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McNesby v. State

Decided: March 30, 1989.

RITA MCNESBY, GENERAL ADMINISTRATRIX AND ADMINISTRATRIX AD PROSEQUENDUM OF THE ESTATE OF CHARLES MCNESBY, DECEASED, PLAINTIFF-APPELLANT,
v.
STATE OF NEW JERSEY, DEPARTMENT OF HUMAN SERVICES, DEFENDANT-RESPONDENT



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

King, Ashbey and Skillman. The opinion of the court was delivered of King, P.J.A.D.

King

This case involves the liability and immunity of the State of New Jersey for a patient's death at the Ancora Psychiatric Hospital. We conclude that the State was immune from liability under N.J.S.A. 59:6-6(a)(2), governing therapeutic decisions about confining of the mentally ill, for the death of the plaintiff's decedent by suicide (self-immolation). This subsection of the Tort Claims Act specifically confers immunity for liability from claims resulting from "the terms and conditions of the confinement for mental illness." We uphold the grant of immunity and affirm summary judgment in favor of the State.

On July 20, 1984 Judge Wallace signed an order involuntarily committing Charles McNesby, the decedent, to Ancora pending a final hearing. The decedent's medical history has not been fully developed in this record but from plaintiff's complaint we know the decedent had a history of psychiatric illness. The decedent had spent a few days in Ancora in December 1977 with a diagnosis of drug-related psychotic organic brain syndrome. Hospitalized again in North Carolina in 1982, the

decedent apparently attempted suicide then and again on December 10, 1983.

After the 1983 attempt, the decedent was admitted to Cooper Medical Center in Camden. After a short stay in Cooper Medical Center, the decedent was admitted to Ancora in December 1983 and released in January 1984. The decedent again attempted suicide, an attempt that led to the commitment order of July 20, 1984 to Ancora.

When the decedent was first admitted to Ancora, suicide precautions were maintained. But on July 31, eleven days after commitment, the precautions were discontinued because the decedent's treatment team believed that "there was no indication of suicidal intent or attempt." The decedent then was transferred to a "step-up" or more open ward on August 3, 1984.

An affidavit submitted by Roberta Reyes, M.D., stated that when the decedent was first admitted, the suicide precautions required keeping him in a staff member's sight at all times. On July 31 a social worker, his nurse and his psychiatric resident reviewed the decedent's case. They determined that suicide precautions were no longer necessary and that the decedent could be transferred into a "step-up" ward for patients functioning at a higher level. The previously prescribed suicide precautions would not be used in such a ward. Pursuant to the hospital's policy, the decedent was still observed for 72 hours more before being transferred from his original "closed" or more secure ward. On August 3 the transfer was made.

Patients in the "step-up" ward were given grounds privileges. This meant unsupervised access to the hospital grounds from 11:30 a.m. to 1:30 p.m. and from 5:30 p.m. to 7:30 p.m. The decedent enjoyed those privileges between the date of the transfer to the new ward, August 3, and the date of his suicide attempt, August 12. Two days before that attempt, on August 10, the decedent appeared before the late Judge Sandman for his final hearing, contemplated by the original complaint order.

On August 10, Judge Sandman signed an order directing that the decedent be discharged "pending placement." See R. 4:74-7(g)(2); In re S.L., 94 N.J. 128 (1983). Dr. Reyes's affidavit said that when patients are discharged pending placement, they are not released from the institution until suitable placement is found. Since suitable placement was not available immediately, the decedent was kept at the hospital. The complaint alleges that the decedent did not return home because his family, fearing another suicide attempt, refused to take him.

In her complaint the plaintiff claims that the State carelessly allowed the decedent to obtain gasoline from the garage area of the hospital and set himself afire. The depositions provide some factual background. One deponent, Leroy Guldin, a member of the security staff, found the decedent standing in the woods about 40 feet from the automotive pool garage. James Kaminski's deposition established that the decedent was found badly burned, but still standing, and that the decedent ...


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