OK here is update on Gloria case.I wrote to Glorias lawyer that Glorias boyfriend Jeff claims Rich says Gloria has little chance of winning the case, I told him the first lawyer I found knew all about the obstacles but was still optimistic. Rich naively took it because he thought it would be an easier case.Gloria did not want to go with first lawyer because her brother found Rich and she hoped to get her brother to talk with her. She didnt Under Richard Marcolis letter is my responsxe. I argue that Gloria has a SDTRONHG CASE.ADvice is welcome From: Rich Marcolus To: seth17279 ; katherinehine Sent: Sun, Dec 21, 2014 9:41 am Subject: RE: This is not fair to Gloria, to patients--DEVILs Advocacy based on Jeffs report . Our job is to try and prepare a cause of action on behalf of Gloria considering the limits of the law. Our job is not to please Jeff. If u want to help take out a law book and see if u can find some avenues for us to pursue. Start by reading Title 59. 59:6-7 says the following Neither a public entity nor a public employee is liable for (b) an injury caused by any person who has been confined for mental illness or drug dependence upon any other person so confined. Read the cases that interpret that immunity provision. From what I read there is no cause of action for what happened to Gloria directly against the State. That leaves the employees who neglected Gloria and the woman who attacked her. Those causes of action must be brought under the Federal Law since the NJ State law has immunized the State and its employees for negligence. The Federal Law under section 11 precludes a Federal Civil Rights action against a State. That leaves the employee as the only loophole. The employee is immune from any cause of action alleging negligence. We have to prove reckless disregard which is a heightened standard. Proving someone forgot to do something is not enough. We r prepared to move forward with the case to see if we can establish facts sufficient to prove this type of conduct. It is a very difficult standard. We asked the lawyer who was with us on Wed to help us since he is the only lawyer we know that has successfully obtained a settlement in a similar situation. He represented a public defender who while visiting his client in Ancora psychiatric hospital was attacked. The State tried to have the case dismissed but he was able to prove that the employees showed a reckless disregard for his clients safety. He was able to settle the case. We asked for his help since he has been through a similar case. He has done the discovery and knows what facts r needed to secure a settlement. This is where we r at this point in the case. We have not given up nor r we delusional that this case is going to settle for the compensation that Gloria deserves without a SIGNIFICANT investment in time and money to prepare this case. We r prepared to both at this time. That does not mean that things may not change for the better or worse as we proceed. Rich Marcolus, Esq. Levinson Axelrod, PA 274 Church Street Belford, NJ 07718 (732)687-4385 -------------------------------------------------------------------------------From: seth17279@aol Date: Sun, 21 Dec 2014 16:56:55 -0500 To: Rich Marcolus; katherinehine@yahoo Subject: A legal response by a layperson, Gloria has a potentially strong case OK Rich, Well I will make sure that this(below) gets seen by at least a couple of the leading lawyers in the mental patients rights movement. I have been telling you for at least 3 weeks (ever since you mentioned the meeting which I attempted to attend) that Dennis Feld Esq 516 746-4373 would be willing to talk to you. Many of these lawyers have devoted their life to this cause, and would consider a victory for Gloria, a victory for the movement itself--even for humanity. And while Dennis does not know NJ law he has been practicing for 40 yrs and has sued the state. Obviously it goes even beyond mental patients--this law makes it possible--likely-- to confine people involuntarily on the fiat of a psychiatrist and then make no effort to protect them against harm. It would seem to me this is unconstitutional, a violation of the most elementary human rights. I am not a lawyer so I wont enumerate the constitutional violations, but please tell me if my reasoning is unsound. And if it is cogent would it not be wise to challenge the law itself? Is there ANY REASON you could not challenge the law? But even if we stick to the loophole, the Department of Human Services in NJ has itself charged that the employee is herself guilty of reckless disregard, as I understand the term> To quote NJ Ledger (my emphasis),The hospital worker is facing Internal charges that include “conduct unbecoming a public employee….neglect of duty, loafing, idleness or willful failure to devote attention to tasks which could result in danger to persons or property” and “making false statements,” according to{Ellen} Lovejoy. So DHS is already charging their employee with reckless disregard. Lovejoy is spokesperson for DHS. nj/politics/index.ssf/2014/10/nj_psychiatric_hospital_employee_suspended_following_patient-on-patient_attack_state_says.html . You say proving someone forgot to do something is not enough. Not necessarily. Its all interpretation.. For example, DHS implies it is enough in some contexts. IT is implied that if the person is not attending to her job that would be a willful failure and certainly reckless disregard considering it could result in danger to persons. such as blindness or death. One of the NJ journalists I became friends with, James McEvoy, has written articles about how high the rate of patient on patient violence is at Trenton Psychiatric. It is MUCH HIGHER than at any of the other 3-4 state hospitals. There is a pattern of reckless disregard at Trenton Psychiatric-- for which several employees must be responsible..( If Trenton get more dangerous patients then they have to take corrective measures.) I dont mean not doing hourly check I mean putting a large patient with a history of violence in the room unsupervised with small passive patients like Gloria. Someone failed to check. And if violent patients are routinely just thrown in randomly with vulnerable patients, whom do you blame?. Ultimately someone must be held accountable because a crime of omission IS reckless disregard for human life.Patients lives matter, to paraphrase again. The term reckless or willful disregard seems to provide a lot of latitude. If the employee was so busy talking to her boyfriend or playing computer games it seems DHS considers that a willful failure! Furthermore I am convinced that you will find that the assailant, Florence, has assaulted persons before. Someone does not suddenly turn into a vicious sadist at the age of 70. (She did not have Alzheimers, according to one of our journalists.) THis means that whoever put Florence in Glorias room was also guilty, could be a defendant..Or whoever failed tpo design a procedure to protect patients is also liable. I know that willful is subject to interpretation but considering the high rate of violence at Trenton Psychiatric, any mistake could be willful or reckless disregard in the sense DHS used it--willful inattention to tasks can and does lead to injury at Trenton. So you would have another party to sue. Although Id like to see the state law challenged. It reflects contempt for mental patients. One could classify it as a hate crime. I dont understand The Federal Law under section 11 precludes a Federal Civil Rights action against a State. WEre there not Civil Rights actions against states during the Civil Rights era. What about the Voting Rights Act (recently diluted but not vitiated by SC.) Didnt the government sue the states? Again it is important that Gloria become known in the(black) community and that she generate sympathy. I think this could easily happen. In my experience black people often identify with white poor persons, like a mental patient. Of course to the press we must depict Gloria as a victim of the hospital (which she is) and not of a black patient, or a black employee. There was no overt racial element involved in the attack. So I think this looks like a strong case that could be won.IT will be stronger once you find--as I know you will--that Florence has a history of attack. Mental patients usually dont get prosecuted.(SO they become repeat offenders.) Again in addition to your skills as an attorney, it is my opinion (perhaps influenced by my own activism) that favorable publicity could make a decisive difference. Who wants to be the ogre that wont stand up for a poor blind mental patient suffering from PTSD rejected by her family--one who is capable of showing some charm and intelligence?. Seth Farber, Ph.D. r
Posted on: Mon, 22 Dec 2014 10:53:09 +0000
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