APPROVED FOR PUBLICATION November 13, 2008 APPELLATE DIVISION
ROBERT BRANSFIELD, M.D., Defendant-Appellant. _______________________________________
Argued October 15, 2008 – Decided November 13, 2008 Before Judges Parker, Yannotti and LeWinn.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-4452-03. John M. Walsh argued the cause for appellant
(Amdur, Maggs & Shor, P.C., attorneys;
Richard A. Amdur, of counsel and on the brief).
Anthony A. Lenza, Jr., argued the cause for respondent (Amabile & Erman, P.C., attorneys; Mr. Lenza, on the brief).
The opinion of the court was delivered by
Plaintiff Jeffrey Shectman brought this action against
defendant Robert Bransfield, M.D., alleging that defendant
deviated from accepted standards of psychiatric care by failing
to monitor and supervise his response to certain medications and
his deteriorating mental condition, and that defendant's
deviations resulted in plaintiff's attempt to commit suicide.
The matter was tried to a jury, which returned a verdict for
plaintiff awarding $250,000 in damages. Judgment was entered in
accordance with the jury's verdict and defendant appeals. For
When this matter was tried, plaintiff was forty-four years
old. He has had a long history of mental illness. He was first
treated by a psychiatrist when he was fifteen years of age. He
was diagnosed with various mental disorders, including
schizoaffective and bipolar disorders; obsessive-compulsive
disorder; anxiety and mania. At age sixteen, plaintiff attempted
to overdose on medication. Plaintiff testified that this was a
Plaintiff began treatment with defendant in 1991, when he
was twenty-seven years old. Initially, plaintiff was treated by
defendant and other doctors; however, after about a year or two,
defendant became plaintiff's only psychiatrist. Between 1991
and 1999, plaintiff saw defendant twice a year. Defendant
prescribed drugs, adjusted the medications, and repeatedly
Plaintiff testified that in the summer of 2000, he "was
going through some rough times." He said that he was "sort of a
little paranoid." He could not sleep well and he was not eating
properly. Plaintiff stated that "things just started to churn
in a bad way." Plaintiff said that defendant prescribed Paxil
and, at the time he was taking that medication, he was very
agitated. According to plaintiff, defendant did not instruct
him to return to the office on any particular date. Defendant
told him to "call up when you need another prescription."
At some point, defendant increased the dosage of Paxil but
plaintiff said that his condition worsened. Plaintiff testified
that, at the time, he was disheveled. He had not showered,
shaved, or changed his clothes in a long time. Plaintiff
thought he was Jesus or Gandhi. He believed that he "could
change people." Plaintiff asserted that there were times when
Plaintiff recalled going to see defendant on October 9,
2000. Defendant instructed him to stop taking Paxil and he gave
plaintiff samples of another medication called Luvox. Plaintiff
said that it took a month for him to stop taking the Paxil; it
was his understanding that he was supposed "[t]o stop taking it
slowly." Plaintiff stated that defendant did not instruct him
Plaintiff testified that, in the days and weeks after the
October 9, 2000 visit to defendant, he "was getting worse and
worse." He said that he "was really out of sorts[.]" He lost
ten pounds in October 2000 and was down to about 145 or 150
pounds. He did not start taking the Luvox. Plaintiff said that
he did not "know what was going on at all."
Plaintiff further testified that on November 4, 2000, he
had a thought that he was going to hit his sister. He felt
hopeless. He took "a bunch of pills" and lost consciousness
several times. The following morning, plaintiff swallowed
detergent and washed it down with water. He also stabbed
himself twenty-seven times, inflicting injuries to his body,
wrist and throat. Plaintiff was taken by ambulance to a
hospital, where he remained for several weeks.
Plaintiff's mother, Marilyn Bernice Shectman, testified.
Mrs. Shectman said that in June 2000, plaintiff was not doing
well. She brought plaintiff to see defendant, who prescribed
Paxil. Defendant did not schedule a follow-up visit. In
September 2000, plaintiff was seen by defendant for an
evaluation in order to "continue his [social security]
disability[.]" Mrs. Shectman said that plaintiff was doing
terribly at the time. He was disheveled and he was not sleeping
On October 9, 2000, Mrs. Shectman called defendant's office
for an emergency appointment because she was worried. She said
that plaintiff "was getting sicker and sicker and not
sleeping[.]" She said that plaintiff was "walking and pacing
and talking about religious thoughts and [the] paranoia was
terrible." She stated that "it was very scary to have him
home[.]" Defendant saw plaintiff that day.
recalled plaintiff pacing in the hallway of
defendant's office. She said that plaintiff "was really out of
it." Defendant told plaintiff to "decrease and discontinue" the
Paxil. Defendant prescribed Luvox and gave plaintiff samples of
the drug. Defendant did not provide any instruction on when
Mrs. Shectman said that, in the weeks that followed the
October 9th visit to defendant's office, plaintiff's condition
deteriorated. Plaintiff lost weight. He paced and walked. He
could not watch television. He did not listen to music or leave
the house. She said that plaintiff was "very, very, very
On October 27, 2000, Mrs. Shectman called defendant's
office. She realized that plaintiff had never started taking
the Luvox and he was not on any anti-psychotic medication.
Plaintiff did not, however, see the doctor at that time. Mrs.
Shectman called defendant's office on November 1st and asked
defendant to authorize the refilling of plaintiff's prescription
Mrs. Shectman said that on the evening of November 5, 2000,
she was at home with her husband. They were exhausted after
having worked a full day. Plaintiff had been home that day with
his grandmother, who was then ninety-two years old. Mrs.
Shectman said that plaintiff came down to the living room and
said hello, but he was "very, very mysteriously quiet[.]"
At around 11 p.m., Mr. and Mrs. Shectman were about to go
to sleep when Mrs. Shectman heard a "terrible moaning and
groaning" coming from plaintiff's bathroom. She called out to
plaintiff, but he told her not to come in. The door to
plaintiff's bathroom was locked but Mr. Shectman opened the door
using a tool. They found plaintiff in a pool of blood.
Portions of defendant's deposition testimony were read into
the record. Defendant stated that he treated plaintiff from
1991 to 2000. He said that plaintiff had been suffering from
obsessive compulsive disorder for many years. In 2000,
defendant prescribed various medications to address that
condition. Plaintiff had been on a drug called Anafranil but
had become "overstimulated" by that medication and defendant
In October 2000, plaintiff became increasingly obsessive.
Defendant saw plaintiff on October 9, 2000. He explained that
plaintiff had not been able to get the dose of Paxil high enough
to achieve a strong "anti-obsessive effect[.]" Plaintiff was
instructed to reduce the dose of Paxil to ten milligrams for a
week, while beginning the Luvox. Plaintiff was then to stop
taking Paxil, and remain on Luvox. Defendant gave plaintiff
samples of Luvox. Defendant said that he would have provided
plaintiff with his customary instruction to return to see him if
Defendant did not see plaintiff after the October 9, 2000
visit. However, his office notes reflected that Mrs. Shectman
called on October 27, 2000 and reported that plaintiff had not
been taking the Luvox. Defendant stated that plaintiff should
have been taking the medication and he would have said so in the
Defendant testified at trial that when he began to see
plaintiff in 1991, plaintiff was complaining of depression.
Plaintiff had a history of chronic mental illness. Plaintiff
had responded to treatment, left defendant's care, and was
treated elsewhere. Plaintiff returned to see defendant in
September 1994 after a manic episode at a restaurant. Plaintiff
saw defendant for ongoing follow-up visits from June 1996 to
Defendant said that, in the time he treated plaintiff,
"[t]here was no evidence, sign, symptom, indication, nothing
that would indicate dangerousness, certainly nothing that would
[be] imminent [or high] risk[.]" Defendant asserted that in his
treatment of plaintiff before and after June 2000, he followed
the same routine that he follows with other patients. Defendant
would generally advise his patients to call his office if there
was an emergency or problem, and if he could not be reached, to
go the emergency room of the nearest hospital.
Defendant was asked whether there is a standard of care for
monitoring psychiatric patients. He replied, "It's a judgment
call. There is no standard." Defendant testified that there is
no standard of care in terms of the frequency of visits or the
type of visit. Defendant stated that he had recommended that
plaintiff see him more frequently but he could not force an
individual to have treatment unless the individual was civilly
committed. He said, however, that plaintiff "never met [the]
commitment criteria." Defendant prescribed Luvox and, in his
opinion, it would have been better for plaintiff's mental state
Plaintiff and defendant presented testimony from experts
in the field of psychiatry. Plaintiff's expert was Dr. David J.
Gallina, who opined that defendant deviated from the standard of
care in 2000 because he failed to "appropriately monitor,
supervise and assess the patient's clinical condition over a
period of time when that condition was clearly deteriorating."
Dr. Gallina stated that in the relevant period, there had been
changes in plaintiff's medications that were causing side
effects. In addition, the medications were not addressing the
symptoms that plaintiff was experiencing.
Dr. Gallina said that, after the October 9, 2000 visit to
defendant's office, plaintiff's condition deteriorated.
Plaintiff's medications had changed and he was experiencing a
"discontinuation syndrome." Plaintiff's "overall clinical state
was unstable and was deteriorating." The doctor stated:
for very close monitoring and supervision of
the patient, monitoring of the medication changes that were being made and supervision of the patient's clinical state which had been deteriorating for some period of time. It was warranted at that point for the
patient to be seen frequently, certainly at least on a weekly basis and perhaps more often, which was not done. The October visit was the last time that the doctor
actually saw the patient face-to-face prior to the patient's [attempted] suicide.
supervision and monitoring in view of the
medication changes that were being made, in view of the side effects that the patient was experiencing from medications, and in
view of the patient's deteriorating clinical condition, it certainly was foreseeable that something bad was going to happen with this
patient over a period of time if that trend
was not clinically interrupted in some way. And without adequate supervision, without adequate monitoring of the medication over the next month, the patient's clinical condition continued to deteriorate until
finally we had the rather horrendous suicide attempt that subsequently occurred.
presented testimony from Dr. Andrew Slaby, who
opined that defendant had "totally complied" with the applicable
standard of care in his treatment of plaintiff. Dr. Slaby was
asked whether a psychiatrist is "doing the right thing" if he
instructs a patient to call if there is a problem, and advises
the patient to go to the nearest emergency room if the doctor
cannot be reached. Dr. Slaby replied, "Yes, he is." He added:
[t]hat is all you can really do. You cannot force a person to call . . . nor can you force family members or other people to call
. . . , but I don't think the Shectmans themselves had seen from what I read that deterioration or they would have intervened since they were very conscientious.
The jury returned a verdict finding that defendant deviated
from the accepted standard of psychiatric care in the period
from June 2000 to November 2000. The jury also found that the
deviation was a proximate cause of plaintiff's suicide attempt
and resulting damages. In addition, the jury determined that
plaintiff failed to prove that he was not capable of following
defendant's instructions in the relevant period. The jury
further found that defendant had not proven that plaintiff was
negligent in failing to follow defendant's instructions. The
jury awarded plaintiff $250,000. This appeal followed.
Defendant first argues that we should order the
reinstatement of the trial court's October 10, 2003 order
dismissing plaintiff's complaint for failure to comply with the
Plaintiff filed his complaint on June 18, 2003, and
thereafter, defendant moved for dismissal of the complaint.
Defendant argued that plaintiff's cause of action accrued on
November 5, 2000, the date when plaintiff attempted suicide, and
the complaint was untimely because it had not been filed within
two years of that date, as required by N.J.S.A. 2A:14-2a.
Plaintiff opposed the motion. In an affidavit dated
September 17, 2003, plaintiff stated that when he attempted to
commit suicide, he had no reason to believe that his action had
anything to do with defendant's treatment. Plaintiff asserted,
however, that in November 2002, his parents read a magazine
article which indicated that there was a connection "between the
use of Paxil and an increased risk of suicidal or violent
Plaintiff said that, after being informed of the article,
he contacted an attorney to determine whether his attempted
suicide was due to the medication. He stated:
In or about May 2003, my attorneys informed me that the pharmacological expert they
retained could not state with any certainty that Paxil caused my suicide attempt but
that a possible malpractice claim existed against [defendant]. This was the first time that I was advised by anyone, including any physicians, that something [defendant] did or did not do contributed to my suicide attempt.
Plaintiff added that before May 2003, he did not know that
defendant's treatment had caused or contributed to his suicide
attempt. He asserted, "If it was not for the Paxil article
which led me to an attorney, I would have never known I had a
malpractice case against [defendant]."
The trial court held that plaintiff's complaint was
untimely. The court ruled that the statute of limitations began
to run on the date of the attempted suicide because that was the
date when plaintiff knew he was injured. We reversed. Shectman
v. Bransfield, No. A-1311-03 (App. Div. June 30, 2004).
We held that "a reasonable person with as extensive a
psychiatric history as plaintiff . . . would not necessarily"
consider the suicide attempt to be an injury caused by an
external force. Ibid. (slip. op. at 11). We added that even if
the suicide attempt was considered to be an actionable injury,
there was no evidence that plaintiff knew or should have known
that the injury was related to defendant's medical treatment.
Objectively, plaintiff, given his prior extensive psychiatric history, reasonably could not have suspected his treating psychiatrist to have been at fault until he became aware of the article his parents brought to his attention relating Paxil to suicide attempts.
Defendant argues that our decision to reverse the trial
court's order and reinstate plaintiff's complaint was based on a
misrepresentation because at trial, plaintiff never asserted a
claim against defendant based on defendant's prescription of
Paxil. We disagree. Our application of the discovery rule in
the earlier appeal was not based on the assumption that
plaintiff would necessarily assert a claim that defendant
deviated from the standard of care by prescribing Paxil.
affidavit, plaintiff stated that he had been
advised by his attorneys that there was insufficient support for
a claim against defendant based on the prescription of Paxil.
Plaintiff made clear, however, that he first discovered that his
suicide attempt might have some relationship to defendant's
treatment when he learned of the article about Paxil.
Thus, our decision to reverse the trial court's order was
not based on a misrepresentation by plaintiff. The fact that
plaintiff did not pursue a claim based on the alleged wrongful
prescription of Paxil does not alter our conclusion that the
statute of limitations began to run when plaintiff first became
aware that he may have been harmed by defendant's treatment, not
reinstate the trial court's October 10, 2003 order.
We turn to defendant's contention that the trial judge
erred by refusing to charge the jury on medical judgment.
Defendant contends that he and the medical experts who testified
at trial agreed that there is no standard of care requiring that
a psychiatrist see and evaluate a patient "at any certain
interval" and that the decision is left to the physician's
A physician is required to "act with that degree of care,
knowledge, and skill ordinarily possessed and exercised in
similar situations by the average member of the profession
practicing in the field." Velazquez v. Portadin, 163 N.J. 677,
686 (2000) (citing Walck v. Johns-Manville Prods. Corp., 56 N.J.
533, 560 (1970)). However, "'good treatment will not necessarily
prevent a poor result.'" Ibid. (quoting Schueler v. Strelinger,
When a physician "'selects one of two courses . . . either
one of which has substantial support as proper practice by the
medical profession, a claim of malpractice cannot be predicated
solely on the course pursued.'" Ibid. (quoting Schueler, supra,
43 N.J. at 346). This is so because, when there are two
different schools of medical opinion, "'the plain inference is
that the matter must be left to the good faith judgment of the
experienced [physician].'" Ibid. (quoting Schueler, supra, 43
N.J. at 346). Therefore, the judgment charge is generally
limited to "medical malpractice actions concerning misdiagnosis
or the selection of one of two or more generally accepted
courses of treatment." Ibid. (citing Aiello v. Muhlenberg Reg'l
Med. Ctr., 159 N.J. 618, 628-29 (1999)).
medical judgment. The judge denied the application. The judge
stated that he was not persuaded that the evidence established
that there were two different "schools of medical treatment."
The judge stated that the issue was not judgment in general but
whether defendant deviated from the standard of care. We
The record shows that the parties essentially agreed that
defendant had a duty to monitor and supervise plaintiff's
condition in the period from June 2000 to November 2000. The
parties disagreed, however, as to whether defendant was
negligent in doing so. Plaintiff's expert, Dr. Gallina,
initially opined that, in the period after plaintiff's October
9th visit to defendant's office, the standard of care required
"very close monitoring and supervision," and that defendant
should have seen plaintiff on a weekly basis, if not more
Dr. Gallina conceded, however, that "the frequency of
visits or when it's necessary for the patient to be seen by the
doctor is a medical decision, and that's a decision that the
That's part of the treatment, much like a decision as to which medication to put the patient on. The decision [as] to when the patient has to come back to see the doctor
and what kind of evaluation has to be done for the patient is a medical decision that the doctor makes as part of the treatment. So, the doctor generally will see the patient, and that's true in almost . . . any
specialty, and then at some point [the doctor] tells the patient, I'm going to make an appointment for you or you should make an appointment tomorrow or next week, whatever
the doctor feels is necessary . . . coming from the evaluation that he makes of the
Dr. Gallina further testified on cross-examination as
Q. Now, I'd like you to listen to this and see if you agree or disagree with this.
practice of psychiatry that tells a practicing psychiatrist how often he should see any patient?"
"The standard is not a specific number
or a specific line . . . [that] determines
exactly the frequency of visits that a patient – all patients should be seen. It depends upon a number of factors, including the history and clinical condition of the patient and the type of treatment that's being rendered. It determines or leads to
the doctor's decision to follow the patient at certain intervals."
A. Well, I didn't know that they were, but they sound right.
Q. I'm reading those [words] right from your deposition in this case. And you say there, in answer to the question of whether there's a standard of practice in psychiatry
that tells a practicing psychiatrist how
often he should see a patient. And you said, it's not a specific number or a specific line of number of visits that
determines how a patient should be seen. It depends upon a number of facts, including the history, clinical condition of the patient and the type of treatment that's being rendered that determines or leads to
the doctor's decision to follow a patient at certain intervals, doesn't it?
As stated previously, defendant testified that the manner
in which a psychiatrist monitors and supervises his patient is a
matter of medical judgment. Defendant stated that there is no
standard of care for a psychiatrist to monitor a patient. He
said that it was "a judgment call."
In addition, defendant's expert, Dr. Slaby, testified that
"[t]here's no standard of care that suggests . . . that a
patient has to come, it's the judgment of [the] physician who's
attending" the patient. Dr. Slaby explained that there is no
written standard. He said "[i]t's really that [the physician]
knows the patient, it's his own judgment regarding what is
Thus, contrary to the trial judge's determination, there
was sufficient evidence in this case of two "schools of medical
treatment." As we have indicated, the medical experts testified
that a psychiatrist's decision to choose one of these two
courses of treatment was dependent upon a variety of factors and
the choice was a matter of medical judgment. We are therefore
convinced that the judge erred by failing to instruct the jury
We further conclude that the absence of the charge is
reversible error. We note that, during its deliberations, the
jury sent the judge a note indicating that it was "having
trouble establishing accepted standards." The judge then re-
read to the jury the portion of the instructions pertaining to
standard of care, and the jury continued its deliberations. The
jury returned a verdict finding that defendant deviated from the
applicable standard of care in his treatment of plaintiff.
Presumably, the jury accepted Dr. Gallina's testimony on that
issue. We are convinced, however, that had the jury been
charged on medical judgment, it might have reached a different
conclusion. Therefore, we conclude that a new trial is
In view of our decision, there is no need to address
defendant's argument that the jury's verdict was inconsistent
because it found that plaintiff understood defendant's
instruction to take Luvox but was not negligent in failing to do
Reversed and remanded for a new trial in conformance with
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