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Braski v. State

August 10, 2007

MATHEW BRASKI, BY AND THROUGH HIS GUARDIAN, JOSEPH BRASKI, PLAINTIFF-APPELLANT, AND
JOSEPH BRASKI AND CAROL BRASKI, INDIVIDUALLY, PLAINTIFFS,
v.
STATE OF NEW JERSEY, STATE OF NEW JERSEY DEPARTMENT OF EDUCATION, VITO A. GAGLIARDI, SR., UNION TOWNSHIP BOARD OF EDUCATION, UNION TOWNSHIP SCHOOL DISTRICT, ESTATE OF WILLIAM CLAWSON, MICHAEL LURSKI, UNION TOWNSHIP CHILD STUDY TEAM, JOANNA HUGHES, MAXINE BAHARLIAS, VIRGINIA SILLIPHANT, PATRICIA HLADKEY, HUNTERDON HEALTH CARE SYSTEM, INC., HUNTERDON MEDICAL CENTER, HUNTERDON BEHAVIORAL HEALTH SERVICES (FORMERLY KNOWN AS HUNTERDON COMMUNITY MENTAL HEALTH CENTER), AND HERB SHIGAKENE, DEFENDANTS-RESPONDENTS, AND
COUNTY OF HUNTERDON, TOWNSHIP OF UNION (LOCATED IN HUNTERDON COUNTY), AND JESSIE WOLPERT, DEFENDANTS.



On appeal from the Superior Court of New Jersey, Law Division, Hunterdon County, Docket No. L-126-02.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued: March 14, 2007

Before Judges Cuff, Fuentes and Baxter.

On April 1, 1992, ten-year-old Mathew Braski suffered severe and permanent brain damage when he attempted suicide by hanging in the family home. Mathew and his parents filed a complaint asserting a myriad of claims against state and local school officials and his treating mental health professional. Essentially, plaintiffs allege that some or all of defendants failed to prevent their son's suicide attempt. They appeal from several orders dismissing the complaint in its entirety. We affirm all orders except the order dismissing the malpractice claim against the licensed clinical social worker, the child's regular treating professional, and the Hunterdon medical defendants.

Mathew was born on February 17, 1982, and he was adopted by the Braskis in May 1982. The Braskis also had another adopted son, five years older than Mathew.

In February 1989, when Mathew was seven years old and in the first grade, his teacher referred him to the Union Township Child Study Team (CST). Although the record reflects that his academic performance was satisfactory, his teacher described him as hyperactive, argumentative, and unable to see a task to completion. He had a short attention span and a very changeable personality: sweet and loving one minute, and angry and aggressive the next.

His mother requested that the CST screen Mathew "on a crisis intervention basis" and executed a form granting the school permission to work with Mathew. She informed the CST that she could not control her son, citing as an example Mathew's threat to jump out a window following punishment. Fifteen minutes later, when Mrs. Braski checked on Mathew, she found his bedroom window and screen open, and Mathew sitting on the ledge with his feet dangling outside. At her deposition, Mrs. Braski revealed that he frequently threatened to kill himself. Mrs. Braski could not recall, however, whether she reported this information to the school.

The Union Township CST consisted of defendants Maxine Baharlias, a case manager/social worker; Patricia Hladkey, a learning consultant; and Virginia Silliphant, a psychologist. Defendant Joanna Hughes, the school's coordinator of special services, was responsible only for scheduling and for coordinating the CST's efforts.

The members of the CST worked as a team and performed an evaluation of a child in her area of expertise. For example, Silliphant was responsible for assessing cognitive ability, adaptive behavior, social adjustment, and emotional status; Baharlias was responsible for working as a liaison between school and family. Members of the CST would share their assessments of the child at meetings, develop a report, and meet with the parents to discuss the team's conclusions. Members of the CST would not necessarily review every piece of paper in a child's file, nor would each member of the CST be involved in every aspect of a child's educational plan.

In 1989, Baharlias, Hladkey, and Silliphant evaluated Mathew in their respective areas of expertise, and a medical history was obtained from Mathew's pediatrician. In her report dated August 17, 1989, Silliphant concluded that Mathew suffered from a perceptual impairment, "significant lags in visual-motor integration and central processing," with "an emotional component related to his perception of inadequacy in relation to his teacher and his work." Mathew's "threat to jump out his bedroom window [wa]s evidence of how severe the problem was at the time of crisis intervention."

An individualized education program (IEP) was developed under which Mathew was classified as "perceptually impaired." He was to be mainstreamed in a regular classroom, except for language arts and handwriting, for which he was to receive pull-out instruction in the resource room.

On August 29, 1989, before Mathew started the second grade, the CST consulted with Mrs. Braski regarding their evaluations of Mathew, their findings, and the IEP they had developed. The Braskis approved the IEP.

On September 13, 1989, members of the CST and Mathew's counselor met with Mrs. Braski to discuss her son's positive progress in school. He was "distractible, but no more so than other" students. Nevertheless, Mrs. Braski reported that she was anxious about managing Mathew's out-of-school behavior, and the school provided her with a list of therapists.

Each year, a review was performed on Mathew's performance under his IEP. Typically, an annual review meeting was held by the CST case manager, with the child's teachers and parents in attendance. The psychologist was not involved unless specifically requested, and Silliphant was never requested to participate in Mathew's annual reviews.

In the fall of 1990, when Mathew was in the third grade, Baharlias obtained evaluations of Mathew's classroom performance and behavior in preparation for the annual review of his IEP. Mathew's teachers reported that his academic performance and behavior were generally good. However, he remained easily distracted and somewhat difficult to control; for example, he would chat with fellow students, speak out of turn, and had difficulty following directions.

In November 1990, Baharlias conducted an annual review meeting with the Braskis and Mathew's private counselor. At the meeting, she presented a new IEP under which Mathew would continue to be mainstreamed in the regular classroom with the exception of language arts and handwriting. Mathew would also meet once per week with a guidance counselor. The Braskis were provided with copies of the annual review and revisions to Mathew's basic plan, and they filed no objections.

Mathew's academic performance was also reviewed with Mrs. Braski on November 13, 1990, and in January 1991. Mathew's academic performance was "not too bad." However, it was recommended that Mathew receive speech/language therapy once per week.

In November 1990, concurrent with the annual review of Mathew's IEP, Mathew commenced outpatient psychological therapy at defendant Hunterdon Medical Center. There, for three to four months, between November 1990 and February/March 1991, Mathew was treated by a psychologist, Jesse Wolpert.

In his notes, Wolpert catalogued the difficulties that the Braskis experienced with Mathew's behavior at home. The Braskis described Mathew as difficult and destructive, impulsive, lacking in self-control, easily frustrated, and easily bored. He had a high energy level and trouble sitting still. He did not follow instructions, and did what he wanted with little or no concern about the consequences. He threw temper tantrums when he did not get his way, and frequently fought with his parents and his older brother. Wolpert described Mr. Braski as "pessimistic" about Mathew's ability to improve, and Mrs. Braski as "overwhelmed" by Mathew. Wolpert also spoke with Mathew's school teacher, who described Mathew's hyperactivity and impulsiveness in school. Mathew was diagnosed with oppositional defiance disorder, and he was also placed on Ritalin, which was supervised by a psychiatrist.

The school noted substantial improvement in Mathew's behavior while he was in therapy and taking Ritalin. The Braskis discontinued both forms of treatment in February/March 1991 for financial reasons. At the Braskis' request, Wolpert provided a summary of his conclusions regarding the sources of Mathew's behavior, which he found were primarily family-related.

At or about the same time that Mathew ceased therapy and Ritalin, on February 6, 1991, Mathew's teacher requested a conference with the CST. She reported that Mathew's behavior was "becoming more violent and explosive" and that Mathew's reading teacher was experiencing the same problems. Soon thereafter, Mathew's teacher completed an evaluation of Mathew's behavior, and Mathew began receiving reading instruction in the resource room.

Seven months after ceasing treatment, in September 1991, the Braskis returned to defendant Hunterdon Medical Center due to Mathew's deteriorating behavior at home, which included kicking holes in walls, breaking into his brother's room, breaking into neighbors' homes, stealing, and smoking cigarettes. At Hunterdon Medical Center, Mathew was treated by defendant Herb Shigakene, a licensed clinical social worker. Mathew also resumed a regimen of Ritalin, which was prescribed and supervised by his pediatrician.

Shigakene spoke with Wolpert regarding his earlier treatment of Mathew. However, Shigakene did not speak to anybody at Mathew's school. Instead, he focused on the family relationship, which he believed was the primary source of Mathew's negative behaviors.

Shigakene perceived Mathew as "hyperactive, distractible, angry, unhappy, impulsive, [with] erratic behavior and much acting out. He also felt very poorly about himself, low self-image," and felt competitive with and jealous of his brother, who he perceived as better than him and more loved by their parents. Shigakene's plan was to see Mathew and his family on a weekly basis, to help Mathew become aware of the consequences of his actions and improve his self-image, and to help the Braskis understand Mathew better and to become more flexible in their dealings with him. Shigakene perceived "the situation as Mathew and his parents being unfortunately a poor match," with the Braskis finding it difficult to deal with an active and aggressive child.

The Braskis, on the other hand, perceived Mathew as severely disturbed, possibly a sociopathic personality, and they considered institutionalizing him. Shigakene, however, told the Braskis that he did not believe that was necessary.

Over the course of Mathew's weekly therapy visits, between September 1991 and April 1992, Shigakene reported ups and downs in Mathew's behavior. However, at no time did Mathew report any thoughts of violence or suicide. Although Shigakene perceived Mathew as depressed, he did not believe that Mathew needed medication for depression, and Shigakene never perceived Mathew as a danger to himself or others.

On September 11, 1991, just before the Braskis resumed therapy at Hunterdon Medical Center, and at the beginning of Mathew's fourth grade year, Mrs. Braski called the school to report Mathew's worsening behavior at home. Baharlias advised Mrs. Braski that in-school counseling would begin soon, and that she might want to recheck Mathew's medication. Baharlias also referred Mrs. Braski to Dr. Ronald Rawitt, a child psychiatrist. Also on September 11, 1991, Mrs. Braski was advised that Mathew would no longer receive handwriting instruction in the resource room. Mrs. Braski objected to that change.

The annual review of Mathew's IEP occurred in the fall of 1991. Mathew's teachers reported improvement in Mathew's academic performance and classroom behavior, but also noted that Mathew remained easily distracted, impulsive, and lacking in concentration.

In addition, apart from the annual IEP review, Silliphant conducted a psychological reevaluation of Mathew at his mother's request. In her report dated October 9, 1991, Silliphant found problems with Mathew's family dynamics, particularly his anger and anxiety over his relationship with his brother, and his belief that, if he communicated his concerns to his parents, they would not understand him. She did not perceive a suicidal ideation, but she was alarmed by the degree of hurt that she saw in Mathew. She saw his stress and frustration and worried that, consciously or unconsciously, he was working toward a confrontation. In her report, Silliphant recommended "[t]reatment goals." She also expressed some urgency about Mathew's situation.

On December 10, 1991, Baharlias conducted the annual review of Mathew's educational program, with two of Mathew's teachers and his counselor. Mrs. Braski also attended this review. Mathew's educational status was found to be generally good, but incomplete homework, impulsivity, self-discipline, and problems getting along with his brother remained primary areas of concern. His behavior and ...


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