Posts Tagged ‘New Jersey Supreme Court’

Combative Alzheimer’s Patient Not Liable for Injuries to Nurse

APRIL 19, 2004 VOLUME 11, NUMBER 42

Edmund Gernannt suffered from dementia of the Alzheimer’s type. Confusion and agitation sometimes combined in Mr. Gernannt to make him combative. While most Alzheimer’s patients can be easily redirected and ultimately calmed, Mr. Gernannt’s aggressive tendencies got him committed to the county hospital in Bergen Pines, New Jersey. It was there that he assaulted one of the facility’s nurses.

Mary Berberian, the head nurse on the long-term care ward of the geriatric psychiatric hospital, was on duty on November 11, 1997. She had over twenty years of experience working with demented patients, and she knew Mr. Gernannt’s tendency to lash out at staff members. When Mr. Gernannt pushed open the fire escape door and set off an alarm, she rushed to head him off and return him to the unit.

Another nurse was also on the scene, but Mr. Gernannt began hitting her when she tried to escort him back to the unit. Ms. Berberian then extended her hand to try to coax Mr. Gernannt back into his room, but he responded by first pulling her forward, then shoving her back. As a result, the nurse fell and broke her hip.

Ms. Berberian sued Mr. Gernannt for her injuries. She also named Mr. Gernannt’s guardian, alleging that the guardian should not have authorized transfer of Mr. Gernannt to the unit without physical restraints, and the physician in charge of Mr. Gernannt’s care.

The trial court dismissed the lawsuits against the guardian and the physician, but the jury considered whether Mr. Gernannt’s estate (he died before trial) should pay Ms. Berberian’s damages. The court instructed the jury that it could find the estate liable only if it decided that Mr. Gernannt’s behavior fell below the standard that might be expected of a “reasonably prudent person who has Alzheimer’s dementia.”

The jury found that Mr. Gernannt’s estate should not be liable for damages, and Nurse Berberian appealed. The first appellate court agreed that the trial judge had set the correct standard for the jury to apply, and so the nurse appealed again.

The New Jersey Supreme Court agreed that Ms. Berberian should not recover from Mr. Gernannt’s estate, but on a different theory. According to the state’s highest court Mr. Gernannt owed no duty of care to the professionals assigned to care for him. That result was mandated, said the justices, by the very fact that Mr. Gernannt was involuntarily committed to a treatment facility because of his well-known combative tendencies. Nurse Berberian accepted the risk of injury by choosing her profession, not unlike a fireman’s choice to work in a hazardous field. Berberian v. Gernannt, April 6, 2004.

Two Life Insurance Beneficiary Designations Require Litigation

APRIL 28, 2003 VOLUME 10, NUMBER 43

When people consider “estate planning” they usually are thinking about preparing a will. Sometimes the common conception of estate planning includes preparing a trust as well, and often durable powers of attorney are also part of the plan. But two recent cases demonstrate that “estate planning” is really much more—it includes the titling of assets and beneficiary designations as well. The most carefully-considered estate plan may fail if those other issues are not also dealt with at the same time.

Lori Flanigan was divorced and had two children when she married her second husband, Craig Munson. Ms. Flanigan had two life insurance policies through her work totaling $217,600. Her divorce agreement required her to name the children as beneficiaries on her life insurance, but she had not gotten around to completing a beneficiary designation form when she died in 1995.

Her insurance policies provided that they would be paid to a surviving spouse if she had not designated a beneficiary, and so the proceeds were distributed to Mr. Munson. The children’s grandparents (who took custody after Ms. Flanigan died) then filed a lawsuit to impose a constructive trust on the remaining insurance proceeds and Mr. Munson’s home, since he had used some of the proceeds to pay off his mortgage and other debts.

The trial judge denied the grandparents their requested relief, but the New Jersey Supreme Court agreed that the insurance proceeds should go to the children. It ordered the money transferred to the children’s benefit—eight years and thousands of dollars in legal fees after her death. Flanigan v. Munson, April 3, 2003.

Daniel Lambert was not so lucky. He argued that his mother’s life insurance policy should be part of her estate, and that her will specified that he was to receive a portion of that estate. Unfortunately for him, whatever his mother’s intentions might have been she had named her daughter Suella Southard as beneficiary.

Another sibling, brother Steven Powell, was prepared to testify that their mother had always intended that the life insurance policy should be used to pay the costs of handling her estate and then distributed to the children according to her will. He was not allowed to testify, however, because of a long-standing court rule prohibiting testimony about conversations with deceased persons, the so-called “Dead Man’s Statute.” The Indiana Court of Appeals refused to permit imposition of a constructive trust on the life insurance proceeds. Lambert v. Southard, April 1, 2003.

The moral: “estate planning” requires consideration of beneficiary designations and account titles as well as signing of a will, trust and powers of attorney. Even a carefully-drafted estate plan, including a will, a living trust and both financial and health care powers of attorney, can be altered or frustrated by incorrect (or missing) beneficiary designations, joint tenancies, “payable on death,” “transfer on death” or “in trust for” account titles or other, similar arrangements.

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