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Berberian v. Lynn11/20/2002
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued October 21, 2002
Plaintiffs, Mary Berberian and her husband Emanuel Berberian, filed a complaint against defendants Diana Lynn, Edmund Gernannt, and a then-unknown physician. Amended complaints added the Estate of Gernannt as a defendant after he died, and substituted Dr. M.H. Ramay, M.D., as a defendant for the unknown physician. The complaint alleged that Lynn was negligent in allowing and causing the removal of Gernannt, an adjudicated incompetent, from the psychiatric ward of Bergen Pines County Hospital (Bergen Pines) to the Bergen Pines long term care unit without restraints. Plaintiffs also alleged improper supervision and control and that Lynn breached a contract or fiduciary duty, or both, as Gernannt's guardian. Summary judgment was granted in Lynn's favor, dismissing all claims asserted against her. Summary judgment was later granted to Dr. Ramay, dismissing the complaint against him apparently due to the bar of the workers' compensation statute. The dismissal of Dr. Ramay is not the subject of this appeal.
On the last day of the jury trial against Gernannt, plaintiffs' attorney argued that a $200,000 settlement had been reached, despite his request in a counterproposal for $225,000, and plaintiff sought enforcement of the settlement. Defendant's attorney placed a high low proposal on the record in the presence of plaintiff and her attorney, but this offer was not accepted. The trial judge concluded there was no settlement and charged the jury, which thereafter returned its verdict finding Gernannt was not negligent.
Plaintiffs assert the following claims on these consolidated appeals. In their first appeal (A-4825-00T2) they argue: (1) Lynn was negligent in demanding that Gernannt be removed from the psychiatric unit and placed in the long term care unit of Bergen Pines; and (2) the judge erred in instructing the jury that Gernannt could not be found negligent if he lacked the capacity to appreciate the consequence of his actions. In their second appeal (A-414-01T2) plaintiffs argue that the judge erred in refusing to enforce a claimed settlement between the parties despite a strong public policy favoring settlements and the fact that an oral settlement is enforceable.
Lynn was awarded guardianship of her father, Gernannt, now deceased, on September 22, 1997, when it became apparent that he was no longer mentally competent or able to care for himself and was a danger to himself and others. On October 3, 1997, Gernannt was admitted to Bergen Pines with a diagnosis of Senile Dementia, Alzheimer Type. On October 13, 1997, he was transferred from the Long Term Care Unit (LTCU) to the Psychiatric Unit because he"became increasingly agitated and assaultive towards the staff."
Dr. Ramay, who last treated Gernannt on November 1, 1997, did not expect that there would be any recovery of cognition by the patient. Prior to the November 11, 1997 incident, Dr. Hossain, the Chief of Geriatric Psychiatry at Bergen Pines, treated Gernannt. Both doctors testified at trial that Gernannt suffered from advanced Alzheimer's disease with severe dementia.
In addition, Dr. Hossain stated that Gernannt's condition was unlikely to improve and was, in fact, progressive.
On November 5, 1997, Gernannt was returned to the Alzheimer population in the LTCU after receiving medication and treatment. Plaintiff contends that when Lynn was notified that her father was placed in the Psychiatric Unit, she requested his return to the LTCU. A report by Dr. Ramay noted that when Gernannt was treated in the Psychiatric Unit," he patient's family was contacted. They wa
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