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McGrath v. Yosry


March 3, 2008


On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-7331-04.

Per curiam.


Argued November 8, 2007

Before Judges Wefing, Parker and Lyons.

In this medical malpractice action, plaintiffs Patricia and Heather McGrath appeal from three orders entered on July 14, 2006 granting summary judgment in favor of the defendants dismissing the complaint against them. Plaintiffs also appeal from an order entered on August 4, 2006 denying their motion for reconsideration. We affirm.

Patricia was the wife of Garry McGrath. Garry shot Patricia, seriously injuring her, and then killed himself on October 12, 2002 in the family home. Patricia alleged that the defendants were negligent in treating Garry and that they failed to warn and protect her from Garry's violent behavior. Their twenty-seven-year-old daughter, Heather, witnessed the shootings and pursued a Portee*fn1 claim.

Defendants, St. Barnabas Behavioral Health Center and St. Barnabas Health Care System (St. Barnabas), admitted Garry for psychiatric care on November 13, 2001, following Garry's ingestion of "50 to 100 Phenobarbital pills with alcohol." Garry was diagnosed with Major Depressive Disorder and treated by defendant Dr. Raymond Baum. Dr. Baum prescribed Wellbutrin and released Garry after two days, referring him to Dr. Yosry and Mr. Horen for outpatient treatment.

Defendant Mohamed H. Yosry, M.D., a psychiatrist, treated Garry after his discharge from St. Barnabas. Between December 2001 and July 2002, Dr. Yosry prescribed a number of medications such as Wellbutrin, Zoloft and Prozac. Dr. Yosry's records show Garry's depression continued during that period of time. On August 29, 2002, Dr. Yosry wrote to Garry stating that Garry had not returned for a follow-up visit since July 23 and "must have run out of medicine." Dr. Yosry recommended that Garry either make an appointment with Dr. Yosry or see another psychiatrist for medications and continue to see Mr. Horen for therapy.

Defendant Allan J. Horen, M.S.W., a clinical social worker, also treated Garry after his discharge from St. Barnabas. Garry visited Mr. Horen for counseling on three occasions between November 2001 and January 2002. Mr. Horen's records show a diagnosis of Major Depression on the second visit, but notes Garry's denial of depression on the third (and final) visit.

Defendant Lawrence J. Grill, M.D., an internist, was Garry's primary care doctor since 1991. In 1999, Dr. Grill noted that Garry was "chronically (2 years) angry and depressed," and that the condition was worsening. In June, 2002, four months before Garry's suicide, Dr. Grill noted that Garry felt well, was taking Prozac, and was seeing Dr. Yosry for marital problems. Just under a month before Garry's suicide, Dr. Grill noted that Garry had switched from Prozac to Celexa, and felt worse. Dr. Grill's records did not note that Garry had been hospitalized for a suicide attempt in November 2001 because Dr. Grill had not been made aware of it.

Patricia claims that in July 2002 Garry threatened her with a knife. Plaintiffs allege that defendants failed to warn and protect them from Garry's violent attack on October 12, 2002 and failed to diagnose and treat Garry, resulting in their injuries.

In support of their negligence claim, plaintiffs submitted a one-page "preliminary forensic psychiatric report" on May 30, 2006, the last date for submission of expert reports. In June 2006, the mental health practitioners moved for summary judgment on the ground that they were immune from liability under N.J.S.A. 2A:62A-16. On June 28, 2006, almost a month after discovery closed, plaintiffs submitted a more lengthy report by Dr. Alberto M. Goldwaser, M.D., in opposition to defendants' motions for summary judgment.

In rendering her decision, the trial judge found the following:

In terms of immediacy, there is nothing in the record, absolutely nothing that showed that [Garry] had any violent ideations expressed anywhere during the course of his treatment, which was not short lived, which was long in time, that he was going to hurt anybody else other [than] himself, and not in a violent nature. Someone taking fifty Phenobarbital's with vodka is very different [from] taking a gun and shooting someone. And in terms of the violence of the actions, against himself or against another person. And I think that's very important to note. By Heather McGrath's own admission she relied on her father saying that he told Dr. Yosry about what had happened. But yet Dr. Yosry sends a letter to Dr. McGrath telling him . . . [that defendant should come back] and nothing was done about that. There's no intercession . . . by [Heather or Patricia] on behalf of [Garry]. Or that [Garry] did contact Dr. Yosry. [Heather] admits that she never called the police about that [earlier] knife incident, she doesn't know if Dr. Yosry knew. She doesn't have any first hand knowledge that he knew, other [than] her father telling her that he knew. Her father was not compliant with his medical care. He was not - he had a host of medical problems, as well as psychological problems, and he wasn't compliant with any of those things.

That's - the record is absolutely clear on that topic.

I don't believe that the statute is applicable here, because he had not seen Mr. Horen in ten months, he had not seen Dr. Yosry in three months, despite Dr. Yosry sending a letter asking him to come back. He had not been at St. Barnabas Hospital or seen Dr. Baum . . . for eleven months. In the intervening three months - as short as three months with the knife incident, again, nothing was done to report to . . . these three professionals that there was an escalation in [Garry's] suicide, in the escalation of how he felt about his wife. Marital difficulties could be a whole host of things . . . it could be anything. I don't think that you can just extrapolate that all of a sudden to violence in the household to the point where there's a knife being used.

And in terms of the immediacy of the danger, [Garry] never in anything that has been submitted to the court, which I'm assuming there's a complete and total record, and, as I said, I've read every single page of it, is that there was nothing there that showed that he had violent feelings for his wife. Really, I thought that he spoke of really loving her all throughout the record, and he suspected certain things, but again there was nothing there.

I don't believe . . . we can say that there's any facts in dispute here that would allow for this case for anything to be established as a prima facie case. I'm accepting Dr. Goldwaser's report that is late, and even using that, and giving every single implication that I possibly can, I don't see how any of these three professionals could be held to a deviation of the standard of care, could be held in any violation of the statute that's been enumerated here. So, I'm granting summary judgment.

On their motion for reconsideration, plaintiffs argued that Marshall v. Klebanov, 378 N.J. Super. 371 (App. Div. 2005), aff'd as modified and remanded, 188 N.J. 23 (2006), demanded a contrary result. The trial judge disagreed, stating:

[N]othing that has been argued convinces me that I erred in this matter, not even the new opinion on Marshall v. [Klebanov] . . . and therefore the holding in that case doesn't really impact on my holding here.

Dr. Grill's motion for summary judgment was argued the same day plaintiffs argued their motion for reconsideration. The trial judge, finding that Dr. Goldwaser's report was a net opinion, granted summary judgment dismissing the complaint against Dr. Grill.

In this appeal, plaintiffs argue that (1) the trial court erred in deciding that N.J.S.A. 2A:62A-16 provides the exclusive cause of action against a mental health practitioner for violent acts of a patient; (2) even if the trial court was correct in its application of the statute, summary judgment was inappropriate because there were factually disputed issues; and (3) the trial court erred "in sua sponte ruling on reconsideration, without any explanation, that plaintiffs' expert report is actually 100% net opinion as to all defendants" and in failing to conduct a hearing on the expert's report.

We first address the issue of statutory immunity. N.J.S.A. 2A:62A-16a provides immunity to licensed mental health practitioners "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 section and fails to discharge that duty as set forth in subsection c. of this section." The duty to warn is imposed under the following conditions:

(1) The patient has communicated to that practitioner a threat of imminent, serious physical violence against a readily identifiable individual or 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 a readily identifiable individual or against himself. [N.J.S.A. 2A:62A-16b.]

The statute further provides that a mental health professional "shall discharge the duty to warn and protect as set forth in subsection b . . . by doing 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 provisions of [N.J.S.A. 30:4-27.1 et seq.];

(2) Initiating procedures for involuntary commitment of the patient to a short-term care facility, special psychiatric hospital or a psychiatric facility, under the provisions of [N.J.S.A. 30:4-27.1 et seq.];

(3) Advising a local law enforcement authority of the patient's threat and the identity of the intended victim;

(4) Warning the intended victim of the threat, or, in the case of an intended victim who is under the age of eighteen, warning the parent or guardian of the intended victim; or

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

Absent the circumstances described in the statute that trigger a duty to warn, mental health practitioners are immune from "any civil liability for a patient's violent act against another person or against himself." N.J.S.A. 2A:62A-16a.

Plaintiffs argue that the trial court erred in finding N.J.S.A. 2A:62A-16 the exclusive remedy against mental health practitioners for violent acts of a patient. The language of the statute clearly states that licensed mental health practitioners are "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" as defined in the statute. N.J.S.A. 2A:62A-16a. The immunity statute is a codification of the practitioner's duty to warn of a patient's imminent threat of violence without fear of violating the ethical constraints of confidentiality. Marshall, supra, 378 N.J. Super. at 379. The statutory immunity does not, however, apply to allegations that a mental health practitioner has been negligent in the care of a patient or has abandoned a patient. Marshall, supra, 188 N.J. at 38. "If a physician deviates from the applicable standard of care in the treatment of a patient and that deviation proximately causes harm to the patient, then the physician is liable for damages caused by his or her professional negligence." Id. at 34.

Here, in addition to allegations that defendants failed to warn and protect, plaintiffs alleged negligence, specifically that defendants "deviated from generally accepted standards of care in their diagnosis and/or care and/or treatment of the decedent . . . and were otherwise negligent, which acts and/or omissions resulted in delay in diagnosis and treatment of decedent's violent behavior." Thus, while the statutory immunity does apply to the duty to warn and protect claims, the immunity does not apply to the negligence allegations.

Plaintiffs' only allegation with respect to the duty to warn is Heather's assertion that after the July 2002 incident during which Garry threatened to kill his wife, Heather told her father to report the incident to his therapist. She claimed that sometime thereafter, her father told her that he had talked to his therapist about the incident. Although Heather was present during the July 2002 incident, she testified at her deposition that she was not afraid nor did she believe her "mother was in any actual physical danger." Neither the police nor Garry's doctors were called by family members to report the incident, and Heather's claim that her father told her he related the incident to his therapist is unsupported by any corroborative evidence.

Plaintiffs argue that Marshall "involved virtually the same central legal issue presented here," and is dispositive here. In Marshall, plaintiff alleged that the defendant psychiatrist refused to see the decedent because she did not have a check for payment. 188 N.J. at 30-31. The psychiatrist claimed that, even though the decedent did not have payment or clearance from her insurance company, he would have seen her but she declined to wait. Id. at 31. The Supreme Court affirmed the grant of summary judgment applying statutory immunity to the claim that the defendant had a duty to warn that the decedent was in imminent danger of committing suicide, because both the decedent's husband and mother testified that nothing in the weeks preceding the decedent's suicide indicated that she was in imminent danger. Id. at 40. Nevertheless, 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 remanded the matter for further proceedings on the disputed facts as to whether the psychiatrist "abandoned" the decedent two days prior to her suicide. Id. at 39.

This case is substantially different from Marshall. Here, there is no evidence to indicate that any of the defendants abandoned Garry. The evidence is undisputed that Garry did not see any of the mental health practitioners for several months before he shot his wife and killed himself on October 12, 2002, and there is no evidence whatsoever that they abandoned him. Indeed, on August 29, 2002 -- two months before the suicide -- Dr. Yosry wrote to Garry, urging him to return to treatment. Dr. Grill, Garry's internist, saw Garry one month before the suicide and noted that Garry's medication had been changed. Nothing in the record indicates that Dr. Grill abandoned Garry or was otherwise negligent in his treatment.

As in Marshall, Garry's family did not perceive any imminent danger of harm to Garry or others. Even after the July 2002 incident, Garry's family members did not believe themselves to be in danger; they did not call the police, nor did they report the incident to any of Garry's mental health practitioners.

The Supreme Court in Marshall distinguished between duty to warn claims, which are subject to statutory immunity, and common-law negligence claims:

A practitioner's common-law duty to exercise that degree of care, knowledge, and skill for his or her patient that would be followed by any reasonable member of the profession under like circumstances exists separate and apart from any duty to warn and protect pursuant to N.J.S.A. 2A:62A-16. [188 N.J. at 38.]

The "Preliminary Report" Authored by Dr. Goldwaser States in Its Entirety

The following is a preliminary forensic psychiatric report in this matter. Among the documents I have reviewed in this matter include the following: 1. Medical Records of Lawrence Grill, M.D.; 2. Saint Barnabas Behavioral Health Center records; 3. Pharmacy Records; 4. Psychotherapy progress notes of Allan Horen, M.S.W.; 5. Medical Records of Mohamed H. Yosry, M.D.; 6. Death certificate of Garry W. McGrath; 7.

Narrative statement of Heather Madrigal (Dr. McGrath's daughter); 8. Narrative statement of Brian McGrath; 9. Deposition transcript of Heather McGrath; 10. Discovery responses of the parties.

Based on my review of this matter, I conclude within a reasonable degree of medical probability that the medical (psychiatric) treatments provided to Garry W. McGrath by Mohamed H. Yosry, M.D.; Lawrence J. Grill, M.D.; Allan J. Horen, M.S.W.; Raymond Baum, M.D.; Saint Barnabas Behavioral Care Center; and Saint Barnabas HealthCare System departed from the accepted standard of medical/psychiatric practice and were a cause of the gunshot and related injuries to Pat McGrath and her daughter, Heather Madrigal who was a witnesses [sic] to the incident of October 12, 2002. The psychiatric treatments that Garry W. McGrath was provided from his hospital admission to the time of his death departed from accepted standards of medical/psychiatric care, and were the proximate cause of his attempted murder of his wife.

As indicated, this is a preliminary report and a more comprehensive report will be provided upon further review of information and collaboration with counsel for Pat and Heather McGrath.

Clearly, this report is a net opinion. Buckelew v. Grossbard, 87 N.J. 512, 524 (1981). ([A]n expert's bare conclusions unsupported by factual evidence, is inadmissible").

Dr. Goldwaser's second report, rendered on June 26, 2006, relates Garry's extensive psychiatric history from the medical records and concludes that:

Based upon the documents I reviewed:

It is my opinion within a reasonable degree of medical probability that the psychiatric and psychotherapeutic treatments that Garry W. McGrath was provided from his hospital admission to the time of his death departed from acceptable medical standards of medical/psychiatric care, and were the proximate cause of his attempted murder of his wife and his demise.

Thereafter, Dr. Goldwaser reiterated most of the facts set forth previously with commentary. What is problematical about Dr. Goldwaser's report is that it appears to be based upon an assumption that the treating practitioners had information they did not have. Dr. Goldwaser apparently assumed that Garry had reported that information to the psychiatric professionals.

While Dr. Goldwaser's report indicates that the psychiatric professionals failed to take certain actions, he did not state a source of a standard of care, nor did he make any specific references to conduct that fell below the accepted standard of care, other than to state:

In conclusion, within a reasonable degree of probability, had defendants' care of Dr.

McGrath not fallen below the accepted standard of care as described herein, the injuries to Pat McGrath and her daughter, Heather Madrigal, probably would not have occurred.

In addressing the summary judgment motions, the trial judge accepted the late report "and giving it every single implication that I possibly can, I don't see how any of these three professionals could be held to . . . a deviation of the standard of care." On plaintiffs' motion for reconsideration, the judge simply stated that Dr. Goldwaser's "opinion was a net opinion and really doesn't address proximate cause."

Plaintiffs argue that on the motion for reconsideration the court "sua sponte" determined that the plaintiffs' expert's report was merely a net opinion, and that the determination was a "backup measure" to support the original grant of summary judgment.

We agree with the trial court's initial assessment that the report fails to state a source of a standard of care and fails to state how each defendant deviated from a specified standard. An expert report that fails to provide a jury with an applicable standard of care based on generally accepted standards in the community is a net opinion. Taylor v. DeLosso, 319 N.J. Super. 174, 179-80 (App. Div. 1999). We are satisfied that, although the trial court's decision on reconsideration was conclusory, it was correct in its determination that the expert's report was a net opinion.

The requirements for a medical malpractice claim were articulated by the Supreme Court in Gardner v. Pawliw, 150 N.J. 359, 375 (1997):

To establish a prima facie case of negligence in a medical-malpractice action, a plaintiff must present expert testimony establishing (1) the applicable standard of care, see Rosenberg v. Cahill, 99 N.J. 318, 325 (1985); (2) a deviation from that standard of care, see Clark v. Wichman, 72 N.J. Super. 486, 496 (App. Div. 1962); and (3) that the deviation proximately caused the injury, see Germann v. Matriss, 55 N.J. 193, 205 (1970).

Here, Dr. Goldwaser's report (1) does not establish a standard of care for each practitioner; (2) does not describe how each practitioner deviated from the applicable standard of care; and (3) does not demonstrate that any of the practitioners' actions proximately caused Garry to shoot his wife and commit suicide in October 2002.

Plaintiffs further argue that the court should have conducted a hearing pursuant to Kemp ex rel. Wright v. State, 174 N.J. 412 (2002), to give their expert "the opportunity to fully explain" the opinions in his report. Plaintiffs misconstrue Kemp. In that case, liability was premised on birth defects allegedly caused by a rubella vaccine. Id. at 415. The plaintiffs' expert testified in deposition as to the nature and cause of the injuries to the child. Id. at 418-19. The expert included an explanation of his methodology and references to studies supporting his opinions. Ibid. The issue in Kemp was whether the expert's conclusion was based on "an accepted scientific methodology." Id. at 420. The Court held that a hearing under N.J.R.E. 104 is required where the scientific reliability of an expert's testimony is disputed. Id. at 432.

Here, the expert provided no methodology and no references to studies underlying his opinions. Dr. Goldwaser's report did not articulate standards of care applicable to a psychiatrist, an internist, or a social worker, let alone explain the sources for those standards. Because the report contained no scientific studies or methodology that could be subjected to a Rule 104 hearing, we find no basis for a Kemp hearing.

We have carefully considered the record in light of plaintiffs' arguments and we are satisfied that summary judgment was properly granted. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).


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