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Ahn v. Kim

May 16, 1995

KEJOO AHN, INDIVIDUALLY AND AS GUARDIAN OF HO AHN, AND AS EXECUTRIX OF THE ESTATE OF HO AHN, DECEASED, PLAINTIFF-APPELLANT,
v.
DR. CHUNG KIM AND STANLEY BIRCH, DEFENDANTS, AND THE CARRIER FOUNDATION, THE CARRIER CLINIC MEDICAL ASSOCIATION, DR. BOHDAN CEHELYK, FELICIA SCHILP, R.N., MARY MANUELLA, R.N., IRVIN KELLY, BARBARA HIGGINS, JOHN DOE AND JANE ROE (FICTITIOUS NAMES), DEFENDANTS-RESPONDENTS.



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

Approved for Publication May 19, 1995

Before Judges King, Muir, Jr. and Eichen. The opinion of the court was delivered by King, P.j.a.d.

The opinion of the court was delivered by: King

KING, P.J.A.D.

This is a malpractice case against a psychiatric hospital, The Carrier Clinic, and members of its staff arising from the disappearance of a newly-admitted patient to an open ward on March 22, 1988. The patient was never found and was judicially declared dead five years later. The malpractice trial resulted in a verdict for all defendants and the plaintiff widow appeals. We find trial error requiring a reversal and a new trial.

II

The plaintiff contended that the defendants were negligent in three ways in treating this suicidal patient: (1) admission to an "open" rather than a "closed" ward with inadequate suicide precautions, (2) poor nursing supervision, and (3) ineffective security and search procedures, once the patient was discovered to have eloped.

This is the procedural background of the case. Dr. Ho Ahn disappeared from Carrier Clinic (Carrier) on March 22, 1988. On August 26, 1988 Kejoo Ahn (Kejoo), his widow, was appointed guardian of Dr. Ahn. She was also named his executrix by later appointment. One year later, on March 22, 1989, Kejoo filed a complaint against Carrier and various John Doe fictitious defendants. The complaint was filed by Kejoo in her guardianship capacity and also individually for her alleged emotional injury.

On March 15, 1990 Kejoo filed an amended complaint adding Dr. Bohdan Cehelyk, Dr. Chung Kim, Irvin Kelly, Nurse Felicia Schilp, Nurse Mary Manuella, Barbara Higgins, Stanley Birch, and retaining Joe Doe and Jane Doe (fictitious names) as defendants. Plaintiff eventually also joined as defendants two security personnel, Ellsworth Rand and Irvin Kelly. Dr. Chung Kim, of Carrier's Staff, and Stanley Birch were dismissed from the case prior to trial.

In a separate action and a March 30, 1993 plenary hearing, Dr. Ahn was declared dead pursuant to N.J.S.A. 3B:27-1. *fn1 The order was entered on June 14, 1993 and declared Dr. Ahn dead as of March 23, 1993, five years after his disappearance. Kejoo then was appointed executrix of his estate by the Surrogate of Ocean County and qualified to bring a wrongful death action.

Meanwhile, on May 18, 1993, Kejoo had moved to amend the first amended complaint to add a claim for wrongful death and to name Carolyn Barter, R.N., as an additional defendant. In a June 17, 1993 order the Law Division Judge granted the motion to add the wrongful death claim but denied the motion to name Barter as a defendant.

Trial began on October 12, 1993 before a Judge and a jury. After hearing testimony from Kejoo and her son, and in camera arguments from counsel, the trial Judge dismissed Kejoo's claim for emotional distress. At the close of plaintiff's case, defendants Kelly and Rand, security personnel, successfully moved to dismiss the claims against them.

On November 1, 1993 the jury found that Nurse Manuella, the nursing staff at Carrier, and the security staff were negligent. The jury exonerated Dr. Cehelyk, Nurse Schilp and security officer Higgins. However, the jury found, by a 7-1 vote, in answer to a special interrogatory, that plaintiff failed to prove causation and wrongful death, i.e., that Dr. Ahn committed suicide shortly after leaving Carrier. Judgment was entered for all defendants on November 16, 1993.

III

We review the facts as presented to the jury. Dr. Ahn was born and educated in Korea, where he served as a medical officer with the Air Force of the Republic of Korea. In 1974 Dr. Ahn emigrated to the United States with his wife. He served a residency in anesthesiology at Allegheny General Hospital in Pittsburgh. Following his residency, he was employed as a staff anesthesiologist at Misericordia Hospital in Philadelphia. He then served as a clinical fellow in the Department of Cardio-Thoracic Anesthesia at Cleveland Clinic Foundation in Ohio. After his service at the Cleveland Clinic, he served as a staff anesthesiologist at Hillcrest Hospital in Mayfield, Ohio. At the time of his disappearance in March 1988, Dr. Ahn had served as a staff anesthesiologist at Community Memorial Hospital in Toms River since the fall of 1984. He earned between $195,000 and $240,000 per year in the three years immediately before his disappearance. Kejoo and Dr. Ahn had two children: a son born in 1974 and a daughter born in 1976. At the time of his disappearance, Dr. Ahn was age 43. His children were age 11 and 13.

Kejoo's trial testimony described a "very traditional" Korean-American family. For example, Kejoo testified at trial that, except between a husband and wife, Korean men do not discuss important topics with Korean women and vice versa. She also said that Dr. Ahn felt more comfortable with a Korean doctor than an American doctor. Her English was erratic and she misunderstood many common words.

Kejoo testified regarding Dr. Ahn's mental state prior to his admission to Carrier. She stated that Dr. Ahn's depression began "before 1987," that he worried and felt he was "hopeless" and "useless." According to Kejoo, Dr. Ahn "blamed himself" for everything. Dr. Ahn, a nurse and another doctor had been sued for malpractice during his term of practice in Ohio. Although this suit settled in 1987, Dr. Ahn continued to worry about the case. Kejoo testified that he believed that he was a "bad doctor." The doctor also worried about an IRS investigation into a "tax shelter," by a group of doctors which purchased two CAT scan machines. Kejoo testified that her husband believed that the "government comes to my house, take everything, so we are going to be, not have nothing." Although Dr. Ahn was assured by a friend employed by the IRS that the problem was "not that big deal, just not that much money, a little money we could pay," her husband continued to worry.

In January 1988, according to Kejoo's testimony, her husband began seeing Dr. C. N. Kim, a psychiatrist in Clifton. At Dr. C. N. Kim's office, Dr. Ahn excused himself from the waiting room to use the restroom. After a time, Kejoo went to the restroom to check on her husband because "he didn't come out." When he did not respond to her knock, she opened the door and discovered Dr. Ahn trying to hang himself with his belt. Dr. C. N. Kim placed Dr. Ahn on medication and told Kejoo to "watch him carefully."

Kejoo testified that from that time on either she, her son, or her daughter stayed with Dr. Ahn. Kejoo claimed, after that incident, Dr. Ahn began getting better. He jogged and went back to work after taking nearly two months off. However, two or three weeks after returning to work, Dr. Ahn was 'on call" one night when one of his patients died. The next morning Kejoo saw a "change" in Dr. Ahn. He again claimed that everything was "his fault" and that he was not a good doctor. Dr. Ahn called Dr. Lee, a family friend (and possibly a relative), who stayed with Dr. Ahn that entire day, a Sunday. Dr. Lee then told Kejoo that her husband should go to Carrier. Dr. Lee called Carrier and arranged for Dr. Ahn's admission on Tuesday. There was testimony that Dr. Ahn also called and confirmed the arrangement with Carrier before being admitted. Kejoo and her children and a friend of the family assisted in "watching" Dr. Ahn until the admission to Carrier.

On March 22, 1988 Kejoo drove her husband to Carrier in Montgomery Township. Kejoo testified that Dr. Ahn threatened suicide in the car on the way to the clinic. Upon their arrival at Carrier, Dr. Ahn and Kejoo both signed admission papers. Dr. Ahn was a "voluntary" admission to Carrier. He was not committed involuntarily.

At Carrier, Dr. Ahn was examined on admission by Dr. Bohdan Cehelyk, a staff psychiatrist with the Carrier Clinic Medical Association. Dr. Cehelyk's deposition was read into the record during the plaintiff's case by plaintiff's counsel. In the deposition, Dr. Cehelyk was questioned about the report he prepared during his admission interview of Dr. Ahn. Dr. Cehelyk noted in his report that Dr. Ahn had a prior history of depression in Korea while in medical school which was resolved through spontaneous remission. Cehelyk's report stated that Dr. Ahn was "well until October of 1987" and that he subsequently became "progressively more depressed." The doctor also noted that Dr. Ahn had been placed on "Desyrel 400 milligrams with benefit." Cehelyk's report also stated that Dr. Ahn had returned to work three weeks before the admission and that the depression had recurred with "suicidal ideations." Although both Dr. Ahn and Kejoo were present during the examination, Cehelyk could not remember whether any information was obtained from Kejoo. Kejoo claims that no one asked her anything. She apparently had no part in the admission interview, probably because of cultural habits.

Other notations in Cehelyk's report included his observations that Dr. Ahn's eye level reflected that he was "tense with agitation," "obsessing [about] being a lousy person," and that he believed "things [weren't] going to work out." Cehelyk's report also noted that Dr. Ahn had "suicidal ideation," i.e., "a thought of hurting yourself." Cehelyk diagnosed Dr. Ahn's condition as "major affective disorder, depressed."

Later, Cehelyk testified in person that his report also recorded Dr. Ahn had no family history of suicide and he had not previously actually attempted suicide but instead just had "thoughts" of suicide. Although plaintiff's expert psychiatrist, Dr. Verdon, testified that Dr. Ahn's father committed suicide, there was no evidence that Cehelyk was provided with this information. Cehelyk also testified that suicidal ideation is "extremely common" in depressed patients. The plan of treatment on admission for Dr. Ahn was to place him in an "open" unit, give him dining room, gym, and "pool-hall" privileges, and to schedule him to meet his treating psychiatrist the next day.

Cehelyk also testified regarding a medical form which Carrier required the patients to fill out before being taken to a unit. On this medical form, Dr. Ahn had written under "current complaints" that there was a previous "suicidal attempt." However, "attempt" was crossed out and "idea" added. Cehelyk's own dictated report stated that "[t]he patient did admit to suicidal intention, but denied suicide attempts." However, Cehelyk claims that the use of the word "intention" was a "typo" and that the correct word dictated was "ideation."

Kejoo testified that after Cehelyk's examination of Dr. Ahn, they were taken to Dr. Ahn's room, where a "guard" checked his belongings. Kejoo stated that the guard removed Dr. Ahn's razors "because of danger." However, the guard did not remove Dr. Ahn's belt from his belongings. Kejoo testified that she was worried about the belt ...


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