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Combative Alzheimer’s Patient Not Liable for Injuries to Nurse

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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.

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Robert B. Fleming


Robert Fleming is a Fellow of both the American College of Trust and Estate Counsel and the National Academy of Elder Law Attorneys. He has been certified as a Specialist in Estate and Trust Law by the State Bar of Arizona‘s Board of Legal Specialization, and he is also a Certified Elder Law Attorney by the National Elder Law Foundation. Robert has a long history of involvement in local, state and national organizations. He is most proud of his instrumental involvement in the Special Needs Alliance, the premier national organization for lawyers dealing with special needs trusts and planning.

Robert has two adult children, two young grandchildren and a wife of over fifty years. He is devoted to all of them. He is also very fond of Rosalind Franklin (his office companion corgi), and his homebound cat Muninn. He just likes people, their pets and their stories.

Elizabeth N.R. Friman


Elizabeth Noble Rollings Friman is a principal and licensed fiduciary at Fleming & Curti, PLC. Elizabeth enjoys estate planning and helping families navigate trust and probate administrations. She is passionate about the fiduciary work that she performs as a trustee, personal representative, guardian, and conservator. Elizabeth works with CPAs, financial professionals, case managers, and medical providers to tailor solutions to complex family challenges. Elizabeth is often called upon to serve as a neutral party so that families can avoid protracted legal conflict. Elizabeth relies on the expertise of her team at Fleming & Curti, and as the Firm approaches its third decade, she is proud of the culture of care and consideration that the Firm embodies. Finding workable solutions to sensitive and complex family challenges is something that Elizabeth and the Fleming & Curti team do well.

Amy F. Matheson


Amy Farrell Matheson has worked as an attorney at Fleming & Curti since 2006. A member of the Southern Arizona Estate Planning Council, she is primarily responsible for estate planning and probate matters.

Amy graduated from Wellesley College with a double major in political science and English. She is an honors graduate of Suffolk University Law School and has been admitted to practice in Arizona, Massachusetts, New York, and the District of Columbia.

Prior to joining Fleming & Curti, Amy worked for American Public Television in Boston, and with the international trade group at White & Case, LLP, in Washington, D.C.

Amy’s husband, Tom, is an astronomer at NOIRLab and the Head of Time Domain Services, whose main project is ANTARES. Sadly, this does not involve actual time travel. Amy’s twin daughters are high school students; Finn, her Irish Red and White Setter, remains a puppy at heart.

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Matthew M. Mansour


Matthew is a law clerk who recently earned his law degree from the University of Arizona James E. Rogers College of Law. His undergraduate degree is in psychology from the University of California, Santa Barbara. Matthew has had a passion for advocacy in the Tucson community since his time as a law student representative in the Workers’ Rights Clinic. He also has worked in both the Pima County Attorney’s Office and the Pima County Public Defender’s Office. He enjoys playing basketball, caring for his cat, and listening to audiobooks narrated by the authors.