Gaido v. Weiser

Decision Date29 June 1988
PartiesAnna GAIDO, Administratrix ad Prosequendum and General Administratrix of the Estate of Peter Gaido, Plaintiff-Appellant, v. Sheldon WEISER, Defendant-Respondent, and St. Mary's Hospital, Carrier Foundation, Peter Bryan-Brown, Jan Kurdwanowski and Michael Brand, Defendants.
CourtNew Jersey Superior Court — Appellate Division

Zane Bouregy, Hackensack, for plaintiff-appellant.

Milton Gurny, for defendant-respondent (Hein, Smith & Berezin, attorneys; Milton Gurny, of counsel; Milton Gurny and Harold S. Berezin, Hackensack, on the brief).

Before Judges MICHELS, SHEBELL and A.M. STEIN.

The opinion of the court was delivered by

MICHELS, P.J.A.D.

Plaintiff Anna Gaido, Administratrix ad Prosequendum and General Administratrix of the Estate of Peter Gaido, appeals from a judgment of the Law Division entered in favor of defendant Sheldon Weiser (Dr. Weiser) on a molded jury verdict of no cause for action and from a denial of her motion for a new trial in this medical malpractice wrongful death action.

The facts giving rise to this appeal may be summarized as follows: in or about April 1965 decedent Peter Gaido, who resided with his plaintiff wife in Lodi, New Jersey, suffered a severe bout of depression which eventually led to his hospitalization in June of that year. During his stay at Hackensack Hospital, decedent attempted to commit suicide by cutting his wrists. As a result of this incident, decedent received regular psychiatric counseling for approximately one year and was placed upon anti-depressant medication. Although decedent stopped meeting with his psychiatrist in 1969, he continued taking the anti-depressant medication on a low dosage maintenance program.

In September 1981, decedent began experiencing numbness and tingling in his extremities. After these symptoms continued to worsen, decedent was examined by defendant Dr. Michael Brand, a neurologist, and placed in defendant St. Mary's Hospital in Passaic, New Jersey for evaluation. Although Dr. Brand diagnosed decedent's condition as multiple sclerosis, his neurological symptoms were greatly reduced as a result of treatment with the drug Prednisone.

Decedent returned from the hospital in early October 1981, and continued to make noticeable improvement. Around Christmas of that year, however, decedent began to express fears that his condition was worsening and became increasingly anxietal over his inability to support his family because he could not yet return to work. By January 1, 1982, decedent's depression was so severe that he repeatedly asked to be hospitalized "because he was afraid he was going to hurt himself." Accordingly, plaintiff placed him in the psychiatric unit at St. Mary's Hospital under the care of defendant Dr. Jan Kurdwanowski, a psychiatrist. While hospitalized, decedent attempted to commit suicide on January 9, 1982, by lacerating his wrists with a broken light bulb. Consequently, he was transferred on January 14th to defendant Carrier Foundation (Carrier) in Belle Meade, New Jersey for more extensive psychiatric therapy.

At Carrier, decedent was placed under the care of defendant Dr. Peter Bryan-Brown, a psychiatrist. After taking an extensive personal history of decedent, Dr. Bryan-Brown placed him in the institution's "closed unit" due to his suicidal ideations. Dr. Bryan-Brown diagnosed decedent as having a "major recurrent depressive disorder", which meant that he might attempt to commit suicide again sometime in the future. Thereafter, a plan of treatment was implemented which included the daily administering of Ludiomil, an anti-depressant medication, as well as individual and group psychotherapy. As a result of this treatment, decedent's mood improved significantly and he was transferred to the open unit of Carrier on January 30, 1982.

On February 5, 1982, decedent was discharged from Carrier and given a prescription for Ludiomil and a sedative, Dalmane. Although Dr. Bryan-Brown considered suicidal risk to be minimal at this time and believed that decedent's prognosis was good, he nevertheless conditioned his discharge upon follow-up psychiatric treatment. Accordingly, plaintiff contacted defendant Dr. Sheldon Weiser on February 2, 1982 and the parties agreed to arrange an appointment once decedent was discharged.

On February 5, 1982, plaintiff called Dr. Weiser after her husband had returned from Carrier and an appointment was scheduled for February 11, 1982. Although decedent seemed fine during the day, he awoke during the night despite having taken a sedative and could not fall back to sleep, a trait which he had exhibited prior to entering the hospital. When plaintiff called Dr. Weiser about this occurrence the following day, he attributed it to the anxiety of returning home. On February 6, 1982, decedent awoke in the middle of the night, however, and expressed to his wife the familiar concern of not being able to return to work. A similar situation occurred again on the following night of February 7, as decedent appeared to be regressing into an anxietal state over his health and financial ability.

The fact that these warning signs were returning in spite of decedent's regimen of medication compelled plaintiff to call Dr. Weiser on Monday morning, February 8, 1982, and ask that he see her husband that day. Dr. Weiser, however, assured plaintiff that her husband would be fine and that in any event he did not have any free appointments for that day. Although Dr. Weiser asked plaintiff whether decedent was "taking the medication" and apparently based his decision upon that fact, he later conceded at trial that he had no idea what medication was prescribed at Carrier, nor had he requested any information or records from the hospital or Dr. Bryan-Brown.

After a relatively uneventful Monday, decedent again woke up and engaged his wife in the same repetitive conversation regarding work and his physical well-being; this time even longer than before. Although the couple eventually fell back to sleep, plaintiff was awakened Tuesday morning at 6:00 a.m. by her daughter, Lisa, who told her that decedent was lying on the dining room floor and would not wake up. When plaintiff walked into the dining room, she observed a bottle of liquor on the table and was shocked to find her husband lying there in an alcoholic stupor. Eventually, she was able to rouse decedent and accompany him into the bathroom where he was sick for some time. When plaintiff asked him why he had done this, "[h]is reply was that he felt so bad when he woke up that he thought that if he had a drink, it would make him feel better."

This incident was particularly alarming to plaintiff because her husband rarely consumed more than one or two drinks per year. After putting decedent to bed, plaintiff called Dr. Weiser and informed him of this extremely uncharacteristic behavior and again requested that he see the decedent that day. Dr. Weiser replied that he did not have any open appointment time and that in any event the decedent "probably [would not] drink again since he was not a drinker." Despite plaintiff's insistence that her husband needed immediate psychiatric attention, Dr. Weiser agreed to prescribe something "to take the edge off of things" and instructed her druggist to fill a prescription for a tranquilizer known as Tranxene. This, he advised her, would be safe to take in conjunction with the anti-depressant Ludiomil.

Plaintiff gave her husband Tranxene two times that day as per the prescription and he rested in bed for the remainder of February 9, 1982. Although decedent did not awaken during the night, plaintiff rose at 5:00 a.m. only to find that he had inexplicably left the house and had taken the car without leaving a note as to his whereabouts. When decedent returned home at 7:00 a.m. and plaintiff angrily expressed her concern over his sudden disappearance, he calmly responded that he was just riding around and had stopped for breakfast in order to think things over. Plaintiff called Dr. Weiser and expressed great concern over her husband's erratic behavior and implored him to see decedent that day. However, once again Dr. Weiser stated that no appointments were available for February 10 and that decedent would be all right until he saw him the next day at his scheduled appointment. Plaintiff accepted these assurances as she had in the past.

That afternoon, plaintiff accompanied her husband to the office of Dr. Brand for a neurological examination. During the course of this examination, decedent did not impress the doctor as being suicidal, leading him to conclude in his records, "Depression is under control." Dr. Brand's diagnosis revealed that decedent's affliction was in remission and he advised decedent that he would be able to return to work. Although decedent agreed that this was good news, he continued to express severe doubts about his physical condition on the ride home.

After dinner that evening, decedent advised plaintiff that he was going out to a nearby department store. He never returned. At approximately 4:00 p.m. the following day, February 11, 1982, Sergeant Dennis Barry of the Ridgefield Park Police Department located decedent's body lying along the riverbank of Over Peck Creek, a tidal branch of the Hackensack River in Ridgefield Park, New Jersey. A bottle of Johnny Walker whiskey partially filled with river water was lying nearby. A subsequent toxicological analysis of the body revealed an alcohol level of .252% found in the brain tissue and .23% in the blood. Dr. Marlene Lengner, the Bergen County Medical Examiner, performed an autopsy of the body on February 12, 1982. Due to the large amount of water found in decedent's stomach, Dr. Lengner concluded that the decedent had drowned as indicated in the death certificate. Under the section captioned "Cause of Death" on the certificate, Dr. Lengner checked off the box...

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