On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-7331-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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 ...