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Braski v. State


August 10, 2007


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

Per curiam.


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 academic performance deteriorated when he was not taking Ritalin but improved when he was on the medication.

Under the new IEP, he would receive reading, language arts, and math instruction in the resource room. In addition, he would receive accommodations in social studies and science. The Braskis did not object to this IEP.

By letter dated December 18, 1991, Baharlias referred Mathew to Dr. Ronald Rawitt for a neuro-psychiatric screening. Silliphant was not involved in the decision to refer Mathew to Rawitt. She stated that Rawitt's report was obtained as "a consultation for Mrs. Braski."

In the referral letter, Baharlias provided Rawitt with a summary of Mathew's problems and his current educational program. She advised Rawitt that Mathew was on Ritalin, and that he was receiving private therapy at Hunterdon Medical Center. She did not mention the 1989 incident when Mathew threatened to jump from his bedroom window.

At the school's request, the Braskis executed a release of information form, permitting the school to forward Mathew's reports to Rawitt. The school's records reveal that a copy of Mathew's reports were forwarded to Rawitt on January 6, 1992. By January 21, 1992, Rawitt had not received Mathew's school records. When he called the school, he was instructed to draft his report without them.

On January 15, 1992, Rawitt met with Mathew and his parents. Rawitt stated that the Braskis did not advise him that Mathew was suicidal, or that Mathew had once attempted suicide; Mr. Braski, on the other hand, claimed that he informed Rawitt of Mathew's suicide threats. In any event, Rawitt's report reflects that Mathew advised the doctor that "he angers easily and wishes that he was dead, and also wishes that he was never born. He has thought of jumping out of the window, but has never actually tried to do so, and has no plans to do so in the near future."

In his January 1992 report, Rawitt diagnosed Mathew with a parent-child problem (with Mathew's parents perceiving his behavior as pathological), oppositional defiant disorder, dysthymic disorder/moderate-to-severe depression, and mixed specific developmental disorder. He recommended that Mathew:

(1) receive consistent psychotherapy with his family, in addition to counseling in the school; (2) receive instruction in "a maximally supportive, structured, and limit setting classroom environment which has reduced numbers of students and is self-contained," with "counseling available on an as-needed basis"; (3) participate in community-based after-school and weekend activities; and (4) receive medication that is monitored and adjusted periodically.

Rawitt was particularly concerned about Mathew's family situation, which he believed was a contributing factor to Mathew's condition. He found the family to be secretive and full of tension, with Mathew treated as the "scapegoat." He had no concerns about Mathew's school situation.

In terms of suicide, Rawitt found that Mathew was moderately to severely depressed. However, he did not perceive Mathew as suicidal at the time of his interview. Nevertheless, Rawitt testified at his deposition that, if he had known of a previous suicide attempt, he would have diagnosed Mathew with severe depression, and "[p]erhaps" he would have recommended inpatient psychiatric care. Rawitt testified that a prior suicide attempt, regardless of when it had occurred, in combination with the information known to Rawitt from the interview, would have suggested that Mathew had an imminent problem that needed to be addressed. The Braskis, in turn, stated that they would have followed a recommendation from Rawitt for inpatient psychiatric care.

It is unclear which members of the CST saw Rawitt's report and when they reviewed it. Baharlias believed she had seen the report before meeting with Mrs. Braski on February 5, 1992. Hughes could not recall when she first saw the report. There is no testimony from Hladkey on the issue. Silliphant stated that she did not see the report or discuss it with other members of the CST until after Mathew's suicide attempt.

The record reveals, however, that on February 5, 1992, the CST provided Mrs. Braski with a copy of Rawitt's report. She, in turn, gave a copy to Shigakene, who agreed with Rawitt's diagnoses but believed that Mathew also suffered from Attention Deficit Hyperactivity Disorder (ADHD). The report did not cause Shigakene to alter his counseling of Mathew, which was focused on modifying the parent/child issues.

On February 5, 1992, Baharlias held a meeting with Mrs. Braski and some of Mathew's teachers regarding a new IEP that had been developed for Mathew. Under the new IEP, Mathew would receive instruction in the resource room for reading, writing, math, and speech; he would be mainstreamed for social studies and science, with accommodations such as limiting the amount of homework assigned, extensions of time for assignments, and permission to take quizzes or tests in the resource room; and he would receive counseling once per cycle. There is no indication in the record, however, that the new IEP was distributed to all of Mathew's teachers. The CST did not alter Mathew's classification from perceptually impaired to emotionally disturbed because they did not believe that Mathew's behavior and emotional adjustment in the school setting were interfering with his learning. The IEP was consistent with Rawitt's recommendations and Mathew's parents did not object to it.

On April 1, 1992, Mathew had a one-hour therapy session with Shigakene. He showed no signs of a violent or suicidal ideation. In fact, he appeared to be in good spirits. He shared an April Fool's Day prank that he had enjoyed that day, and stated that he was looking forward to playing baseball.

Later that evening, after an argument with his father about a school assignment, Mathew attempted suicide by hanging in his bedroom at home. He was resuscitated. However, he suffered severe and permanent brain damage.

Mathew and his parents filed a complaint in February 2002 against the State of New Jersey, the State Department of Education, and the former Commissioner of Education, (the State defendants). They also named as defendants the Union Township (Hunterdon County) Board of Education, Union Township School District, the estate of the former superintendent of schools, the school principal, the director of special services, the Union Township CST, and individual members of the CST (the school defendants). They also filed a complaint against Hunterdon Health Care System, Inc., Hunterdon Medical Center, Hunterdon Behavioral Health Services, Herb Shigakene, and Jessie Wolpert (The Hunterdon Medical defendants).*fn1

Counts One and Two of the complaint alleged that the State and school defendants were negligent. Counts Three and Four asserted that the State and school defendants violated the Individuals with Disabilities Education Act (IDEA), 20 U.S.C.A. §§ 1400 to 1482; 42 U.S.C.A. § 1983; § 504 of the Rehabilitation Act, 29 U.S.C.A. § 794; and the Americans with Disabilities Act (ADA), 42 U.S.C.A. §§ 12101 to 12213. Count Five alleged that the Hunterdon Medical defendants negligently cared for Mathew. In Count Six, Mathew's parents sought damages for emotional distress caused by their witnessing the aftermath of their son's failed suicide. Plaintiffs sought compensatory damages for Mathew's emotional distress, loss of enjoyment of life, and his care and supervision. They also sought punitive damage, damages for the loss of Mathew's services and companionship, attorneys fees and costs.

Following discovery, all defendants moved for summary judgment. Oral argument occurred on August 5 and September 6, 2005, and all motions were granted. We will address first the negligence claims against the State and school defendants.



1. The State Defendants

In their complaint, plaintiffs asserted that they received educational services from the State of New Jersey, that the State owed a duty of care in the provision of educational services, that the State had actual or constructive notice of Mathew's serious mental illness, and that the educational services provided to Mathew were insufficient and a great source of stress that aggravated his emotional problems. They also alleged that the failure to follow and implement directives to provide appropriate educational services was a proximate cause of Mathew's suicide attempt (count one). Plaintiffs also asserted that the State defendants discharged their responsibilities in a palpably unreasonable manner (count two).

Plaintiffs also alleged that the State defendants had a duty to address Mathew's needs and disabilities and to provide all procedural and substantive rights afforded by federal and State law, including the law governing public education in this State, the IDEA and § 504 of the ADA. Plaintiffs alleged that the State defendants denied those rights (count three). Plaintiffs also asserted that the Commissioner of Education, acting under color of State law, violated plaintiffs' civil rights contrary to 42 U.S.C.A. § 1983 (count four).

It is undisputed that the State defendants were not involved in developing or implementing Mathew's IEP. Neither parent filed a complaint with the State Department of Education regarding the development or implementation of Mathew's IEP. No one from the Union Township school system contacted the State defendants regarding Mathew.

The Office of Special Education in the Department of Education provides informational materials and training to local school districts regarding their obligations under the IDEA and monitors implementation of the IDEA by local school districts.

20 U.S.C.A. § 1416. In its oversight capacity, the State periodically visits schools and reviews CST files.

Discovery revealed information regarding the adequacy of oversight and monitoring. Hughes, the school's coordinator of special services, recalled only two visits by representatives of the New Jersey Department of Education (NJDOE) to the district over ten years. Moreover, in February 1999, the United States Department of Education noted that the NJDOE had not corrected deficiencies cited in 1994 and 1996. More particularly, the federal report expressed concern about the State Department of Education's "continuing failure to exercise its general supervisory authority over local school districts in the State, including ensuring that local school districts correct identified deficiencies in a timely manner." Yet, the Union Township School District was not named as a district with identified deficiencies.

The motion judge dismissed the negligence claim against the State defendants because this claim was barred by the Tort Claims Act (TCA), N.J.S.A. 59:1-1 to -12-3. He reasoned that the implementation of a statutory mandate and the manner and timing of oversight are the types of activities which are classic discretionary actions for which the State defendants are immune from suit.

As specifically relates to this case, the TCA provides that public employees are immune from liability for their discretionary acts. N.J.S.A. 59:3-2; Perona v. Twp. of Mullica, 270 N.J. Super. 19, 29 (App. Div. 1994). Specifically, N.J.S.A. 59:3-2 provides:

a. A public employee is not liable for an injury resulting from the exercise of judgment or discretion vested in him;

b. A public employee is not liable for legislative or judicial action or inaction, or administrative action or inaction of a legislative or judicial nature;

c. A public employee is not liable for the exercise of discretion in determining whether to seek or whether to provide the resources necessary for the purchase of equipment, the construction or maintenance of facilities, the hiring of personnel and, in general, the provision of adequate governmental services;

d. A public employee is not liable for the exercise of discretion when, in the face of competing demands, he determines whether and how to utilize or apply existing resources, including those allocated for equipment, facilities and personnel unless a court concludes that the determination of the public employee was palpably unreasonable. Nothing in this section shall exonerate a public employee for negligence arising out of his acts or omissions in carrying out his ministerial functions.

Public entities are similarly entitled to immunity for their discretionary acts. N.J.S.A. 59:2-3. And, "[s]ince the two sections contain the same language, interpretations of N.J.S.A. 59:2-3 have been applied equally to 59:3-2." Harry A. Margolis & Robert Novack, Claims Against Public Entities, comment to N.J.S.A. 59:3-2, at 70 (2006).

The purpose of the IDEA is to ensure that all children with disabilities are provided with "a free appropriate public education." 20 U.S.C.A. § 1400(d). To effectuate this purpose, the IDEA conditions certain federal monetary assistance upon a state's ability to meet various criteria relating to the education of children with disabilities. 20 U.S.C.A. § 1412(a); 34 C.F.R. § 300.110; 34 C.F.R. §§ 300.121 to 300.166. Among those criteria is the requirement that a state educational agency provide general supervision and technical assistance to ensure that local school districts comply with their obligations under the IDEA. 20 U.S.C.A. §§ 1412(a)(11), 1416; 34 C.F.R. §§ 300.600 to 300.609.

The State of New Jersey has implemented the IDEA through statute adopted by the Legislature and regulations promulgated by the NJDOE. N.J.S.A. 18A:46-1 to -46; N.J.A.C. 6A:14-1.1 to -10.2 (formerly N.J.A.C. 6:28). The NJDOE's regulations mandate State monitoring of local school districts for compliance with the law. N.J.A.C. 6A:14-9.1 to -9.2. See also former N.J.A.C. 6:28-9.1 to -9.2.

Plainly, the State's decisions regarding the implementation of the IDEA, including the adoption of statutes and regulations and the level of monitoring applied to local school districts, are uniquely governmental functions that are immunized from liability as discretionary decisions under the Tort Claims Act. N.J.S.A. 59:2-3; N.J.S.A. 59:3-2. See also Myers v. Medford Lakes Bd. of Educ., 199 N.J. Super. 511, 516 (App. Div. 1985) (selection of which course of education to provide to the plaintiff was immunized from liability under N.J.S.A. 59:2-3(a)); Sims v. City of Newark, 244 N.J. Super. 32, 35, 43-44 (Law Div. 1990) (city enjoyed immunity under N.J.S.A. 59:2-3(a), (c), and (d), relating to its inspection and maintenance, or lack thereof, of trees bordering city streets); State Dep't of Envt'l Prot. v. Middlesex County Bd. of Chosen Freeholders, 206 N.J. Super. 414, 426 (Ch. Div. 1985) (county's failure to adopt solid waste management plan was administrative inaction of a legislative nature that was absolutely immunized under N.J.S.A. 59:2-3(b)), aff'd o.b., 208 N.J. Super. 342 (App. Div. 1986).

The State defendants are also immunized from liability under N.J.S.A. 59:2-4, which provides that: "A public entity is not liable for any injury caused by adopting or failing to adopt a law or by failing to enforce any law." See also N.J.S.A. 59:3-5; Reaves v. State of N.J., Dep't of Law & Pub. Safety, Div. on Civil Rights, 303 N.J. Super. 115, 118-21 (App. Div.) (under N.J.S.A. 59:2-4 and N.J.S.A. 59:3-5, State Division of Civil Rights and its employees were immune from suit for negligent failure to conduct prompt investigation of discrimination complaints), certif. denied, 152 N.J. 12 (1997); Kenney v. Scientific, Inc., 204 N.J. Super. 228, 237 (Law Div. 1985) (under N.J.S.A. 59:2-4, no liability for State's alleged failure to regulate or supervise landfill as required by law). And finally, plaintiff's negligence claims against Vito A. Gagliardi, Sr., the former Commissioner of Education, fail for lack of specific allegations made against him.

Plaintiff also has shown no basis for imposing respondeat superior liability upon the State defendants for any negligent actions or omissions of the school defendants. The individual school defendants were employed by the local school district, not the State. Moreover, as discussed later in this opinion, there is no basis to find that the school defendants were negligent. Therefore, there is no basis for imposing respondeat superior liability against any higher order public entity, such as the State defendants. N.J.S.A. 59:2-2.

Finally, plaintiff's negligence claims against the State defendants fail because plaintiff cannot show proximate cause between Mathew's attempted suicide and the State defendants' alleged negligent supervision of the school defendants.

2. The School Defendants

Plaintiffs also asserted negligence claims against the school defendants. Specifically, they contended that the school defendants deviated from the duty owed to them when they failed to provide Dr. Rawitt with Mathew's school records. They asserted that this omission was compounded when the school defendants asked Rawitt to render his report without the records. Plaintiffs contend Mathew was harmed because Rawitt would have learned of the prior suicide attempt, would have diagnosed Mathew with major depression, and would have recommended his immediate hospitalization. Thus, Mathew would not have experienced the stressor or stressors that motivated his suicide attempt. Plaintiffs further argued that the provision of school records is a ministerial, not a discretionary, function of the school employees. In other words, plaintiffs asserted a claim based on administrative malfeasance.

In his oral opinion, the motion judge held that the school defendants owed a duty to provide therapeutic services. Regarding the specific allegation of administrative malfeasance, namely the failure to provide Mathew's school records to Dr. Rawitt, the judge held that N.J.A.C. 6A:14-2.3 does not create a private right of action. Moreover, the negligence claim against the school defendants is governed by the TCA, which immunizes public entities and public employees for discretionary acts. He reasoned that, to the extent Rawitt's report may have led to a reclassification of Mathew, the omission cannot be viewed in isolation. Preparation of an IEP and a reclassification from perceptually impaired to emotionally disturbed is founded on many subtle factors.

As discussed earlier in this opinion, the TCA governs negligence claims against public entities and public employees. The threshold inquiry is whether the alleged acts of a public employee may give rise to liability because the TCA reestablishes the immunity from liability for negligent acts, except as provided in the TCA. N.J.S.A. 59:1-2.

N.J.S.A. 59:3-2 states that an employee is not liable for an injury caused from the exercise of judgment or discretion, N.J.S.A. 59:3-2a; failure to provide "adequate governmental services," N.J.S.A. 59:3-2c; or the allocation of resources and services "in the face of competing demands," N.J.S.A. 59:3-2d. Here, the alleged omission is the failure to forward Mathew's school records to Dr. Rawitt, an act characterized by plaintiff and one of his experts as a ministerial function.

Notably, the significance of this omission is founded on a regulation, N.J.A.C. 6A:14-2.3(d), that requires a school district to "implement without delay the action for which consent was granted." Here, Mrs. Braski authorized the school district to forward Mathew's records to Dr. Rawitt. This regulation, however, did not exist at the time Mrs. Braski authorized the records to be forwarded to Rawitt. Therefore, the school district employees did not have an express directive to guide their actions. This situation suggests that the action by the school district employee should not be considered a ministerial function. The school records were also not the sole source of information about the earlier suicide attempt.

Finally, the record is bare of any suggestion that the evaluator believed he could not complete his requested task without the records. This latter element not only reflects the discretionary character of the omitted act, but also highlights the limited probative value of the information. Compare Kolitch v. Lindedahl, 100 N.J. 485, 495 (1985) (discretionary act entails exercise of personal deliberations and judgment, examining facts, reaching logical conclusions, and acting on conclusions in manner not specifically directed) with Ritter v. Castellini 173 N.J. Super. 509, 513-14 (Law Div. 1980) (ministerial act is one which a public official is required to perform upon a given set of facts in a prescribed manner). Here, the school defendants were not guided by a specific directive; they had sought to obtain an evaluation and wished to obtain it expeditiously. Moreover, the school officials were well-versed in Mathew's school performance and his prior suicide attempt. Under these circumstances, we affirm the order dismissing the negligence claims against the school defendants as barred by N.J.S.A. 59:2-3 and 3-2.*fn2


Plaintiff also asserts that Silliphant, the school psychologist, and Shigakene, the licensed clinical social worker employed by Hunterdon Medical Center, breached the duty of care owed to him as mental health professionals. The motion judge held that N.J.S.A. 2A:62A-16 immunized both defendants from liability. He found no evidence that either professional could have reasonably believed that there was an imminent threat that Mathew would harm himself. The judge also noted that Silliphant, as a school psychologist, did not have a typical professional-patient relationship with Mathew.

In support of their complaint and in opposition to the motion for summary judgment, plaintiffs provided the report of Dr. Ryno Jackson. As to Shigakene, Dr. Jackson related that Shigakene utilized a behaviorist approach that concentrated on present behavior rather than past history. Dr. Jackson acknowledged that Shigakene asked Mathew if he thought of suicide and that Mathew denied suicide ideation. Beyond this simple inquiry, Shigakene did not explore the issue. Jackson also noted that the record of Shigakene's treatment of Mathew revealed a pattern "in which Mathew would improve, then with no explanation [Mathew] would again become impulsive, angry, and defiant."

Jackson also related that Mathew's parents inquired whether Mathew required inpatient treatment but Shigakene "dismissed the idea out of hand." Jackson then opined that [a] primary concept for a therapist to hold is that a parent knows the child much better than the therapist. At that juncture, a 28 day inpatient evaluation for diagnostic purposes and stabilization on appropriate medication at another facility would have been most appropriate since the original diagnosis was being handed off within the mental health center without further thought.

The expert also reported that Shigakene saw the Rawitt report in which Mathew reported to Rawitt that he angers easily and wished he was dead and never born. Jackson criticized Shigakene for not considering Rawitt's "recommendation as to the type of classroom setting which might be more appropriate to meet Mathew's needs." He also criticized Shigakene's suggestion that his parents should consider contacting the police because this course of action would reinforce Mathew's self image as a "bad child." Finally, Jackson criticized Shigakene's failure to contact Mathew's prior therapist or Dr. Rawitt, failure to outline a treatment plan, failure to identify any signals to evaluate the course of treatment, and failure to consider any alternate diagnosis or conduct a recent in-depth interview with Mathew's parents. In short, Shigakene "ignored and violated the basic [tenets] of behavioral therapy."

Dr. Jackson criticized Silliphant's lack of ongoing communication with Mathew's teachers, the selection of tests administered by her, and the lack of follow-up with other tests. He also cited her failure to regularly communicate with Mathew's parents.

Recently, in Marshall v. Klebanov, 188 N.J. 23, 34-40 (2006), the Court examined the immunity conferred on mental health professionals by N.J.S.A. 2A:62A-16. This statute provides in pertinent part:

a. Any person who is licensed in the State of New Jersey to practice psychology, psychiatry, . . . clinical social work . . . is immune from any civil liability for a patient's violent act against . . . himself unless the practitioner has incurred a duty to warn and protect the potential victim as set forth in subsection b. of this section and fails to discharge that duty as set forth in subsection c. of this section.

b. A duty to warn and protect is incurred when the following conditions exists:

(1) The patient has communicated to that practitioner a threat of imminent, serious physical violence against . . . himself and the circumstances are such that a reasonable professional in the practitioner's area of expertise would believe the patient intended to carry out the threat; or

(2) The circumstances are such that a reasonable professional in the practitioner's area of expertise would believe the patient intended to carry out an act of imminent, serious physical violence . . . against himself.

c. A licensed practitioner of psychology, psychiatry, . . . clinical social work . . . shall discharge the duty to warn and protect as set forth in subsection b. of this section by doing any one or more of the following:

(1) Arranging for the patient to be admitted voluntarily to a psychiatric unit of a general hospital, a short-term care facility, a special psychiatric hospital or a psychiatric facility, under the provisions of P.L. 1987, c. 116 (C. 30:4-27.1 et seq.);

(2) Initiating procedures for involuntary commitment of the patient to a short-term care facility, a special psychiatric hospital or a psychiatric facility, under the provisions of P.L. 1987, c. 116 (C. 30:4-27.1 et seq.);

(5) If the patient is under the age of 18 and threatens to commit suicide or bodily injury upon himself, warning the parent or guardian of the patient. [N.J.S.A. 2A:62A-16.]

In Marshall, supra, the Court examined whether a mental health professional was immune from civil liability when the practitioner abandoned a seriously depressed patient and failed to provide adequate monitoring or treatment. 188 N.J. at 27-28.

In Marshall, the decedent had an initial consultation with the defendant psychiatrist during which the decedent recounted her mental health history, including a prior suicide attempt, and her current condition. Id. at 29-30. The defendant rendered a diagnosis of "major depression, recurrent, severe," prescribed medication in addition to her existing pharmacological regime and adjusted the dosage of one of her existing prescriptions. Id. at 30. A second appointment was made but the decedent did not see the doctor due to a payment problem. Id. at 30-31. Two days prior to the rescheduled appointment, the decedent committed suicide by hanging. Id. at 31. In support of the wrongful death and medical malpractice complaint filed by the decedent's husband, an expert opined that the defendant failed to adequately monitor and treat his patient and had "essentially abandoned her." Ibid.

The Court held that "the statutory immunity provisions of N.J.S.A. 2A:62A-16 do not immunize a mental health practitioner from potential liability if the practitioner abandons a seriously depressed patient and fails to treat the patient in accordance with accepted standards of care in the field." Id. at 38. The Court emphasized that N.J.S.A. 2A:62A-16 was enacted to codify the ruling in McIntosh v. Milano, 168 N.J. Super. 466, 489, 495-96 (Law Div. 1979) that required a mental health professional to take the necessary steps to protect a patient from harming himself or others. Ibid. Stated differently, the Legislature did not "immunize mental health professionals from liability for deviations from accepted standards of care in the treatment of such patients." Ibid.

In addition, the Court held that a duty to warn does not arise unless the risk of patient suicide is imminent. Id. at 40. Noting that neither the decedent's husband nor mother suspected that her suicide was imminent and the defendant had not seen the decedent recently, the Court held that summary judgment on the duty to warn claim was proper because the treating psychiatrist had no duty to warn under the facts of that case. Ibid. On the other hand, the plaintiff's claim that the psychiatrist deviated from accepted standards of care in his treatment of the decedent was not barred by the statute, and plaintiff had presented sufficient evidence to raise a genuine issue of material fact to preclude summary judgment on that issue. Id. at 33-34, 39.

Here, the mental health professional negligence claim against Shigakene is markedly similar to the negligence claim against the treating psychiatrist in Marshall. Plaintiff's expert cited a number of deviations from the standard of care, wholly apart from whether Shigakene should have discerned on April 1, 1992, that Mathew intended imminent harm to himself. While we agree with the motion judge that the record provided no basis to trigger a duty to warn Mathew's parents or anyone else of a suicide threat, the claims advanced by plaintiff go well beyond that threat. Accordingly, we reverse the summary judgment entered in favor of Shigakene and the Hunterdon Medical defendants and remand for further proceedings.

As to the claim against Silliphant, however, we affirm. As with Shigakene, the record does not support a duty to warn Mathew's parents or his therapist that he posed an immediate risk of harm to himself.

We acknowledge that Dr. Jackson criticized Silliphant. These criticisms or deviations from the standard of care assume a treating relationship between Silliphant and Mathew that did not exist. Silliphant was a school psychologist who performed examinations and evaluations for the primary purposes of diagnosis and evaluation of the child's educational needs. See N.J.S.A. 18A:46-5, -5.1, -11; N.J.A.C. 6A:14-13.1, -13.4. Notably, Mathew's parents engaged a therapist to address the various issues that transcended the child's difficulties in the school setting. Therefore, all claims sounding in professional negligence were properly dismissed against Silliphant.


Plaintiff also asserts that he is entitled to compensatory damages pursuant to the IDEA and for damages pursuant to 42 U.S.C.A. § 1983 for violations of the IDEA. The motion judge dismissed the claims. He acknowledged a split of authority among the federal courts on the issue of the availability of compensatory damages for violations of the IDEA, and the Third Circuit had strongly suggested that compensatory damages may be available. W.B. v. Matula, 67 F.3d 484, 495 (3d Cir. 1995). Ultimately, however, he noted that the request for damages was unrelated to any educational services given or withheld from Mathew and that the claim was simply "about tort damages for negligence, pure and simple." Observing that the IDEA is an educational statute, he held that it does not provide a basis for an award of damages for pain and suffering or for a missed diagnosis of a psychiatric condition. Therefore, he dismissed the claims asserted pursuant to the IDEA and 42 U.S.C.A. § 1983.

Following oral argument, the Court of Appeals for the Third Circuit, sitting en banc, addressed the issue whether an action can be maintained against school officials under 42 U.S.C.A. § 1983 for violations of the IDEA. In A.W. v. Jersey City Public Schools, 486 F.3d 791 (3d Cir. 2007), the court reexamined Matula in light of the reasoning in City of Rancho Palos Verdes v. Abrams, 544 U.S. 113, 125 S.Ct. 1453. 161 L.Ed. 2d 316 (2005), and held that such an action may not be maintained. It said that the IDEA "creates individually enforceable rights" in the class of students who have learning disabilities and require remedial and interventional services. A.W., supra, 486 F.3d at 802. The court also identified "an express, private means of redress" for an aggrieved party, the existence of which bars a § 1983 action "to remedy violations of IDEA-created rights." Ibid.

Similarly, the court held that § 1983 was not available to remedy violations of § 504 of the Rehabilitation Act. Id. at 805-06. The court stated that "[t]he remedies for violation of § 504 'are coextensive with the remedies available in a private cause of action brought under Title VI of the Civil Rights Act of 1964.'"*fn3 Id. at 804 (quoting Barnes v. Gorman, 536 U.S. 181, 185, 122 S.Ct. 2097, 2100, 153 L.Ed. 2d 230, 236 (2002)). Although the remedial scheme is less extensive than the IDEA remedial scheme, the availability of a judicial remedy was considered significant by the court. Ibid. Ultimately, the court held that "we will ordinarily infer that when a private, judicial remedy is available for alleged statutory violations, this remedy is intended to be exclusive." Id. at 805 Consequently, § 1983 is not available to provide a remedy for a violation of § 504 of the Rehabilitation Act. Id. at 805-06.

Plaintiff's suggestion, that the ineffective nature of remedies under the IDEA and § 504 due to his current condition excuses resort to those remedies, is unavailing. This argument flies in the face of recent precedent and also misperceives the right created and remedies provided by the IDEA and § 504. The remedies provided by Congress are designed to specifically address a specific wrong. Blum v. Int'l Ass'n of Machinists, 80 N.J. Super. 37, 43 (App. Div. 1963), aff'd, 42 N.J. 389 (1964). Congress did not authorize a general compensatory damages scheme for injuries sustained while a child is a student.


In conclusion, we hold that summary judgment as to all parties, except for Shigakene and the Hunterdon Medical defendants, was properly granted. As to Shigakene and the Hunterdon Medical defendants, we reverse the summary judgment in their favor and remand for further proceedings consistent with this opinion.

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