TORMU E. PRALL v. STEPHEN D. HOLTZMAN et al.

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NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3701-04t13701-04T1

TORMU E. PRALL,

Plaintiff-Appellant,

v.

STEPHEN D. HOLTZMAN and

JEFFREY S. MCCLAIN,

Defendants-Respondents.

_________________________________________________

 

Submitted September 27, 2005 - Decided:

Before Judges Payne and Francis.

On appeal from Superior Court of New

Jersey, Law Division, Atlantic County,

L-3665-04.

Tormu E. Prall, appellant pro se.

Swartz Campbell, attorney for

respondents (Joseph A. Venuti, Jr.,

on the brief).

PER CURIAM

Plaintiff Tormu Prall, an inmate at the Northern State Correctional Center, appeals an order of summary judgment in favor of defendants Steven D. Holtzman and Jeffrey S. McClain on his complaint for fraudulent concealment of a document allegedly material to a claim pursuant to 42 U.S.C.A. 1893, asserted by him in a prior lawsuit against Correctional Medical Services, Inc. and certain of its employees, of defendants' deliberate indifference to his serious medical condition, in violation of his constitutional rights. We affirm.

In his prior suit, Prall v. Correctional Medical Services, Inc., filed in the Superior Court, Essex County, docket number ESX-L-1-02 (denominated Prall-3 by plaintiff, a designation that we will retain), plaintiff alleged that in or around September 25, 2001, he commenced to experience gum and throat pain. Matters progressed until, on the morning of October 2, 2001, he was examined at the prison infirmary by Richard H. Guess, D.D.S. An electronic medical record of the dental sick call bearing a time of entry of 11:43 a.m., produced in discovery in that action and identified as "CMS PRALL 493-94," indicated that the reason for the examination was "pain," that Motrin and Amoxil, an antibiotic, had been prescribed, and that an "Oral Surgery Consult [REF035]" had been ordered.

Before the consultation had taken place, at approximately 7:00 a.m. on October 4, 2001, plaintiff was observed in his cell to be in a semiconscious state. A drug overdose was considered as a possible cause of plaintiff's condition. Following telephonic consultation with a physician, plaintiff was promptly taken by ambulance to the emergency room of Newark's University Hospital, where he was diagnosed as having a right peritonsillar abscess. Plaintiff's loss of consciousness was allegedly attributed to dehydration. After the abscess was drained of puss and the area was irrigated, plaintiff was returned to the state prison infirmary, where he remained until October 9 or 10, 2001.

On January 15, 2002 plaintiff instituted suit in Prall-3 against Correctional Medical Services, Inc. a number of doctors and nurses in its employ, and various prison employees. He did not identify as defendants in his complaint or a subsequent amended complaint either Dr. Guess or the entity for which he worked, Correctional Dental Associates. Following the production of discovery by the medical defendants, they moved for summary judgment. The motion was granted by Judge Marie P. Simonelli on October 1, 2002. A motion for reconsideration was denied on May 23, 2003, and we dismissed plaintiff's appeal by order dated November 11, 2004. Plaintiff has filed a substantial number of other lawsuits including Prall v. Keaton, instituted in Mercer County under docket number MER-L-168-04 (Prall-7). In the course of discovery in Prall-7, by letter dated September 1, 2004, the defendants produced documents identified as "CMS PRALL 943-949." Among those documents was document CMS PRALL 492D, a handwritten variant, signed by Dr. Guess, of the electronic record produced in Prall-3 and identified in Prall-3 as CMS PRALL 493-94. The handwritten document stated as follows:

10-02-01 10:45 hrs.

sick call

Exam and OHI [oral hygiene instruction]

c.o.: difficulty in swallowing

tentative Dx: peri-tonsillar abscess. Oral surgery consult is a necessity

Rx amoxicillin 500 mg. x 30

Motrin 400 mg. x 12

In his complaint in the present matter, filed on September 20 2004 against the attorneys who represented the medical defendants in Prall 3, plaintiff claimed that counsel fraudulently concealed CMS PRALL 492D, and he demanded compensatory and punitive damages. Upon service of the complaint, the defendant-attorneys moved for summary judgment, and plaintiff cross-moved for a change in venue to Essex County and assignment of the matter to Judge Simonelli. In connection with the summary judgment motion, a certification was filed indicating that document 492D was not provided to counsel until August 2004, long after the dismissal of Prall 3.

The motion judge denied the change of venue, noting that plaintiff had indicated an intent to call Judge Simonelli as a witness in the matter, and granted summary judgment to defendants. In his written decision, the judge stated:

It is plaintiff's apparent position, as set forth in his complaint, that defendants fraudulently concealed the existence of 492D, and that the concealment of that document had a material impact on Judge Simonelli's decision on the motion for summary judgment which ultimately resulted in the dismissal of Prall 3. In particular, plaintiff suggests that one focus of the submissions to Judge Simonelli and the judge's ultimate decision was the question of whether the defendants in Prall 3 had sufficient knowledge as to plaintiff's condition, so that one could conclude that their failure to arrange for plaintiff's treatment rose to the level of deliberate indifference. . . . It is possible, of course, that one document or other item of evidence may be essential on such an issue. In this case, however, the court fails to see how the submission of this additional document would have any material impact on the trial court's decision on a motion for summary judgment. 494, which had been provided, indicated that medication was being prescribed and that an oral surgery consult was being considered. The need for an oral surgery consult, in and of itself, suggests there was a recognition that the plaintiff was in need of additional care. The additional reference in 492D to a tentative diagnosis of peritonsillar abscess adds very little to the question of whether or not the defendants in Prall 3 acted with deliberate indifference.

The judge properly did not base his decision on denials of fraudulent concealment by defendants or on the certification indicating the date of their receipt of the document at issue, since discovery on those issues had not taken place.

I.

On appeal, plaintiff ably argues in a pro se brief that the motion judge erred in finding that document 492D would not have had a material impact on the outcome of Prall 3 and in prematurely dismissing the present action before plaintiff had the opportunity to demonstrate that defendants had withheld the document intentionally. We find no merit in this latter argument, and do not address it further, since the motion judge specifically declined to premise his decision on issues relating to concealment.

In connection with his other argument, plaintiff asserts on appeal that disclosure of the missing document, containing a tentative diagnosis of plaintiff's condition and the notation that an oral surgery consult was "a necessity," was essential to permit him to refute the claims advanced by defendants in their brief on motion for summary judgment in Prall 3. In that connection, plaintiff claims that defendants had argued that because their clients had no knowledge of plaintiff's peritonsillar abscess until he was in the emergency room, their clients did not have the subjective knowledge regarding plaintiff's condition that would render their treatment of plaintiff deliberately indifferent and unconstitutional under Farmer v. Brennan, 511 U.S. 825, 114 S. Ct. 1970, 128 L. Ed. 2d 811 (1994).

Plaintiff claims second that defendants argued in Prall 3 that because the electronic record did not mention that an oral consult was required as an emergency measure or as soon as possible, their clients' delay in providing the consult or their denial of access to medical professionals capable of treating his condition was not deliberately indifferent and unconstitutional. However, plaintiff argues, deliberate indifference occurs when a medical professional knows that his role in a particular medical emergency is solely to serve as a gatekeeper for other medical personnel capable of treating the condition, and that professional delays or refuses to fulfill his gatekeeper role. In support of that position, plaintiff relies upon Sealock v. Colorado, 218 F.3d 1205, 1211 (10th Cir. 2000) (articulating the gatekeeper function) and Atkinson v. Taylor, 316 F.3d 257, 266 (3d Cir 2003); Brown v. Hughes, 894 F.2d 1533, 1538 (11th Cir.) cert. denied, 496 U.S. 928, 110 S. Ct. 2624, 110 L. Ed. 2d 645 (1990); and Monmouth County Correctional Institution Inmates v. Lanzaro, 834 F.2d 326, 346-47 (3d Cir. 1987), cert. denied, 486 U.S. 1106, 108 S. Ct. 1731, 100 L. Ed. 2d 195 (1988) (finding prima facie evidence of deliberate indifference, resulting in a delay in treatment of a serious medical condition, to constitute a basis for a civil rights claim for violation of the Eighth Amendment). Plaintiff contends: "The defendants' clients in Prall 3 had the authority to send plaintiff to University Hospital emergency room to treat his medical condition from the first day he complained like they did on October 04, 2001." Instead they waited until he "fell out" before doing so.

The record does not contain the parties' briefs in Prall 3 or Judge Simonelli's decisions in that case, and therefore we are unable to determine whether the arguments summarized by plaintiff were actually advanced, or determine how they were treated by the judge. Nonetheless, we find it reasonable to assume, because the allegations appear in plaintiff's complaint, that the judge considered plaintiff's claim of delay from October 2 to October 4 in providing an oral surgical consultation or treatment (other than that provided by Dr. Guess) in reaching her conclusion that plaintiff's claims against the medical professionals set forth in Prall-3 were not actionable.

In light of its procedural history, we regard Judge Simonelli's decision in that regard as nonreviewable and thus not subject to collateral attack on its merits through the present lawsuit. We do not find any factual basis to have existed in Prall-3 for a claim against the medical defendants of a denial of surgical treatment, since the electronic record pertaining to plaintiff's condition discloses the existence of an order for a consultation with an oral surgeon.

The issue thus becomes whether the added facts that Dr. Guess tentatively diagnosed plaintiff as suffering a peritonsillar abscess and declared a surgical consultation to be "a necessity" were material to plaintiff's defense to the medical defendants' claim of entitlement to summary judgment at the time that it was considered by Judge Simonelli. After a thorough review of the record provided to us on appeal, we find no ground to have been presented to suggest that they were. Because the electronic record produced in Prall-3 demonstrated that Dr. Guess had already recognized that plaintiff's complaints of pain resulted from an infection and was treating him for his condition with antibiotics and pain medication, and that he already regarded the condition as sufficiently serious as to require a surgical consultation, which he ordered, the tentative identification of the nature of plaintiff's infection added little to the question of whether, based on the knowledge available to them, the medical defendants in Prall-3 subjectively acted with deliberate indifference to plaintiff's condition in failing to provide the consultation at an earlier time. Farmer, supra, 511 U.S. at 837, 114 S. Ct. at 1979, 128 L. Ed. 2d at 825; Estelle v. Gamble, 428 U.S. 97, 104, 97 S. Ct. 285, 291, 50 L. Ed. 2d 251, 260 (1976). We note further that, contrary to plaintiff's arguments, Dr. Guess did not state in his handwritten note that a consultation was required on an emergency basis, but only that it was a necessity. No one has disputed that fact, which we find to have been sufficiently indicated in CMS PRALL 493-94 by the existence of the dentist's order in that electronic record. That the consultation had not occurred at the time of plaintiff's loss of consciousness on October 4 was, as we stated previously, something that Judge Simonelli must reasonably have considered when she dismissed plaintiff's claim. We will not revisit that decision.

In order to establish a cause of action against the defendant attorneys in this matter, plaintiff must demonstrate that counsel had a legal obligation to disclose CMS PRALL 492D, the document was material to the litigation, plaintiff could not reasonably have procured it from a source other than counsel, the document was intentionally withheld for the purpose of disrupting the litigation, and plaintiff was damaged as a result. Rosenblit v. Zimmerman, 166 N.J. 391, 406-07 (2001). We find that the document at issue was not material, and the plaintiff was not damaged as the result of its nondisclosure in Prall-3. Accordingly, we affirm the order of summary judgment entered by the motion judge.

II.

Plaintiff has argued additionally that the court erred in declining to transfer this case to Judge Simonelli in Essex County. He also urges us to exercise our original jurisdiction and to impose sanctions upon counsel in the present matter for failing to admit certain allegedly uncontested facts presented by plaintiff in opposition to defendants' motion for summary judgment, making reference in bad faith to plaintiff's multiple lawsuits, and filing affidavits that did not meet the requirements of R. 1:6-6. We decline to address these arguments, finding them to be without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

 
Affirmed.

We find no reasonable basis to have transported plaintiff to University Hospital before the consultation occurred or his condition worsened, as it did on October 4, at which time an ambulance was promptly ordered.

(continued)

(continued)

11

A-3701-04T1

November 23, 2005

 


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