CECIL FEARON v. CORRECTIONAL MEDICAL SERVICES INC.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4686-07T34686-07T3

CECIL FEARON,

Plaintiff-Appellant,

v.

CORRECTIONAL MEDICAL SERVICES,

INC., PAUL TALBOT, M.D., ARLENE

TINKER, M.D., MANAR HANNA, M.D.,

LAWRENCE DONKOR, M.D., RICHARD

HELLANDER, M.D., and AHAB GABRIEL,

M.D.,

Defendants-Respondents,

and

GRACE MELENDEZ, M.D.,

Defendant.

___________________________________________________

 

Submitted January 6, 2009 - Decided

Before Judges Fuentes and Chambers.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, L-2528-07.

Feldman & Pinto, P.C., attorneys for appellant (Rosemary Pinto, on the brief).

Holtzman & McClain, P.C., attorneys for respondents (Stephen D. Holtzman, of counsel; Jeffrey S. McClain, on the brief).

PER CURIAM

Plaintiff Cecil Fearon, a prisoner at the East Jersey State Prison, brought this suit against defendant Correctional Medical Services, Inc. (CMS) and defendant doctors Paul Talbot, M.D., Arlene Tinker, M.D., Manar Hanna, M.D., Lawrence Donkor, M.D., Richard Hellander, M.D., and Ahab Gabriel, M.D. for claims arising out of medical services provided to him while in prison. The trial court granted summary judgment to defendants. Plaintiff appeals only the dismissal of his medical negligence claims which the trial judge found barred by the statute of limitations. We reverse, concluding that the medical negligence claims were timely filed.

The essence of plaintiff's medical negligence claims is that defendants delayed in providing him with surgery on his cervical spine, causing him harm. Plaintiff, who was incarcerated in 1996, sets forth a long history of seeking treatment in prison for pain in his back, difficulty walking, and other medical problems. An MRI was conducted of his cervical spine in August 2003 and again in March 2004. On April 28, 2004, he saw defendant Dr. Talbot for a neurological evaluation. Dr. Talbot's notes of the visit set forth the following plan:

1. Have a reconsult with neurosurgery and

to send MRI cervical spine along

2. Written consent obtained to go out for

neck surgery if requested and approved

3. Continue current therapy.

(emphasis added)

On that day, plaintiff signed a surgical consent form stating that he consented to "neck surgery if offered" (emphasis added).

On June 22, 2004, plaintiff saw Dr. Anthony Churico, a board certified neurological surgeon, who recommended a cervical discectomy and fusion. No surgery was scheduled. About ten months later, in April 2005, plaintiff was referred back to Dr. Churico, who again recommended the surgery. The surgery still was not scheduled until January 2006, when it was finally performed. According to Dr. Churico, this delay in performing the surgery caused plaintiff's condition to worsen and compromised the results of the surgery.

On May 1, 2006, plaintiff filed a complaint in federal court, asserting civil rights violations and common law contract and tort claims, including a medical malpractice claim, based on these events. Defendants CMS and Drs. Talbot, Tinker, and Hanna, were named as defendants in that suit along with others and John Does. While defendant Drs. Donkor, Hellander, Gabriel and Melendez were not named as defendants in the first federal complaint, they appear as defendants in the second amended federal complaint filed on July 27, 2006, and medical malpractice claims were asserted against them.

On motions for summary judgment, the federal judge by order of February 2, 2007, disposed of the federal claims and dismissed without prejudice the state causes of action, including the medical malpractice claims. The federal judge noted that the state law claims could be asserted in state court, stating: "[d]ismissal would be unfair if Plaintiff's claims were time-barred in state court, however the remaining state law claims may be brought within thirty days in an appropriate state court pursuant to 28 U.S.C. 1367(d)."

Plaintiff commenced this action in state court on March 1, 2007, within the requisite thirty days. A year later, defendants moved for summary judgment, contending that the claims against Dr. Talbot and the corporate negligence claims were barred by the statute of limitations and that the proofs could not sustain the balance of the claims.

By order dated April 25, 2008, the trial court dismissed the claims against all defendants with prejudice. The trial court found that all of the medical negligence claims against defendants were barred by the statute of limitations. In reaching this conclusion, it determined that plaintiff's medical malpractice claims accrued on April 28, 2004, the date he saw Dr. Talbot. Since the complaint was filed on May 1, 2006, it was three days late. In addition, the court determined that the corporate negligence claim against CMS was barred by the doctrine of res judicata. In light of these rulings and the fact that plaintiff was withdrawing the intentional infliction of emotional distress claims, the trial court also dismissed the punitive damages claims.

Plaintiff appeals the order of April 25, 2008. The sole issue raised in plaintiff's brief is that the trial court erred in dismissing the medical negligence claims. Plaintiff contends that those claims were filed within the statute of limitations.

Since the statute of limitations issue was resolved on a motion for summary judgment, our review is de novo, and we employ the same standard as the trial court. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). If the movant will prevail as a matter of law when the evidence is viewed in the light most favorable to the non moving party, then the movant is entitled to summary judgment. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995); R. 4:46-2(c). We need not defer to the trial court's interpretation of the law, or its determination of the legal consequences that flow from undisputed facts. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

Medical malpractice actions are governed by a two year statute of limitations and so must be commenced within two years after the cause of action accrued. N.J.S.A. 2A:14-2. The filing of a federal complaint tolls the running of the statute of limitations on any state law claims asserted in the federal complaint. 28 U.S.C.A. 1367(d). When a federal court dismisses the state law claims without prejudice, the tolling continues for an additional period of thirty days. Ibid.

Plaintiff's medical negligence claims were first asserted in the federal case commenced on May 1, 2006. That filing tolled the running of the statute of limitations on those claims. On February 2, 2007, the federal court dismissed the state law claims without prejudice, and plaintiff filed this action on March 1, 2007, within the thirty day time period. As a result, the relevant filing date for the tolling of the statute of limitations is the federal filing date of May 1, 2006.

The trial court determined that plaintiff knew of the need for cervical surgery on April 28, 2004. As a result, the trial court found that plaintiff's cause of action accrued on that date, and hence the medical malpractice claims in the federal complaint were untimely filed. We disagree.

Certainly, when plaintiff saw Dr. Talbot on April 28, 2004, he knew that cervical surgery was being considered. Indeed, he signed a consent for such surgery on that day. However, from our review of the records it does not appear that a medical decision had been made that the surgery was required. Dr. Talbot's notations on the visit setting forth the plan for future treatment state that a consultation with a neurosurgeon was required. The notes further state that plaintiff's written consent to the surgery was "obtained to go out for neck surgery if requested and approved" (emphasis added). The surgical consent form signed by plaintiff that day indicates that plaintiff consented to "neck surgery if offered" (emphasis added). Thus, when plaintiff left Dr. Talbot that day, he knew that an evaluation was required by a neurosurgeon before any surgery could go forward. That evaluation did not take place until June 22, 2004, when plaintiff was seen by Dr. Churico who found that plaintiff needed a discectomy and fusion. The federal complaint was filed within the two year period from this date and thus was timely filed. Accordingly, the medical negligence claims were not barred by the statute of limitations.

Defendant Dr. Talbot contends that the claim against him is barred by the statute of limitations because the last time he saw plaintiff was on April 28, 2004. If plaintiff's claim against Dr. Talbot accrued on that date, then it would be barred by the statute of limitations. However, plaintiff does not contend that Dr. Talbot was negligent on that date. Rather, plaintiff's theory is that Dr. Talbot, along with the other defendants, was negligent in failing to have the surgery provided once it was recommended by the neurosurgeon on June 22, 2004. As a result, this claim is not barred by the statute of limitations. We make no determination on whether the proofs are sufficient to sustain this claim against Dr. Talbot.

 
We reverse the dismissal of the medical malpractice claims because they are not barred by the statute of limitations. We do not reach the issues of whether the proofs are otherwise sufficient to sustain these claims on a motion for summary judgment.

Reversed and remanded.

Defendant CMS had an exclusive contract to provide medical services to New Jersey prison inmates during this time period.

While Grace Melendez, M.D. was also named as a defendant, plaintiff dismissed her from the case with prejudice by stipulation dated October 17, 2007.

(continued)

(continued)

8

A-4686-07T3

February 19, 2009