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Berberian v. Lynn

November 20, 2002

MARK BERBERIAN AND EMANUEL BERBERIAN, PLAINTIFFS-APPELLANTS,
v.
DIANA LYNN, AS GUARDIAN OF THE INCOMPETENT EDMUND GERNANNT AND EDMUND GERNANNT, INDIVIDUALLY AND THE ESTATE OF EDMUND GERNANNT, DEFENDANTS-RESPONDENTS, AND DR. M.H. RAMAY, M.D., DEFENDANT.



On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. BER L-758-98.

Before Judges Petrella, Lintner and Bilder.

The opinion of the court was delivered by: Petrella, P.J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued October 21, 2002

Plaintiffs, Mary Berberian and her husband Emanuel Berberian,*fn1 filed a complaint against defendants Diana Lynn, Edmund Gernannt, and a then-unknown physician. Amended complaints added the Estate of Gernannt as a defendant after he died, and substituted Dr. M.H. Ramay, M.D., as a defendant for the unknown physician. The complaint alleged that Lynn was negligent in allowing and causing the removal of Gernannt, an adjudicated incompetent, from the psychiatric ward of Bergen Pines County Hospital (Bergen Pines) to the Bergen Pines long term care unit without restraints. Plaintiffs also alleged improper supervision and control and that Lynn breached a contract or fiduciary duty, or both, as Gernannt's guardian. Summary judgment was granted in Lynn's favor, dismissing all claims asserted against her. Summary judgment was later granted to Dr. Ramay, dismissing the complaint against him apparently due to the bar of the workers' compensation statute. The dismissal of Dr. Ramay is not the subject of this appeal.

On the last day of the jury trial against Gernannt, plaintiffs' attorney argued that a $200,000 settlement had been reached, despite his request in a counterproposal for $225,000, and plaintiff sought enforcement of the settlement. Defendant's attorney placed a high low proposal on the record in the presence of plaintiff and her attorney, but this offer was not accepted. The trial judge concluded there was no settlement and charged the jury, which thereafter returned its verdict finding Gernannt was not negligent.

Plaintiffs assert the following claims on these consolidated appeals. In their first appeal (A-4825-00T2) they argue: (1) Lynn was negligent in demanding that Gernannt be removed from the psychiatric unit and placed in the long term care unit of Bergen Pines; and (2) the judge erred in instructing the jury that Gernannt could not be found negligent if he lacked the capacity to appreciate the consequence of his actions. In their second appeal (A-414-01T2) plaintiffs argue that the judge erred in refusing to enforce a claimed settlement between the parties despite a strong public policy favoring settlements and the fact that an oral settlement is enforceable.

Lynn was awarded guardianship of her father, Gernannt, now deceased, on September 22, 1997, when it became apparent that he was no longer mentally competent or able to care for himself and was a danger to himself and others. On October 3, 1997, Gernannt was admitted to Bergen Pines*fn2 with a diagnosis of Senile Dementia, Alzheimer Type. On October 13, 1997, he was transferred from the Long Term Care Unit (LTCU) to the Psychiatric Unit because he"became increasingly agitated and assaultive towards the staff."

Dr. Ramay, who last treated Gernannt on November 1, 1997, did not expect that there would be any recovery of cognition by the patient. Prior to the November 11, 1997 incident, Dr. Hossain, the Chief of Geriatric Psychiatry at Bergen Pines, treated Gernannt. Both doctors testified at trial that Gernannt suffered from advanced Alzheimer's disease with severe dementia.

In addition, Dr. Hossain stated that Gernannt's condition was unlikely to improve and was, in fact, progressive.

On November 5, 1997, Gernannt was returned to the Alzheimer population in the LTCU after receiving medication and treatment. Plaintiff contends that when Lynn was notified that her father was placed in the Psychiatric Unit, she requested his return to the LTCU. A report by Dr. Ramay noted that when Gernannt was treated in the Psychiatric Unit,"[t]he patient's family was contacted. They wanted him in long term care." Although Lynn acknowledged concern that her father was placed in the Psychiatric Unit, she asserts she never directed the hospital doctors to transfer her father from the Psychiatric Unit to the LTCU. At her deposition she stated:

I remember being concerned about my father being in the psychiatric unit because I remembered the movie"Snake Pit"... [a]nd I asked the doctor was he going to stay there or what the situation was... [T]he doctor said that it was normal that within a few days time, that he would be transferred. That's what he expected, that within a few days time he would be transferred back to long term care.

Nurse Christina Maita testified that about 75% of the patients in the LTCU were Alzheimer's patients and that a patient would be transferred to the Psychiatric Unit when the patient was at risk of harming himself or others. Maita explained that the decision to transfer to and from the Psychiatric Unit involved collaboration between the doctors, nurses, and interdisciplinary team. According to Maita, during the days prior to the alleged incident, Gernannt was never physically abusive towards Maita or Berberian. She was aware that Gernannt had behavioral problems prior to the date of the incident.

At about 11:00 p.m. on November 11, 1997, Gernannt set off the alarm when he tried to leave the LTCU by the fire door exit. Maita heard the alarm and attempted to stop him. However, Gernannt resisted and pushed her away. She then summoned security. Berberian, the charge nurse for Gernannt, grabbed Gernannt in an attempt to redirect him. According to Maita, Gernannt then pushed Berberian, and she lost her balance and fell as she stepped back.

Berberian contends that when she approached Gernannt, she extended her hand to help him back to his room and he took it, and subsequently pushed her away, causing her to fall backward. As a result of the fall, Berberian fractured a bone in her right leg.

I.

We first address the factual dispute between the attorneys for the parties as to whether there was a settlement. The judge considered the circumstances and the relevant and conflicting statements by the attorneys and ruled:

I cannot enforce a settlement that was never placed on the record, that was never, as far as I recollected, accepted by plaintiff. There were discussions back and forth, it's true. There was a discussion about the [$200,000] number. I don't recollect anyone saying definitively that that would settle the case. That's how come we went to a verdict on the case, and until and unless plaintiff [was] willing to put on the record that the two-hundred was agreed to and defense agreed to pay it, the ...


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