HealthLawProf Blog

Editor: Katharine Van Tassel
Concordia University School of Law

Friday, August 26, 2005

Duty to Aid

As all of us know from our torts classes, an individual does not have a duty to aid another in most instances.  Recently, however, in Sklarksy v. New Hope Gild Center, 12923/01, a court held that an exception to that rule exists, finding that husband had a duty to provide medical assistance to his wife, whose mental illness left her in a "diminished, incapacitated and helpless state."  According to,

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. . . .

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.


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