Cowan v. Doering

• Decision Date: 15 January 1987
• Citation: 522 A.2d 444,215 N.J.Super. 484
• Parties: Marilyn M. COWAN, formerly known as Marilyn M. Lombardo, Plaintiff-Respondent, v. Richard DOERING, M.D., Alexandre Ackad, M.D., Kathleen Barlics, R.N., Carole Eltridge, R.N., and the Valley Hospital, Defendants-Appellants, and Allwyn J. Levine, M.D., Lois Papp, R.N., Chris Taylor, R.N., Sharon Kroll, R.N., Mary Doe, Jane Doe, Betty Doe and Nancy Doe, Defendants.
• Court: New Jersey Superior Court — Appellate Division

Page 484

215 N.J.Super. 484

522 A.2d 444

Marilyn M. COWAN, formerly known as Marilyn M. Lombardo Plaintiff-Respondent, v. Richard DOERING, M.D., Alexandre Ackad, M.D., Kathleen Barlics, R.N., Carole Eltridge, R.N., and the Valley Hospital, Defendants-Appellants and Allwyn J. Levine, M.D., Lois Papp, R.N., Chris Taylor, R.N Sharon Kroll, R.N., Mary Doe, Jane Doe, Betty Doe and Nancy Doe, Defendants.

Superior Court of New Jersey Appellate Division.

Argued Dec. 16, 1986.

Decided Jan. 15, 1987.

John P. Markey, Hackensack, for defendant-appellant Richard Doering (Markey, Dailey & Cagney, attorneys; John P. Markey, on the brief).

James B. Sharp, Roseland, for defendant-appellant Alexandre Ackad (Conway & Reiseman, attorneys; James B. Sharp, of counsel; M. Arthur Arnold, Millburn, on the brief).

Peter R. Feehan, Hackensack, for defendants-appellants Valley Hosp. and Carole Eltridge (Feehan & Feehan, attorneys; Peter R. Feehan, on the brief).

William B. Butler, Westfield, for plaintiff-respondent (Hooley, Butler, DiFrancesco & Kelly, attorneys; William B. Butler, on the brief). Before Judges PRESSLER, BAIME and ASHBEY.

The opinion of the court was delivered by

BAIME, J.A.D.

Following a lengthy jury trial, plaintiff was awarded $600,000 in compensatory damages for injuries sustained when she jumped from a second-story window while being treated at Valley Hospital for an overdose of sleeping pills. Drs. Richard Doering and Alexandre Ackad, nurses Carole Eltridge and Kathleen Barlics and Valley Hospital filed separate appeals from the judgment. Barlics' appeal was subsequently dismissed for procedural reasons which need not be recited. We consolidated the remaining appeals and now affirm.

Plaintiff's action against Dr. Ackad, nurses Eltridge and Barlics and Valley Hospital was premised primarily on their failure to take appropriate precautionary steps to prevent her from attempting to commit suicide. Dr. Ackad was the treating physician and nurses Eltridge and Barlics were assigned to the intensive care unit when plaintiff was admitted. It is undisputed that plaintiff had a history of suicidal acts having overdosed on two prior occasions. Plaintiff contended that Dr. Ackad was negligent in failing to order a "suicide watch" ¹ and in not taking other measures to safeguard her from self-inflicted injury. Plaintiff's claim against nurses Eltridge and Barlics was predicated on allegations that they failed to properly monitor her condition and prevent her from committing self-destructive acts. The negligence of Dr. Doering was premised essentially upon his having improperly dispensed sleeping pills to plaintiff knowing that she harbored suicidal propensities.

The essential facts are largely undisputed. Plaintiff first became acquainted with Dr. Doering when she commenced her employment with Valley Hospital. Plaintiff, a registered nurse, was assigned to the intensive care unit. Dr. Doering was a general and vascular surgeon at the hospital. At the time they met, plaintiff and Dr. Doering were both married, but were experiencing severe marital problems. Their relationship rapidly developed into a "romantic attachment," but the couple did not engage in intercourse because of Dr. Doering's impotency. Although they discussed marriage, Dr. Doering never expressly promised that he would leave his wife. Nevertheless, plaintiff testified that Dr. Doering led her to believe that he would eventually marry her.

As their relationship progressed, plaintiff became increasingly anxious and depressed. Pursuant to Dr. Doering's recommendation, plaintiff visited a gynecologist who prescribed nembutal, a strong sedative. On April 10, 1981 plaintiff was extremely depressed and attempted to commit suicide by swallowing a large quantity of the prescribed pills. Plaintiff was immediately transported to Valley Hospital where she was placed under the care of Dr. Ackad. Although plaintiff never became violent during her hospitalization, it is undisputed that she attempted to disconnect the intravenous tubes and remove herself from chest and wrist restraints. Aware of these developments and the reason for plaintiff's admission, Dr. Ackad called for a psychiatric consultation with Dr. Allwyn Levine.

Following her discharge on April 12, 1981, plaintiff continued under the care of Dr. Levine on an out-patient basis. During this period, plaintiff received psychotherapy twice each week. Dr. Levine decided against prescribing anti-depressant drugs because he believed that plaintiff was "unreliable" and harbored a "potential to overdose."

Plaintiff and Dr. Doering continued their illicit relationship. Although Dr. Doering was aware that plaintiff was being treated by Dr. Levine, the couple discussed the subject "only in the vaguest sense." Plaintiff continued to experience anxiety and sleeplessness. On several occasions, she asked Dr. Doering for nembutal. Initially, Dr. Doering refused but he subsequently relented. According to plaintiff's testimony, Dr. Doering gave her a prescription for nembutal which she destroyed. She testified that he subsequently gave her a bottle containing ten nembutal pills. Dr. Doering denied having provided plaintiff with the medication. He admitted, however, that he had given her a prescription for a small quantity of nembutal pills. Dr. Doering testified that he prescribed the medication because he was concerned that plaintiff's insomnia "might hinder" the progress of her psychiatric treatment.

As noted previously, Dr. Doering had been impotent for some period of time. However, on June 23, 1981, Dr. Doering was able to have an erection and the couple engaged in intercourse. Plaintiff believed that the event was significant and might ultimately precipitate a decision by Dr. Doering to leave his wife. On the following morning, plaintiff telephoned Dr. Doering and mentioned that she was considering moving to her parents' home in Connecticut. Contrary to plaintiff's expectation, Dr. Doering made no attempt to dissuade her but rather suggested that such a course was the "correct one" and would "be best for all of us." Dr. Doering also told plaintiff that he would not leave his wife.

On the next morning, plaintiff locked the doors to her house and swallowed ten nembutal pills. According to plaintiff, she was "desperate" and wanted to die. After ingesting the pills, plaintiff telephoned Dr. Doering who immediately contacted the police. Plaintiff was transported to Valley Hospital where she was again placed under the care of Dr. Ackad.

We need not fully describe the course of plaintiff's treatment in the intensive care unit. Restraints were placed on plaintiff's chest and wrists. In addition, plaintiff was "hooked up to a cardiac monitor" which had a screen at the central nurse's station. If the patient were to disengage herself from this device, the screen would "show a straight line" and an alarm would sound. Although plaintiff initially appeared extremely lethargic, she subsequently became agitated and attempted to remove the restraints and disconnect the intravenous tubing. While aware of these developments, Dr. Ackad did not order a suicide watch. According to his testimony, he believed that such a course was unnecessary because plaintiff's bed railing was up, restraints had been placed on her chest and wrists, her door was open and she was in the direct line of the nurses' vision.

At approximately 10 p.m., Dr. Doering appeared in plaintiff's room and ordered Barlics, the attending nurse, to leave. Although the door to plaintiff's room had been opened at the time, Dr. Doering closed it after Barlics left. Barlics proceeded to the adjoining room where she and Eltridge treated another patient. When Barlics heard the door to plaintiff's room close, she assumed that Dr. Doering had departed. Upon entering the room, she noticed that plaintiff's bed was empty. She called for Eltridge, who ran into the room, saw an open window and heard moaning from outside. Plaintiff was found lying on the ground two stories below. She had apparently jumped from the open window and had sustained severe personal injuries.

Much of the evidence presented at trial pertained to plaintiff's mental or emotional illness. All of the experts substantially agreed that plaintiff suffered from a "borderline personality syndrome." This condition is characterized by extreme "impulsivity or unpredictability," a pattern of unstable and intense interpersonal relationships exhibited by "marked shifts in attitude, devaluation and manipulation," inappropriate and intense anger and frequent displays of temper, depression, irritability and anxiety, and "physically self-damaging acts such as suicidal gestures, self-mutilation or recurrent accidents or fights."

While all of the experts concurred in this diagnosis, they expressed substantial disagreement regarding the genuineness of plaintiff's attempts to commit suicide. Dr. Seymour Kuvin testified that plaintiff was suicidally depressed when she ingested the nembutal pills and when she jumped from the window of the intensive care unit. He viewed plaintiff's conduct as a genuine attempt to commit suicide. Defendants' expert, Dr. Ari Kiev, testified that plaintiff did not seriously intend to kill herself when she ingested the pills and when she jumped from the second-story window. He characterized these acts as "manipulative" conduct designed to seek attention.

Defendants Doering, Ackad and Valley Hospital, through its employees Barlics and Eltridge, were all found negligent. The jury awarded $600,000 to plaintiff and apportioned fault among the various defendants as follows: Dr. Doering, 50%; Dr. Ackad, 35%; Barlics, 5%; Eltridge, 10%. Judgment was entered accordingly and these appeals followed.

I

The principal argument advanced by all defendants is that the trial judge erred when he refused to instruct the jury on plaintiff's negligence. The question of contributory negligence had been...