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In a case of apparent first impression, a Brooklyn judge has held that a man had a duty to provide medical assistance to his troubled wife, whose mental illness left her in a “diminished, incapacitated, helpless state” in the days preceding her apparently suicidal jump from the couple’s fourth-story apartment. The decision, Skylarsky v. New Hope Guild Center, 12923/01, enunciates a rare exception to the general rule that individuals are not legally compelled to take action to help others. The ruling potentially complicates care-giving decisions in New York by opening doors to inter-spousal lawsuits. The decision “broadens marital-spousal liability for inter-spousal torts,” said Alan C. Kelhoffer of Lambert & Weiss, who represented the defense. “It creates risks now for spouses who are involved as caregivers.” Plaintiff Alexander Skylarsky, a public-library janitor, initiated a psychiatric-malpractice claim against New Hope Guild Center for Emotionally Disturbed Children and three of its physicians. He alleged among other things that on the evening preceding Sofia Skylarsky’s death, he called Dr. Marina Galea and told her that his wife was “running around frantically and speaking nonsense,” and that he had found a suicide note. Dr. Galea declined to meet with Ms. Skylarsky because she did not have a scheduled appointment, Mr. Skylarsky testified. The defense counterclaimed, contending that Mr. Skylarsky was negligent for failing to provide medical aid to his wife by refusing either to call emergency medical services or to take her to an emergency room as instructed by the defendant doctors. On the night of June 5, 2000, after three days of rapid deterioration in his wife’s mental state, Mr. Skylarsky decided he would take her to the hospital the following morning, he said. However, Ms. Skylarsky apparently jumped to her death in the middle of the night. At issue in the present motion was whether Mr. Skylarsky neglected a legal duty to come to his wife’s aid. “To charge plaintiff Alexander Skylarsky with negligence, movant must establish that Mr. Skylarsky had a legal duty, that he breached that duty, and that Mr. Skylarsky’s alleged intervening negligence was a direct and proximate cause of Mrs. Skylarsky’s death,” Justice Gerard H. Rosenberg wrote. “While it cannot be gainsaid that Mr. Skylarsky had a moral duty to so act, the question which must be determined is whether there was a legal duty to so act which, if breached, constituted negligence.” Rosenberg found only one relevant New York case, the 1981 Appellate Division, 4th Department, decision People v. Robbins, which held that “unquestionably, there is a common-law marital duty to provide medical attention to one’s spouse.” That court, however, declined to impose criminal liability for failure to aid a “competent adult spouse who has made a rational decision” to forego medical assistance. COMMON-LAW DUTY Comparing the circumstances in the present case with the well-established duty imposed on parents to come to the aid of their own children, Rosenberg relied on two out-of-state cases and dicta from Robbins, to set forth a new rule. The three cases “recognize that a common law duty may exist for a person to summon medical assistance for a spouse where the spouse by reason of being ‘incapacitated or otherwise unable to make a rational decision’ [ Robbins], or in a ‘helpless state and unable to appeal elsewhere for aid’ [ Westrup v. Commonwealth, 123 Ky. 95], or ‘wherein it is apparent that an adult is as helpless as a newborn’ [ State v. Mally, 139 Mont. 599],” according to Justice Rosenberg. The cases establish that “Mr. Skylarsky had a common-law duty to provide medical aid to his wife by calling emergency services to her assistance, and/or by taking her to a hospital as instructed [by] movants,” Rosenberg concluded. He therefore granted on July 20 the defense’s motion to add a counterclaim seeking indemnification from Mr. Skylarsky. Last week, a jury found in favor of the defense and dismissed Mr. Skylarsky’s action. Nonetheless, under the terms of a “high-low” agreement, Mr. Skylarsky received a settlement totaling $325,000. Though the jury did not award any damages, it found Mr. Skylarsky 30 percent liable for his wife’s death. Had there been an award, Mr. Skylarsky would have had to pay himself (as administrator of his wife’s estate). The judge’s decision will not be appealed, as both sides stipulated in the high-low agreement to forego any appeals. “If it would have been appealed, it wouldn’t have been upheld. It would have opened up a whole new area of litigation,” said Mr. Skylarsky’s attorney, Eliot Wolf of Long Island-based Wolf & Fuhrman. Though Kelhoffer, who represented the defense, said he was ambivalent about the ramifications of the decision, he added, “In this case, it was appropriate.”

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