Ms. Cowan came to believe that others, not she, were responsible for her behavior and resultant injuries. She sued her treating physician, Dr. Alexandre Ackad, registered nurses Kathleen Barlics and Carole Eltridge, and the Valley Hospital, alleging that these defendants committed malpractice in not preventing her leap from the room.*fn1 She also sued Dr. Richard Doering for malpractice, alleging that he negligently prescribed the sleeping pills for her, knowing of her suicidal propensities. Following a trial Ms. Cowan was awarded $600,000 for her permanent injuries.*fn2

The defendants' claim that the trial court committed reversible error by refusing to charge the jury that the plaintiff could be considered comparatively negligent was rejected by the Appellate Division. 215 N.J. Super. 484 (1987). We granted certification, 107 N.J. 634 (1987), to determine whether the

failure to charge the jury on comparative negligence constitutes reversible error.

I.

The sequence of events that culminated in plaintiff's traumatic injuries began in January 1981 when the plaintiff started working as a registered nurse at Valley Hospital. Shortly thereafter, she met defendant Richard Doering, and in March 1981, began to have a romantic relationship with him. Both were married, but were experiencing difficulties in their respective marriages. Although Doering and Cowan's relationship had sexual aspects, because of Doering's impotency the two did not have intercourse.

On the night of April 10, 1981, depressed over the problems in her marriage and her failure to have a baby, plaintiff ingested seventeen nembutal (sleeping) pills prescribed by her gynecologist. After taking the pills, she telephoned Doering, who detected a slurring in her voice. Doering immediately called back and notified plaintiff's husband, who was home at the time and who rushed plaintiff to Valley Hospital.

Doctors in the emergency room pumped her stomach and she was placed under the care of defendant, Dr. Alexandre Ackad. While in the hospital, Ms. Cowan attempted to disconnect her intravenous (IV) tubes and remove the chest and wrist restraints. Concern over the plaintiff's mental condition led Dr. Ackad to bring in Dr. Alwyn Levine, a psychiatrist, to begin counseling. Dr. Levine concluded that plaintiff was not actively suicidal and hence not committable. Ms. Cowan was released on April 12, but continued to see Dr. Levine twice-a-week on an out-patient basis.*fn3

Plaintiff continued her relationship with Doering as intensely as before this first suicide attempt. In late May or early June she asked Doering to get her nembutal, complaining that she was having problems sleeping. Dr. Levine had refused to treat the plaintiff with any drugs, believing that she had a potential to overdose. Similarly, Dr. Doering, who was aware of her prior overdose, refused at first. She made two more requests for nembutal in early June. Again, Doering refused. Finally, however, after a fourth request, Doering relented and wrote plaintiff a prescription for nembutal.

On the night of June 23, Doering visited plaintiff at her home while her husband was away. For the first and only time in their relationship, Doering was able to, and did, have intercourse. The parties had different reactions to this occurrence; for the plaintiff their romance had reached its climax, for the defendant its denouement. The next morning, plaintiff called Doering at home. She had believed that the events of the prior evening were significant, increasing her hopes that he would leave his wife, but was depressed after a morning therapy session with Dr. Levine. Ms. Cowan told Doering that she was thinking of moving to her parents' home in Connecticut. To her chagrin, he did not dissuade her, but rather told her that he felt that her leaving might be for the best, and that he would not leave his wife.

After hanging up, plaintiff took all ten of the nembutal pills that Doering had supplied. She then locked all the doors to her house to prevent anyone from coming in, yet also called Doering. From the sound of her voice he feared that she had again overdosed, and immediately called the Ridgewood Police. Again, plaintiff was taken to the emergency ward of Valley Hospital, where she was again placed under the care of Dr. Ackad.

Later in the day Dr. Ackad had plaintiff moved into the Intensive Care Unit (ICU), to an area that was visible from the nurses station. He explained that this was done to monitor the

effects of the pills she had ingested and to enable the nursing staff to watch her more closely. Restraints were placed on her chest and wrists, and she was hooked up to a cardiac monitor and an intravenous feeding tube. She attempted to disconnect her IV tubes and to remove the restraints. The plaintiff was described alternatively as somewhat disoriented and groggy, but also as alert and oriented to time and place. At approximately 10:15 p.m., Dr. Doering visited plaintiff in her room for approximately fifteen minutes. The record does not indicate what was said or what actions were taken at this time. However, when Doering left, he closed the door, contrary to ICU policy. Shortly thereafter, the attending nurse for Cowan in the ICU, defendant Barlics, entered plaintiff's room and discovered that she was not in bed. Barlics called in her supervisor, the charge nurse, defendant Eltridge. They saw that the window was open and then heard moaning from outside. They looked out the window and saw plaintiff lying on the ground, approximately twelve feet below. Plaintiff was taken back into the Emergency Room and treated for her injuries. The nursing staff, which had been trying to reach Dr. Levine during the early evening hours, was finally able to speak directly with him at 11:35 p.m., just one hour after plaintiff jumped from the window. He immediately ordered that a "suicide watch" be instituted for plaintiff Cowan.

Plaintiff suffered permanent injuries. The injuries to her back required the insertion of two steel rods, which limit her movements, make her unable to lift anything over ten pounds, and cause her pain and suffering. These injuries were the basis for her damages claim against defendants.

The plaintiff contended that in several respects the individual defendants were negligent with respect to her care. She contended that Dr. Ackad's failure to order such a "suicide watch" after the June 24th overdose constituted medical malpractice; under a "suicide watch" the plaintiff would receive constant attention that would have prevented her jump. The basis for the malpractice action against nurses Barlics and Eltridge was

their failure properly to monitor her condition and so prevent her jump. Her claim against Dr. Doering was predicated upon his prescribing the nembutal knowing of plaintiff's suicidal tendencies. All defendants attempted to offer proofs of contributory negligence as an affirmative defense.

At trial, the expert witnesses differed over whether plaintiff's suicidal behavior was "genuine" or "manipulative." Plaintiff's expert witness, Dr. Seymour Kuvin, testified that her actions were genuine, that is, that she really wanted to kill herself. But Dr. Ari Kiev, a defense expert witness, testified that the overdosing incidents, although self-destructive acts, were suicide attempts of a very low degree of severity, in that the means used were not irreversible and that plaintiff herself contacted someone who could and did become aware of what she had done. From these circumstances, Dr. Kiev concluded that plaintiff's overdoses and leap from the window were attempts at manipulation -- a "dangerous kind of game" designed to extort desired behavior from others.*fn4

The evidence established, and the experts agreed, however, that Ms. Cowan had engaged in two suicide attempts, even if they were "of low severity," prior to her jump from the window, and that she was prone to self-damaging acts. Further, the expert psychiatric witnesses agreed that plaintiff suffered from a "borderline personality disorder," characteristics of which include impulsiveness and unpredictability, feelings of emptiness, intense and unstable interpersonal relationships, and physically ...


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