ESTATE OF HETMANSKI v. RAHWAY HOSPITAL No. A-5185-09T4.

ESTATE OF FREDERICK HETMANSKI and CATHERINE HETMANSKI, AS ADMINISTRATRIX AD PROSEQUENDUM FOR THE ESTATE OF FREDERICK HETMANSKI and CATHERINE HETMANSKI, Individually, Plaintiffs-Appellants/Cross-Respondents, v. RAHWAY HOSPITAL; MARTIN P. MAYER, M.D.; HEASUN LEE; KAREN VARGAS; JANET KARANEVICH; JANET DORO; and JANET DONOR, Defendants-Respondents, and MOTIVATED SECURITY SERVICES, Defendant-Respondent/Cross-Appellant, and B. ESTRELLAS, M.D.; DR. SINHA, M.D.; DR. GUERRERO, M.D.; JANET DIPASQUALE and GONZOLO MANNES, Defendants.

Superior Court of New Jersey, Appellate Division.
Decided September 1, 2011.
Wendy H. Smith argued the cause for respondent/cross-appellant Motivated Security Systems (Marshall, Dennehey, Warner, Coleman & Goggin, P.C., attorneys; Ms. Smith, on the brief).
Before Judges Axelrad, Lihotz and J. N. Harris.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

PER CURIAM.

Plaintiffs appeal from the jury verdict for defendants finding no cause of action in this wrongful death case, concluding defendant Rahway Hospital was negligent, but its conduct was not the proximate cause of the death of Frederick Hetmanski (decedent). Plaintiffs raise seven claims of error by the trial judge, challenging designated evidential determinations and the jury charge. We have considered each argument presented in light of the record and the applicable law. We affirm.

Additionally, defendant Motivated Security Services filed a defensive cross-appeal from the court's June 29, 2010 order. However, defendant Motivated Security Services failed to provide this court with a supporting brief regarding issues appealed, R. 2:6-2(d), and, therefore, did not advance any legal arguments in support of its cross-appeal as required by Rule 2:6-2(a)(5). Accordingly, the cross-appeal is dismissed.

Decedent sought emergency room (ER) treatment at defendant Rahway Hospital (Rahway) on September 5, 2002, complaining of depression, loss of appetite and an inability to sleep. Specifically, on September 5, 2002, decedent was admitted to the hospital, and, as a precautionary measure, held overnight for observation. Decedent was examined on the morning of September 6, 2002 by Martin P. Mayer, M.D., Chairman of the Department of Psychiatry at Rahway. Dr. Mayer diagnosed decedent with depressive disorder, not otherwise specified, with anxiety features. Dr. Mayer specifically noted decedent presented "no suicidality"; instead, decedent's insight and judgment were good. Dr. Mayer prescribed antidepressants Celexa and Remeron and advised decedent to locate a psychiatrist for follow-up treatment.

Decedent returned to the Rahway ER on September 7, 2002. Following a second examination on September 8, 2002, Dr. Mayer modified his diagnosis to "major depressive disorder." He specifically noted decedent "denied active suicidality, suicide plan or intent" and did not consider decedent to be an immediate or active suicide risk. The hospital records state decedent denied suicidal or homicidal ideations during his September 5 and 7 visits. Janet Karanevich-Dono, a psychiatric nurse involved in attending to decedent, recorded he was "very vague on thoughts of suicide — recent — denies plan." Decedent was prescribed Xanax for anxiety caused by depression and sleep medication. Dr. Mayer readmitted decedent to the hospital for further observation.

When plaintiff Catherine Hetmanski, decedent's wife, visited decedent the following morning on September 8 she spoke with Karanevich-Dono and expressed her concern for her husband's lack of improvement. Karanevich-Dono stated decedent could either be sent home or transferred to Newark Beth Israel Medical Center (Newark Beth Israel) for in-patient treatment. Decedent opted to go home and try to rest. Around 5:00 p.m., decedent's sister picked him up to go to her nearby home so he might escape the noise of his children and get some sleep. Decedent's sister phoned Catherine later that night and reported decedent was "starting to talk crazy" and she decided to take him to Rahway's ER. Decedent was readmitted to Rahway in the early morning hours of September 9, 2002.

Karanevich-Dono spoke to decedent upon his readmission and recorded these notes: "on 9/8 Pt very vague on thoughts of suicide, no plan — unable to even describe a thought." On the assessment check list, she marked "suicidal ideation." Dr. Mayer examined decedent on two occasions when he arrived that morning and recommended decedent be transported to Newark Beth Israel for in-patient psychiatric treatment. Decedent agreed to this proposal. Dr. Mayer viewed decedent's willingness to seek in-patient treatment as significant and "believe[d] the patient was cooperative with care[,] [] followed my recommendations, [] was going as a voluntary patient and wanted to get better."

At trial, Dr. Mayer discussed this further. He maintained that because "there were no specific suicide plans or thoughts," the nurses' notes as written represented a "very weak signal about any kind of suicide mentation." Dr. Mayer also explained there was no basis to detain decedent and he could have changed his mind about in-patient treatment at any time and he could have "simply left" Rahway. Also, had decedent been admitted to Newark Beth Israel, he could have left at any time.

Before decedent could be transferred to Newark Beth Israel, it was required that he be medically cleared by an ER physician and his insurance company had to issue approval for in-patient care. Decedent was waiting at the hospital pending these events. At 2 p.m., Nurse Vargas completed blood work and decedent was taken to the radiology department for a chest x-ray. When the x-ray was completed, decedent was left unattended. Decedent was observed by Heasun Lee, an ER nurse, as he stood about three steps outside of the radiology department waiting room; his hospital gown was not tied in the back. She tied the gown and instructed decedent to walk back to the radiology department waiting room. Lee was aware decedent was a psychiatric patient who was scheduled to be transferred to an in-patient facility. She stated he seemed alert, oriented and cooperative and followed her instructions.

Decedent was next seen on the fifth floor roof by another Rahway patient. Nurse DiPasquale, accompanied by two maintenance workers, reported to the fifth floor roof. Seeing decedent, DiPasquale yelled "hey." Decedent jumped off the roof's edge, landing on the adjacent third floor roof. He died shortly thereafter of injuries sustained in the fall.

During trial, Peter Semler, Rahway's chief maintenance mechanic, testified that someone seeking to reach the roof would have to be very determined to do so. If someone wanted to reach the fifth floor, the roof was accessible only by first climbing a ladder, opening a hatch and climbing through to reach the water storage tank room. Thereafter, in order to reach the roof one had to step onto pipes, climb a second ladder, crawl on top of a water tank and push open a second hatch directly above the tank. Semler acknowledged that on the day of decedent's death, the hospital did not utilize key restrictions on elevators traveling to the fifth floor, as the floor was used only for storage and as a sleeping area for doctors on extended shifts. He also noted that the hatches on the fifth floor were left unlocked because they provided emergency access to the elevator pulley system and plumbing valves.

In addition to the fact witnesses, plaintiffs presented expert testimony regarding the standard of care governing the conduct of the psychiatric nurses and the attending physician. Dr. Wanda Mohr, an expert in psychiatric nursing, opined nurses Lee and Vargas each breached the relevant nursing standard of care by failing to recognize decedent's potential for self-harm and by leaving him unattended despite his depression and status as a psychiatric patient. Dr. Mohr expressed the opinion that "one-on-one observation" should have been instituted or, at the very least, decedent should have been "very closely observed" and "those deviations made a substantive contribution to" decedent's suicide. Douglas Anderson, M.D., a psychiatrist, asserted decedent's suicide would have been prevented had Dr. Mayer not breached the relevant psychiatric standard of care. Dr. Anderson opined the failure to order decedent be supervised pending his transfer to Newark Beth Israel was negligence. On cross-examination, Dr. Anderson conceded decedent never revealed a plan or present intent to commit suicide to anyone during his three visits to Rahway.

Plaintiffs also presented Paul Calandra, an expert in hospital safety and security, who stated hospital staff members were improperly trained in necessary patient safety issues, including requiring a lock on the first hatch on the fifth floor. Plaintiffs also presented an expert who quantified the economic loss suffered by decedent's family.

In the defense's case, Nurse Karanevich-Dono testified Rahway's policy regarding precautionary measures such as one-on-one observation could only be instituted pursuant to a physician's order. She explained she could lose her nursing license or be fired if she attempted to act independently of a physician signing off on monitoring. Dr. Mayer also testified. He acknowledged he had not ordered any special precautions because decedent's commission of suicide was "not expected and certainly unanticipated in every way." He noted Dr. Guerrero also evaluated decedent hours before his suicide and found no need for constant observation. Dr. Mayer opined that restrictive precautionary measures, such as constant supervision, often had a negative impact on a patient because they increase nervousness and anxiety. Dr. Mayer elaborated, stating "[w]ith any medical decision, it's a risk versus benefit decision and you have to use your judgment to decide what's best for the patient."

Kenneth Tardiff, M.D., a psychiatrist, also testified as an expert. Dr. Tardiff opined that "the care rendered by Dr. Mayer. . . was above the standard of medical care." Given the information available to medical personnel at the time, Dr. Tardiff agreed with Dr. Mayer's impression that decedent did not evince a risk of self-harm, stating "there is no evidence that [decedent] required any level of observation, certainly not constant observation. He wasn't identified as a suicide risk." Dr. Tardiff supported his conclusion, noting decedent denied a plan or intent to commit suicide, was compliant with care, was not psychotic, was employed and needed to support his family.

On appeal, plaintiffs urge reversal as a result of errors in the jury charge. When reviewing a jury charge, we "must consider the charge as a whole to determine whether the charge was correct." Toto v. Ensuar, 196 N.J. 134, 144 (2008). An incorrect jury charge constitutes reversible error only if the jury could have come to a different result had it been correctly instructed. Velazquez ex rel. Velazquez v. Portadin, 163 N.J. 677, 688 (2000). See also R. 2:10-2.

Plaintiffs argue the trial court erred in refusing to charge the jury that the decedent's conduct could not be considered when determining liability, proximate cause or damages and in omitting a necessary charge on a special duty of care. We examine these concerns.

Plaintiffs filed an in limine motion requesting the jurors be instructed that "they are not to consider plaintiffs' alleged negligence on any issue of liability, proximate cause, or damages because the comparative fault of the patient is entirely irrelevant to the issues presented in this case." This request was repeated at the charge conference.

On proximate causation, the court initially provided an abbreviated version of Model Jury Charge (Civil), 6.11, "Proximate Cause — Routine Tort Where No Issues Of Concurrent Or Intervening Causes, Or Foreseeability Of Injury Or Harm" (1999), omitting the first three sentences. In the course of deliberations, the jury requested the legal definition of proximate cause be repeated. Plaintiffs requested that the jury additionally be retold that decedent's conduct could not be considered "in any way, shape or form." The court denied the latter request and directed the jury regarding proximate cause by reading the entire model jury charge, stating:

By proximate cause, I refer to a cause that in a natural and continuous sequence produces the resulting injury and without which the resulting injury would not have occurred. A person who is negligent is held responsible for any injury that results in the ordinary course of events from their negligence. This means that you must first find that the resulting injury to [decedent] would not have occurred but for the negligent conduct of a particular defendant that you're looking at. All right? So negligence first, you have to see whether or no[t] negligence was proven. Okay? Second, you must find that that particular defendant whoever you're looking at, negligent conduct was a substantial factor in bringing about the resulting incident or injury. By substantial I mean the cause is not remote, trivial, or inconsequential. If you find that a particular defendant's negligence was a cause of the incident and that such negligence was a substantial factor in bring[ing] about this injury, this suicide, then you should find for the plaintiff. But if you find that a particular defendant was not negligent or that a particular defendant was negligent, but such negligence was not a substantial factor in bringing about this injury, then you should find for that particular defendant.

Plaintiffs maintain the trial court erred in refusing the request to repeat the specific direction that decedent's "conduct could not be considered on any issue of liability, proximate cause or damages." We disagree.

In Tobia v. Cooper Hosp. Univ. Med. Ctr., 136 N.J. 335 (1994), the Supreme Court ordered a new trial because the trial court actually gave a contributory negligence charge to the jury, holding "when a health-care professional's duty includes exercise of reasonable care to prevent such a patient from engaging in self-damaging conduct, the health-care professional may not assert contributory negligence as a defense to a claim arising from the patient's self-inflicted injuries." Id. at 338. See also Cowan v. Doering, 111 N.J. 451, 468 (1988) (affirming the trial court's sua sponte refusal to provide a contributory negligence charge in an action alleging defendant's failure to prevent suicide because the "plaintiff's actions and capacity were subsumed within the defendants' scope of duty"); Hofstrom v. Share, 295 N.J.Super. 186, 188 (App. Div. 1996) (vacating a verdict as a result of the trial court's failure to "charge[] the jury to ignore defendants' allegation that plaintiff . . . had been contributorily negligent" in a medical malpractice action), certif. denied, 148 N.J. 462 (1997).

In the present case, the defense did not suggest decedent's conduct was to blame. Further, the trial court charged the jury as follows:

You're going to find — there's the allegation of negligence of all of the defendants. There is no allegation of negligence and you should not consider any allegation of negligence on the part of [decedent], all right? He's not in the equation here for any of your concerns, okay? Alright. So it's the negligence of that particular defendant as you're looking at that particular defendant.

We reject the notion that "the jury might have focused on whether [decedent] was negligent or that his actions are what proximately caused his death." Unlike Hofstrom, supra, there were no remarks suggesting decedent's fault which were "analogous to the situation where an attorney persists in making unwarranted prejudicial appeals to a jury which taint the verdict." 295 N.J. Super. at 193. Moreover, the court included an instruction that decedent's conduct was "not in the equation" "for any" of the jury's determinations.

Defendant's argument that decedent's actions were not relevant to any issue is unfounded. Even though decedent's conduct "had no relevance in terms of [] fault or contributory negligence, the evidence submitted concerning h[is] conduct was considered by the jury as it related to defendant's ultimate responsibility, through the concept of proximate cause." Cowan, supra, 111 N.J. at 465. The proximate cause charge and the instruction to ignore decedent's conduct combined to properly instruct the jury on the proper legal standards that guided its review.

It is fundamental that "[a] party is not entitled to have a jury charged in words of his own choosing. If the charge adequately covers the matter requested, there is no error." Mohr v. B. F. Goodrich Rubber Co., 147 N.J.Super. 279, 283 (App. Div.), certif. denied, 74 N.J. 281 (1977). Our review of the entirety of the charge satisfies us that the subject matter was adequately covered and no prejudicial error existed.

In its motion in limine, plaintiffs also requested the court to instruct the jury that defendants owed decedent, "a psychiatric patient at Rahway Hospital on September 9, 2002[,]" a "special duty of care" to prevent him "from engaging in self-damaging conduct such as suicide." At the charge conference, the trial court denied the request in favor of using the Model Jury Charge (Civil), 5.50A, "Duty and Negligence" (2002) regarding the duty owed by Dr. Mayer and Rahway's nurses.2

The determination of whether a duty of care exists is a legal question, Clohesy v. Food Circus Supermarkets, Inc., 149 N.J. 496, 502 (1997), which considers public policy and fairness. Kuzmicz v. Ivy Hill Park Apartments, Inc., 147 N.J. 510, 515 (1997). "A critical ingredient in the duty analysis is the foreseeability of the risk of injury." Pfenninger v. Hunterdon Cent. Reg'l High Sch., 167 N.J. 230, 251 (2001). "The foreseeability component entails the balancing of several factors—'the relationship of the parties, the nature of the attendant risk, the opportunity and ability to exercise care, and the public interest in the proposed solution.'" Ibid. (citing Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 439 (1993)).

In the present case, the foreseeability of decedent's suicidal risk was seriously disputed. Decedent had no prior history of suicide attempts, he was not physically impaired, properly followed instruction, was involved in his treatment and, although seriously depressed, he denied a present intent or plan to commit suicide. Although there were two notations in decedent's chart addressed to suicide proclivity, they were accompanied by notes stating his thoughts on suicide were "very vague." In assessing the evidence, the trial court properly rejected plaintiffs' request for a special duty of care instruction and followed the standard charge. "It is difficult to find that a charge that follows the Model Charge so closely constitutes plain error." Mogull v. CB Commercial Real Estate Grp., 162 N.J. 449, 466 (2000).

Plaintiffs' next series of challenges attack certain evidentiary rulings. Plaintiffs contend the court erred in: (1) not admitting Rahway's policy and procedure manual; (2) limiting Calandra's testimony; and (3) barring admission of charts prepared by plaintiffs' economic loss expert and decedent's tax returns.

We easily dispose of the third objection to the court's evidential rulings. Because the jury found no liability, economic loss was not considered. As discussed in our opinion, we find no basis to vacate the jury's verdict; therefore, we need not address these contentions. In our review of the remaining issues, we examine whether the court abused its discretion. See Benevenga v. Digregorio, 325 N.J.Super. 27, 32 (App. Div. 1999) (holding a trial judge's decision to admit certain evidence is entitled to broad discretion and reversed only when the trial court palpably abused its discretion), certif. denied, 163 N.J. 79 (2000).

Plaintiffs sought to introduce into evidence a portion of Rahway's Policy and Procedures Manual regarding "Suicide Precautions." Defendants objected, arguing the manual was dated three years after decedent's suicide; the relevant portion of the manual applied only to "patients presenting with suicidal tendencies," which was not applicable to decedent; and plaintiffs' expert, Dr. Anderson, did not testify regarding the manual or Rahway's policy. We find no abuse in the court's denial of admission of this document.

As a result of our questions at oral argument, a flurry of correspondence post-argument addressed whether the hospital's policy set forth in the 2005 manual had been unchanged from the time of decedent's death in 2002. However, the factual question is not determinative of the issue because the relevant portion of the manual sought to be introduced detailed instructions with respect to the care of "patients presenting with suicidal tendencies." Again, this factual issue was disputed and presented to the jury for deliberation and Dr. Anderson's mention of it was cut short by defense counsel's interjection and plaintiffs' redirection of the witness' testimony. We find no error.

Plaintiffs also challenge the court's ruling curbing Calandra's testimony regarding proper hospital security. Plaintiffs revealed Calandra was going to testify that for security purposes, psychiatric patients are "high risk people who have to be watched and not left unattended" and in Calandra's opinion, "Rahway Hospital deviated from reasonable industry standards . . . related to . . . the handling of [psychiatric] patients." The trial court determined Calandra was not qualified to offer such an opinion, noting "[t]his guy is far from a medical doctor, he's an ex-cop who worked in a hospital setting." We agree and determine plaintiffs' arguments lack sufficient merit to warrant extended discussion in our written opinion. R. 2:11-3(e)(1)(E). We offer these brief comments.

Generally, in malpractice cases "`evidence of a deviation from accepted medical standards must be provided by competent and qualified physicians.'" Estate of Chin by Chin v. St. Barnabas Med. Ctr., 160 N.J. 454, 469 (1999) (quoting Schueler v. Strelinger, 43 N.J. 330, 345 (1964)). Calandra was not a qualified physician and not qualified to opine regarding the standard of care for "handling" psychiatric patients.

Finally, plaintiffs' claims of cumulative error are unavailing in light of our determination on the claims raised. R. 2:11-3(e)(1)(E).

Affirmed. The cross-appeal filed by defendant Motivated Security Services is dismissed.

FootNotes


1. It is noted that Janet Karanevich, Janet Doro and Janet Donor are all variations of the name of one person, Janet Karanevich-Dono, R.N.
2. We note that in respect of Rahway and its security company, Motivated Security Services, however, the court used , 5.10A, "Negligence And Ordinary Care — General" (1984).

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