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Two recent cases involving spousal liability could create a new category of family malpractice actions, in which family members caring for sick relatives are held to the same standards as medical professionals. In one recent case, a New York judge found that a husband had a legal duty to provide medical assistance to his wife, who suffered from mental illness and committed suicide. Following the judge’s ruling, a jury found that the husband was partly responsible for her death because he did not call 911 or take her to the emergency room as instructed by a doctor. Sklyarsky v. New Hope Guild Center, No. 12923/01 (Kings Co., N.Y., Sup. Ct.). In another case in Ohio, a former University of Akron professor accused of withholding his sick wife’s medication and not taking her to the doctor was put on probation and fined $1,000 in July after pleading guilty to neglecting his wife. Ohio v. Schneider, No. 2004 CR 00107 (Portage Cty. Ct. of Common Pleas). Attorneys say such cases could set a dangerous precedent in the area of marital-spousal liability, where caregivers could be held legally responsible for failing to live up to professional standards or making wrong choices in tough situations. “It does put the fear of God into caregivers that they could be held responsible,” said attorney Alice Herb, who teaches bioethics at the State University of New York Health Science Center at Brooklyn, and serves as an ethics consultant to hospitals and caregivers. Herb was particularly disturbed by the New York case, arguing that it could be misused in future litigation. “There’s no question that some lawyer is going to pick up and play with it and maybe even win,” she said. Attorney Eliot Wolf, who defended the husband in the New York case, called the court ruling “mind-boggling.” “Why should a spouse be held responsible? It’s like saying, ‘If my wife is smoking cigarettes, and she dies, I’m liable because I did not stop her.’ I just think it opens up a whole area of litigation which is not recognized,” said Wolf of Wolf & Fuhrman in Long Island, N.Y. The New York case revolves around the suicide of a mentally ill woman who, on June 5, 2000, jumped from her fourth-story apartment after her husband had sought help from a mental health facility. According to court documents, on the eve of his wife’s death, Alexander Sklyarsky called the New Hope Guild Center to seek help for his troubled wife. A psychiatrist told him to call 911 or take her to the emergency room. Sklyarsky decided he would take his wife to the hospital the following morning, but his wife committed suicide in the middle of the night. Sklyarsky initially sued the mental health center and three of its doctors for alleged psychiatric malpractice. But the defense counterclaimed, arguing Sklyarsky was at fault for not calling 911 or going to the emergency room as instructed. “[The plaintiffs] said that we should have provided emergency medical assistance, so I turned that around on them,” said attorney Alan Kelhoffer of New York’s Lambert & Weiss, who represented the New Hope Guild Center and the psychiatrist. “We told him, he should have gone to emergency.” On July 20, Justice Gerard H. Rosenberg granted the defense’s motion to add the counterclaim, finding that “Mr. Sklyarsky had a common-law duty to provide medical aid to his wife.” On Aug. 16, a jury ruled in favor of the defense and held that Sklyarsky was 30% responsible for his wife’s death. Under a high-low agreement, however, Sklyarsky still received a $325,000 settlement. Attorney Timothy Ludick of the Law Offices of Tim Ludick in Ravenna, Ohio, the defense counsel in the spousal-liability suit in Ohio, argued that some caregivers become so overwhelmed by their duties and confused in decision-making. That’s what he argued in the case of the retired Ohio professor who was fined and put on probation for neglecting his wife, who suffered from mental illness and Alzheimer’s disease. In that case, 76-year-old Ronald Schneider was ordered to serve six months’ probation and fined $1,000 for allegedly failing to take his wife to the doctor and give her medications. Ludick denied those allegations, saying his client was an old man overwhelmed by his duties.

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