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Marshall v. Klebanov

June 22, 2005

CRAIG S. MARSHALL, ADMINISTRATOR AD PROSEQUENDUM OF THE ESTATE OF ELLEN S. MARSHALL, DECEASED, PLAINTIFF-APPELLANT,
v.
VLADIMIR KLEBANOV, M.D., DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-5401-01.

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

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE COMMITTEE ON OPINIONS

APPROVED FOR PUBLICATION

Argued May 17, 2005

Before Judges Lefelt, Alley and Fuentes.

Ellen Marshall, a thirty-six year old married mother of two young sons, hanged herself two days before a scheduled appointment with her psychiatrist, defendant Vladimir Klebanov. Her husband, plaintiff Craig Marshall, sued defendant on behalf of himself and his wife's estate for malpractice and wrongful death. Plaintiff now appeals from the motion judge's summary judgment, which concluded that defendant psychiatrist, pursuant to N.J.S.A. 2A:62A-16, was statutorily immune from liability for Mrs. Marshall's suicide. We disagree that defendant's conduct warranted immunity under the statute, and we reverse and remand.

Here are the facts and relevant procedural history. In late December 1999, Mrs. Marshall told her mother that if anything were to happen to her, she wanted her mother to know she was a good mother. She also told her sister that she could not take it anymore. Concerned about Mrs. Marshall's despondency, her mother and sister drove to an office Dr. Klebanov was opening in Old Bridge to inquire whether the doctor would be willing to treat Mrs. Marshall. Mrs. Marshall's mother told the doctor that her daughter had suicidal tendencies and they were very worried about her. No appointment was made, however, because the doctor's office was not yet ready to service patients.

Mrs. Marshall subsequently called the doctor and scheduled an appointment for January 7, 2000, the first day defendant's office was open to patients. Mrs. Marshall noted in her initial questionnaire that her last medical examination was in 1999, and that she was taking Prozac (an antidepressant) daily. She also noted a family history of anxiety attacks, fears or phobias, depression, and suicide attempts.

While supplying intake information to defendant, Mrs. Marshall informed the doctor that she had tried to kill herself twice, with the last attempt occurring in 1997. She was treated, at that time, with Prozac and Wellbutrin and began to feel better again. Two months before the appointment with defendant, however, Mrs. Marshall suffered another episode of depression.

Dr. Klebanov noted that Mrs. Marshall had suicidal thoughts, without any current plan to take her life. He diagnosed her with major depression, recurrent, and severe. He also found that she suffered from depressed mood, blunted affect, poor insight, and poor judgment. The doctor increased Mrs. Marshall's Prozac dose, maintained the Wellbutrin, added Lithium, and determined that it was necessary to see her weekly. Consequently, the doctor scheduled another appointment for January 14, 2000. Mrs. Marshall paid the doctor $150 for the completed session.

One week later, Mrs. Marshall returned to defendant's office for her scheduled appointment, but was not seen by the doctor. The reason she was not seen is disputed. According to plaintiff, Dr. Klebanov's receptionist, who is also the doctor's wife, turned Mrs. Marshall away because she did not have a check with her, even though she offered to pay by credit card. Plaintiff also claimed that in a subsequent telephone conversation on that day with the doctor, he agreed to see Mrs. Marshall, but only after plaintiff guaranteed payment.

Dr. Klebanov disagreed with plaintiff's account of what occurred on January 14, and claimed to never refuse treatment of patients who cannot pay. He asserted that after being told that the office was not equipped to accept credit cards, Mrs. Marshall told the receptionist that she did not yet have confirmation of insurance and could not afford to pay for the session. The receptionist suggested that she nevertheless speak with the doctor about her medications, but Mrs. Marshall refused and claimed to be feeling well enough to wait until she obtained insurance confirmation in a couple of weeks.

Whatever actually occurred on January 14, it is undisputed that later that day, the doctor called to inquire why Mrs. Marshall had not kept her appointment. Subsequently, on that day, defendant and plaintiff spoke, and the doctor some time thereafter made an appointment with Mrs. Marshall for February 4, 2000, which was almost one month after the initial session. Tragically, two days before this appointment, on February 2, 2000, Mrs. Marshall hanged herself.

Plaintiff claims that Dr. Klebanov committed malpractice by abandoning his patient and not providing her with appropriate treatment. Plaintiff's expert supported this position and opined that "[a]lthough [defendant] appropriately assessed the high risk of suicide, he did not take appropriate action to deal with that risk" and defendant's "failure to do so was one major factor that led to Ellen's suicide." Defendant's actions, according to plaintiff's expert, "constitute[d] a deviation from the proper standard of medical and psychiatric care, because he abandoned his patient."

Regardless of plaintiff's expert's opinion, however, the motion judge agreed with defendant that N.J.S.A. 2A:62A-16 shields a mental health professional from liability for deviations from the standard of care in all instances except where the patient's suicide is imminent. The motion judge stated that "the language in the statute is unambiguous" and "N.J.S.A. 2A:62A-16a provides the defendant, Dr. Klebanov, here, with an immunity, so long as one of the two subsections of [b] are not applicable." Because neither the doctor nor Mrs. Marshall's relatives believed her suicide was imminent, the judge concluded that the statute completely immunized defendant from any malpractice claim, and granted defendant summary judgment, dismissing plaintiff's complaint.

Pursuant to N.J.S.A. 2A:62A-16a, any licensed mental health practitioner, including a psychiatrist, "is immune from any civil liability for a patient's violent act against another person or against himself unless the practitioner has incurred a duty to warn and protect the potential victim as set forth in subsection b. of this ...


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