MARVIN PALMER v. DR. ALFRED M. FIUME, individually and in his official capacity and CORRECTION MEDICAL SERVICES INC. individually and in its official capacity - and DR. ELMIRA KAPCHITS, M.D individually and in her official capacity, and DAVID FLYNN, i

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1453-07T31453-07T3

MARVIN PALMER,

Plaintiff-Appellant,

v.

DR. ALFRED M. FIUME, individually

and in his official capacity,

and CORRECTION MEDICAL SERVICES,

INC. individually and in its

official capacity,

Defendants-Respondents,

and

DR. ELMIRA KAPCHITS, M.D.,

individually and in her

official capacity, and DAVID

FLYNN, individually and in

his official capacity,

Defendants.

_______________________________________

 

Argued March 31, 2009 - Decided

Before Judges Wefing, Parker and Yannotti.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-6999-03.

Arthur T. Smith, Jr. argued the cause for appellant (Paul F. Fenmore, attorney; Mr. Smith, on the briefs).

Russel V. Mancino argued the cause for respondent Dr. Alfred Fiume (Widman, Cooney & Wilson, L.L.C., attorneys; Mr. Mancino, of counsel and on the brief).

Sean X. Kelly argued the cause for respondent CMS (Marks O'Neill O'Brien & Courtney, P.C., attorneys; Timothy J. Galanaugh, on the brief).

PER CURIAM

Plaintiff Marvin Palmer appeals from orders entered at trial dismissing with prejudice his claims against defendants Dr. Alfred M. Fiume ("Fiume") and MS, Inc. ("CMS"). For the reasons that follow, we affirm in part, reverse in part and remand for a new trial.

I.

We briefly summarize the relevant facts. In 1995, CMS submitted a bid and was thereafter awarded a contract with the State of New Jersey to provide the New Jersey Department of Corrections ("NJDOC") medical, mental and dental services for inmates in the State's correctional system. CMS provided these services through a managed care structure that included a primary hospital agreement with St. Francis Medical Center ("St. Francis"), a network of specialty care physicians and a primary care provider base located at the State's major facilities.

In April 1996, Correctional Dental Associates ("CDA") entered into an agreement with CMS to provide dental care to the State's inmates. Fiume, a licensed dentist who had been working for the NJDOC while maintaining a part-time practice in Jersey City, became a CDA employee. In 2001, Fiume worked several days a week at East Jersey State Prison ("East Jersey") in Woodbridge.

In 2000, plaintiff was convicted of robbery and sentenced to a term of incarceration in state prison. On February 27, 2001, plaintiff was taken to the NJDOC's Central Reception and Assignment Facility ("CRAF") in Trenton for medical and dental evaluations prior to his placement in a facility within the state prison system.

Dr. Joseph E. Prunetti ("Prunetti") performed plaintiff's initial dental examination. An assistant took a "panorex" or "full mouth" X-ray. Prunetti's intake form indicated that plaintiff had no dental problems that required immediate attention; however, Prunetti recommended a treatment plan for certain teeth. Prunetti's plan did not state that tooth number one required treatment, although Prunetti later testified at a deposition that he told his assistant the tooth had to be extracted.

The NJDOC required inmates at the CRAF to sign a general consent form for medical, dental or surgical treatment. Plaintiff signed the form. It stated that plaintiff had the right to receive necessary health care services regardless of his ability to pay, and that Prunetti had recommended sequential dental treatment, as indicated on the chart. Prunetti also signed the form, indicating that plaintiff read the form, and that Prunetti explained the form to plaintiff.

In March 2001, plaintiff was assigned to East Jersey. At the time, CMS employed David Flynn ("Flynn") as a health care administrator. Flynn oversaw staffing and medical-related activities for CMS. CMS also employed Dr. Elmira Kapchits ("Kapchits") as the site medical director at East Jersey. Kapchits supervised the staff physicians and nursing staff and responded to requests for treatment.

In July 2001, plaintiff chipped his front tooth while playing basketball. On August 6, 2001, plaintiff saw Fiume at East Jersey's dental clinic. Fiume determined that the chipped tooth was "just cosmetic" but another tooth required extraction, specifically the upper left, third molar or wisdom tooth, also known as tooth number sixteen.

Fiume did not take X-rays but believed that the tooth was severely decayed and nerve exposure could have developed after plaintiff's intake exam. Fiume did not obtain plaintiff's written consent for the procedure; rather, he relied upon the consent to treatment that plaintiff signed in February 2001 while at the CRAF. Fiume administered anesthesia and removed the tooth.

Plaintiff said that Fiume did not advise him of the possible complications or risks before extracting the tooth. Fiume stated, however, that before performing an extraction, it was his "common practice" to advise patients of possible complications including pain, infection, swelling and bleeding. Fiume also stated that, when extracting third molars, he advised patients of the "remote possibility" of creating a hole between the mouth and the sinus, known as an "oral antral communication" or "fistula."

Plaintiff saw Fiume again on September 7, 2001, for a filling in tooth number eighteen. Relying on his clinical observations and plaintiff's panorex, Fiume recommended the extraction of another wisdom tooth, specifically tooth number one, based on the presence of a large caries lesion or tooth decay. The tooth was not, however, extracted at that time. On September 16, 2001, plaintiff submitted another request for treatment for an ache in his front, chipped tooth.

Fiume saw plaintiff on September 25, 2001. Fiume's notes indicate that plaintiff had complained of pain in the upper right area of his mouth. Fiume did not take any other X-rays. He did not believe any critical treatment was required for the chipped tooth but, based on his examination and review of the panorex, recommended extraction of tooth number one. Plaintiff agreed to the procedure and Fiume extracted the tooth.

Plaintiff testified that Fiume did not inform him of the risks associated with the extraction. Fiume testified that, based on his common practice, he would have advised plaintiff of the possible risks of sinus exposure, pain and infection. Fiume did not have plaintiff sign a written consent form. As with the extraction of tooth sixteen, Fiume relied upon the general consent form that plaintiff signed in February 2001 and plaintiffs' verbal consent.

On October 2, 2001, plaintiff sought follow-up medical treatment, explaining that he had a wisdom tooth pulled on September 25, 2001. In his request for treatment, plaintiff wrote that, when he blew his nose, "a bunch of puss [sic] came flying out of [his] mouth." He also wrote that there was blood in his spit and his face was starting to swell.

Fiume saw plaintiff on October 9, 2001, and treated him for pain, pus and slight swelling in the upper right area of the mouth. Fiume made a diagnosis of an infection secondary to ostitis, which he described as an infection of the bone. Fiume prescribed Motrin and penicillin.

On October 19, 2001, plaintiff again sought follow-up treatment, stating on the request form that treatment was needed because of "vomit with blood in it." Plaintiff also wrote that there was blood in his spit and that the hole where his tooth had been extracted had not closed. Fiume examined plaintiff on October 22, 2001, and wrote in his chart that plaintiff still had a discharge and probable sinus exposure in the area of the extraction. Fiume changed plaintiff's medication and gave plaintiff a decongestant.

Plaintiff returned to Fiume for treatment on October 29, 2001. Fiume noted that the extraction site was healing well with no discharge. He also noted that plaintiff had reported no pain. Three days later, on November 1, 2001, plaintiff submitted another request for dental treatment, complaining of swelling in the face, pressure in the nasal passage, pus running from the extraction site and bleeding.

Fiume re-examined plaintiff the following day. Plaintiff's chart indicated that an "[o]ral antral communication with infection persists." Fiume saw plaintiff again on November 6, 2001. He noted a discharge from the extraction site. Fiume asked plaintiff to return in six days so that he could evaluate whether plaintiff should be referred to an oral surgeon. Fiume examined plaintiff again on November 14, 2001, and prepared a referral form, which CMS approved.

Plaintiff was scheduled to see an oral surgeon on December 13, 2001, but the surgeon cancelled the appointment. Fiume treated plaintiff for drainage and swelling problems on December 14, 2001. The surgeon saw plaintiff on December 20, 2001, and he ordered a CT scan, which was performed at St. Francis on January 22, 2002.

The CT scan revealed that plaintiff had a large lesion on the maxillary sinuses, along with a cyst and polyps. Fiume reviewed the scan and wrote a referral for another consult, which was approved. After this last referral, Fiume had no further involvement with plaintiff's care.

On April 2, 2002, a "Caldwell Luc" procedure was performed at St. Francis. The purpose of this procedure was to make or enlarge an existing opening from the cheek sinus into the nose to provide drainage for debris and address the secondary infection. A pathology report dated April 10, 2002, stated that plaintiff had "severe acute and chronic sinusitis, with mucosal ulceration."

Thereafter, plaintiff saw three dentists at the prison who reportedly told him that there was nothing they could do for him and he had to see a surgeon. On August 22, 2002, CMS approved a follow-up visit with an ear, nose and throat ("ENT") specialist. On September 17, 2002, plaintiff saw the specialist, who noted the presence of the fistula and chronic sinusitis. Another CT scan was taken on October 3, 2002, and thereafter, CMS approved another consult with an oral surgeon.

On January 30, 2003, plaintiff underwent a buccal flap procedure to close the fistula. This procedure involved the raising of some healthy mucous membranes on both sides of the fistula and sewing them over the opening. The procedure was unsuccessful. In February 2003, CMS approved follow-up care for the fistula and a consult with an oral surgeon. Additional follow-up care was approved in March 2003.

On April 4, 2003, another CT scan was taken at St. Francis. The scan indicated that there was evidence of sinus inflammation on both sides. In June 2003, plaintiff had an ENT evaluation, which revealed that he still had pus draining from his mouth and nose, swelling in his right check, with pain, headaches and the inability to lie flat. Plaintiff was diagnosed with a persistent oral antral fistula.

On September 30, 2003, plaintiff was seen by an ENT specialist at the University of Medicine and Dentistry of New Jersey ("UMDNJ"), who recommended a follow-up in two weeks. CMS ordered the follow-up appointment, which was approved by CMS's group medical director. Plaintiff evidently saw Dr. Rivera ("Rivera") on October 16, 2003. According to Rivera's hand-written notes on the bottom of the referral form, Rivera recommended a CT scan, extensive surgeries for the fistula, including a bone graft, and treatment for plaintiff's sinus infection.

In December 2003, another buccal flap procedure was performed to close the fistula. An adjacent tooth also was extracted to expose more healthy tissue so that it could be used in the closure. The procedure was unsuccessful. In early June 2004, an ENT specialist at UMDNJ determined that plaintiff's sinusitis was permanent and could not be repaired.

Sometime in the fall of 2004, Dr. Ira J. Saber ("Saber"), an oral surgeon at UMDNJ, examined plaintiff at the request of plaintiff's attorney. Saber advised plaintiff that the open communication with the sinus was correctable. CMS approved the procedure to close the fistula. On March 1, 2005, Saber performed bone graft surgery and closed the fistula. In March 2006, plaintiff was released from custody.

In this action, plaintiff asserted claims against Fiume, CMS, Kapchits and Flynn. On December 18, 2006, CMS, Kapchits and Flynn filed a motion for summary judgment. On February 2, 2007, the court entered an order granting the motion as to Kapchits and Flynn, but denying the motion as to CMS. On June 15, 2007, CMS filed another motion for summary judgment which was denied.

Trial in the matter commenced on October 10, 2007. After plaintiff rested, CMS and Fiume sought involuntary dismissal of the claims against them pursuant to Rule 4:37-2(b). The court granted CMS's motion but reserved decision on Fiume's motion. After the close of all of the evidence, Fiume renewed his motion for involuntary dismissal and the court granted it.

On October 19, 2007, the court entered an order dismissing all claims and cross-claims against CMS with prejudice. On November 16, 2007, the court entered an order dismissing with prejudice all claims and cross-claims against Fiume. This appeal followed. We note that in this appeal, plaintiff does not challenge the dismissal of his claims against Kapchits and Flynn.

II.

We first consider plaintiff's appeal from the trial court's order dismissing his claims against Fiume pursuant to Rule 4:37-2(b).

When a motion for involuntary dismissal is made pursuant to Rule 4:37-2(b), the trial court must determine whether "the evidence, together with the legitimate inferences therefrom, could sustain a judgment in plaintiff's favor." Ibid. The court is "not concerned with the worth, nature or extent (beyond a scintilla) of the evidence, but only with its existence, viewed most favorably to the party opposing the motion." Dolson v. Anastasia, 55 N.J. 2, 5-6 (1969).

A. Negligence Claim.

In this matter, plaintiff alleged that Fiume was negligent in extracting tooth number one. In support of that claim, plaintiff presented testimony from Dr. Mark Gelber ("Gelber"), who stated that Fiume deviated from the standard of care in the dental profession by extracting the tooth based solely upon the panorex, coupled with the fact that plaintiff had testified that he did not have any pain in this area.

In granting Fiume's motion for involuntary dismissal, the trial court found that plaintiff failed to present a prima facie case of dental malpractice. In order to prevail on that claim, plaintiff had to present sufficient evidence to establish the applicable standard of care, that defendant deviated from that standard and the deviation proximately caused the injury. Verdicchio v. Ricca, 179 N.J. 1, 23 (2004) (citations omitted).

The trial court found that plaintiff's malpractice claim failed as a matter of law because Gelber's testimony was a statement of his personal opinions not a statement of the applicable standard of care in the dental profession. Experts in negligence cases must establish the actual existence of a standard of care, not simply declare their personal preferences or the conduct they wish to encourage. C.W. v. Cooper Health Sys., 388 N.J. Super. 42, 64 (App. Div. 2006).

At trial, Gelber explained the basis for his opinions:

I don't think this X-ray is enough to determine whether this tooth had anything wrong with it whatsoever. I really don't believe that you can tell with this X-ray. You can tell it looks pretty healthy, I'll say that.

However, I do not think that this is enough information by itself, . . . with no patient complaint, in fact, it was in a different direction. The complaint that he came in with was a chip in his interior region. That was never addressed. This was addressed first. And I'm at a loss as to why.

Gelber was asked if his opinion as to the deviation was based on his "personal opinion that [the] film [was] not diagnostic of a problem with Tooth #1," and he said, "[t]hat's absolutely correct."

In our judgment, the trial court correctly found that Gelber's testimony was insufficient to establish the standard of care applicable in the dental profession for the extraction of a tooth. As Gelber conceded, his opinion was personal to him. It was not a statement as to the applicable standard of care. Thus, plaintiff failed to present sufficient evidence to support his dental malpractice claim against Fiume. We therefore conclude that the trial court did not err by dismissing plaintiff's negligence claim against Fiume.

B. Lack-of-Informed-Consent Claim.

Plaintiff also asserted a claim against Fiume for lack of informed consent. To prevail on that claim, plaintiff was required to show that:

(1) the physician failed to comply with the [reasonably-prudent-patient] standard for disclosure; (2) the undisclosed risk occurred and harmed the plaintiff; (3) a reasonable person under the circumstances would not have consented and submitted to the operation or surgical procedure had he or she been so informed; and (4) the operation or surgical procedure was a proximate cause of plaintiff's injuries.

[Bennett v. Surgidev Corp., 311 N.J. Super. 567, 572-73 (App. Div. 1998).]

In support of this claim, plaintiff proffered Cosmo J. DeFazio ("DeFazio"), a registered nurse, as an expert witness to testify that the CRAF consent form did not properly or completely advise plaintiff of the risks and complications of a molar extraction. The trial court conducted an N.J.R.E. 104 hearing and determined that DeFazio did not have the qualifications to provide expert testimony on plaintiff's lack-of-informed-consent claim.

The court thereafter concluded that plaintiff failed to present a prima facie case on his lack-of-informed-consent claim. The court found that plaintiff had not presented any competent expert testimony to establish the applicable standard of disclosure. The court additionally determined that plaintiff had not presented expert testimony showing that an undisclosed risk occurred and harmed plaintiff. The court thereupon dismissed plaintiff's claim.

Plaintiff argues that the court erred by barring DeFazio's testimony. We disagree. DeFazio is a registered nurse. He did not possess "sufficient knowledge of [the] professional standards applicable to" plaintiff's lack-of-informed-consent claim. Sanzari v. Rosenfeld, 34 N.J. 128, 136 (1961).

Plaintiff had to establish that Fiume failed to provide him with information that would enable him to evaluate the treatment options available and the associated risks. Perna v. Pirozzi, 92 N.J. 446, 459 (1983) (citing Canterbury v. Spence, 464 F.2d 772, 780 (D.C. Cir.), cert. denied, 409 U.S. 1064, 93 S. Ct. 560, 34 L. Ed. 2d 518 (1972)). As a registered nurse, DeFazio was not qualified to opine on dental treatment and the risks of such treatment.

We have recognized that, in certain cases, "a doctor in one field would be qualified to render an opinion as to the performance of a doctor in another with respect to their common areas of practice." Wacht v. Farooqui, 312 N.J. Super. 184, 187-88 (App. Div. 1998) (citing Rosenberg by Rosenberg v. Cahill, 99 N.J. 318, 331-34 (1985); Sanzari, supra, 34 N.J. at 136). This is not such a case. DeFazio and Fiume were not engaged in a common area of practice.

Plaintiff argues that Fiume waived any objection to DeFazio's testimony because DeFazio had issued the affidavit of merit in this case and Fiume never objected to DeFazio's qualifications to do so. This contention is without sufficient merit to warrant discussion. R. 2:11-3(e)(1)(E). Suffice it to say, Fiume's failure to object to the affidavit of merit did not preclude him from objecting to DeFazio's trial testimony on the basis of a lack of qualifications.

Plaintiff also contends that his lack-of-informed-consent claim was established in part by proof that Fiume did not comply with N.J.A.C. 10A:16-5.1, a regulation promulgated by the NJDOC. The regulation provides in pertinent part that:

(a) [t]he express written consent of the inmate shall be required for:

1. Surgery;

2. Invasive procedures; and

3. Medical and dental procedures governed by informed consent standards in the community.

(b) In order to obtain written informed consent, the EMR [Electronic Medical Record] Consent for Treatment form shall be read, completed in its entirety and signed by the inmate or guardian and a witness. The contents of the form shall be presented verbally to illiterate inmates, inmates not sufficiently conversant with the English language and inmates otherwise unable to read due to a physical/medical inability. Notation of verbal notice shall be recorded on the form. The signed consent form shall be maintained in the inmate's MRF [Medical Reference File].

The NJDOC regulation thus requires written consent for dental procedures in accordance with "informed consent standards in the community." N.J.A.C. 10A:16-5.1(a)(3). The NJDOC regulation does not, however, establish the standard of disclosure relevant to any particular dental procedure. Therefore, evidence of Fiume's failure to comply with the regulation did not establish that Fiume deviated from the standard of disclosure applicable to the tooth extraction procedure at issue here.

Plaintiff additionally contends that Fiume's deposition testimony, which was read into the record as part of plaintiff's case, established the applicable standard of disclosure for informed consent. In his testimony, Fiume was asked whether he had given plaintiff any information or warnings as to the possible consequences of the extraction of tooth number one. Fiume stated that he did not recall what he said to plaintiff but testified that it was his "common practice to tell patients the remote possibility of sinus exposure, pain and infection following an extraction."

Fiume's testimony established his "common practice" of disclosure. Fiume was not asked, nor did he state, that his practice represents the standard of disclosure of the dental profession for the extraction of a wisdom tooth. Without such testimony, plaintiff's lack-of-informed-consent claim failed as a matter of law.

Plaintiff also argues that proof of the applicable standard of disclosure was not required because Fiume's counsel asserted in his opening statement that exposure and infection were known risks of a wisdom tooth extraction and Fiume had a duty to disclose those risks. Again, we disagree. Counsel's statements were not evidence and his remarks did not establish the applicable standard of disclosure in the dental profession for plaintiff's tooth extraction.

We therefore conclude that the trial court did not err by dismissing plaintiff's lack-of-informed-consent claim against Fiume.

III.

Next, we consider plaintiff's appeal from the trial court's order granting CMS's motion for involuntary dismissal pursuant to Rule 4:37-2(b).

A. Breach-of-Contract Claim.

The trial court ruled that plaintiff had not properly pled a cause of action for breach of contract in his complaint or during the course of discovery. The court found that the breach-of-contract claim was merely an "afterthought" raised in response to CMS's motion for summary judgment. The court further determined that, even if plaintiff had given CMS proper notice of this claim, plaintiff did not have standing as a third-party beneficiary to assert a claim under CMS's contract with the NJDOC.

Plaintiff argues that he provided adequate notice to CMS of his breach-of-contract claim and the court erred by refusing to allow him to amend his pleadings pursuant to Rule 4:9-2 to formally add this claim to the case. He further argues that the court erred in finding that he was not a third-party beneficiary under CMS's contract with the NJDOC.

We see no reason to determine whether plaintiff had properly pled a breach-of-contract claim against CMS, or whether the trial court erred by refusing to permit plaintiff to amend his complaint during the trial pursuant to Rule 4:9-2 because we are convinced that the trial court correctly ruled that plaintiff did not have standing as a third-party beneficiary to pursue that claim.

A third-party may only enforce a contract if it is an intended beneficiary, rather than an incidental beneficiary, of the agreement. Broadway Maint. Corp. v. Rutgers, 90 N.J. 253, 259 (1982) (citing Standard Gas Power Corp. v. New England Cas. Co., 90 N.J.L. 570, 573-74 (E. & A. 1917)). "'The determining factor as to the rights of a third party beneficiary is the intention of the parties who actually made the contract.'" Ibid. (quoting Brooklawn v. Brooklawn Hous. Corp., 124 N.J.L. 73, 76-77 (E. & A. 1940)).

"'[T]he real test is whether the contracting parties intended that a third party should receive a benefit which might be enforced in the courts; and the fact that such a benefit exists, or that the third party is named, is merely evidence of this intention.'" Ibid. (quoting Brooklawn, supra, 124 N.J.L. at 76-77). The contracting parties "may expressly negate any legally enforceable right in a third party." Id. at 260. If the contract is silent on the issue, the court must "examine the pertinent provisions in the agreement and the surrounding circumstances to ascertain that intent." Ibid. (citing Talcott v. H. Corenzwit & Co., 76 N.J. 305, 312 (1978)).

The record before us only includes excerpts from the State's bid specifications for the contract ultimately awarded to CMS. The excerpts indicate that it was the State's intent to enter into a contract to provide medical, mental and dental services at twelve adult correctional institutions and two juvenile facilities.

The State's bidding specifications also indicate that in Fiscal Year 1996, about 26,000 persons were housed in the State's prisons, halfway houses and county jails. The specifications note that the NJDOC is responsible, through the contractor, for providing inmate health care services and the State's objective was to obtain a contractor to manage a comprehensive health care services program that delivers "high quality health care services[.]"

Plaintiff has not pointed to any contractual provision which expressly confers third-party beneficiary status upon any of the inmates that may receive services pursuant to the contract. There is also no provision in the agreement which expressly provides that inmates do not have third-party beneficiary status thereunder. Nevertheless, we are convinced that the purpose of the contract and the intent of the parties to the agreement is to confer contractual beneficiary status only upon the NJDOC and CMS.

The primary goal of the contract is to provide the NJDOC with services so that it may meet its constitutional obligation to provide required health care to inmates within its custody and control. Inmates in the State correctional system are beneficiaries under the contract between CMS and the NJDOC but they are indirect beneficiaries. Plaintiff has not established that the NJDOC and CMS intended to confer upon each and every inmate in the State correctional system a right to enforce the contract as an intended beneficiary under the agreement.

We accordingly conclude that the trial court did not err by dismissing plaintiff's breach-of-contract claim against CMS.

B. Negligence Claim.

Plaintiff also asserted a negligence claim against CMS. The trial court determined that plaintiff's negligence claim against CMS failed as a matter of law because CMS could not be vicariously liable for medical malpractice under the Health Maintenance Organizations Act, N.J.S.A. 26:2J-1 to -47 (the "HMO Act").

Plaintiff contends, however, that CMS may be liable for the negligent delay in authorizing treatment to correct the oral antral communication on several grounds. He contends that CMS essentially assumed the role of a "health maintenance organization" and may be liable under the HMO Act on the basis of vicarious liability or its own negligence. Plaintiff further argues that, because CMS assumed the State's constitutional duty to provide medical treatment to inmates in the State correctional system, it can be vicariously liable for the negligence of its independent contractors.

We agree with the trial court's conclusion that CMS may not be liable under the HMO Act. Contrary to plaintiff's argument, CMS does not meet the definition of a "health maintenance organization" under the HMO Act. That term is defined in N.J.S.A. 26:2J-2(f) to mean "any person which directly or through contracts with providers furnishes at least basic comprehensive health care services on a prepaid basis to enrollees in a designated geographical area." Inmates in State correctional facilities are not "enrollees" in a "health maintenance organization." Thus, the HMO Act does not establish a basis for CMS's liability in this case.

There is, moreover, no basis for the imposition of vicarious liability upon CMS for the alleged negligence of its independent contractors, assuming such a claim can be asserted. See Scott-Neal v. N.J. State Dept. of Corr., 366 N.J. Super 570, 574 (App. Div. 2004) (noting that the court had previously ordered the dismissal of a claim against CMS on the basis of vicarious liability because CMS did not exercise authority over the practice of medicine by physicians retained to provide care to inmates). But see Jackson v. Fauver, 334 F. Supp. 2d 697, 744 (D.N.J. 2004) (holding that CMS could be subject to vicarious liability for the negligence of its subcontractors). Because plaintiff's claim against Fiume failed as a matter of law, there is no basis for vicarious liability of the part of CMS.

Nevertheless, we are convinced that the trial court erred by dismissing plaintiff's negligence claim against CMS. In our view, CMS owed plaintiff a duty to exercise reasonable care in the provision of medical care to address the complications that developed after the extraction of plaintiff's tooth.

"The question of whether a duty to exercise reasonable care to avoid the risk of harm to another exists is one of fairness and policy that implicates many factors." Carvalho v. Toll Bros. and Developers, 143 N.J. 565, 572 (1996) (citing Dunphy v. Gregor, 136 N.J. 99, 110 (1994)). The ability to foresee injury to a potential plaintiff "is a significant consideration in the determination of a duty to exercise reasonable care." Ibid. If foreseeability is established, "'considerations of fairness and policy govern whether the imposition of a duty is warranted.'" Id. at 573 (quoting Carter Lincoln-Mercury, Inc. v. EMAR Group, Inc., 135 N.J. 182, 194-95 (1994)).

It is undisputed that CMS had a contractual duty to provide medical, mental and dental services to inmates in the State correctional system. It was foreseeable that if an inmate required treatment and it was not provided in a timely manner, the inmate could suffer harm. Imposition of such a duty is also consistent with public policy because, by entering into the contract, CMS essentially "stepped into [the] shoes" of the NJDOC and assumed its duty to provide adequate care to inmates. Jackson, supra, 334 F. Supp. 2d at 744.

In our judgment, plaintiff presented sufficient evidence to establish a prima facie case of negligence against CMS. Dr. S. Thomas Westerman ("Westerman"), an ENT specialist, testified that the bone graft surgery performed in March 2005 should have been performed within six months of the September 2001 extraction of tooth number one, that the delay in closing the fistula and the recurring infections caused a thickening of the posterior wall of plaintiff's right maxillary sinus, and that this thickening contributed to plaintiff's chronic sinusitis and related complications.

Westerman also testified that, while the specific treatments employed here were appropriate, the treatment "stretched out too long" and, as a result, plaintiff developed a chronic sinus problem. Westerman said that the fistula was not closed until March 2005, when the bone graft procedure was performed. Westerman opined that, had that procedure been performed in 2002, plaintiff would not have the chronic sinus condition and related complications.

Based on Westerman's testimony, a reasonable jury could find that CMS was negligent in failing to provide plaintiff with timely and appropriate medical care. A reasonable jury also could find that CMS's negligence was a proximate cause of plaintiff's injuries. The trial court, therefore, should not have dismissed plaintiff's negligence claim against CMS.

C. Evidence Issues.

Plaintiff argues that the trial court erred by quashing the subpoena issued for the testimony of an official of the State Department of Treasury to lay a foundation for the introduction of CMS's contract with the NJDOC, and by barring the admission of the contract into evidence. Plaintiff additionally argues that the court erred by refusing to allow him to introduce a handwritten portion of the October 2003 referral which contained Rivera's recommendation for bone graft surgery.

A trial court's evidentiary rulings are reviewed under an abuse-of-discretion standard. Benevenga v. DiGregorio, 325 N.J. Super. 27, 32 (App. Div. 1999) (citing State v. Erazo, 126 N.J. 112, 131 (1991)), certif. denied, 163 N.J. 79 (2000). A "trial court is granted broad discretion in determining both the relevance of the evidence to be presented and whether its probative value is substantially outweighed by its prejudicial nature." Green v. N.J. Mfrs. Ins. Co., 160 N.J. 480, 492 (1999). We will not substitute our judgment for that of the trial court unless the court's ruling "'was so wide [of] the mark that a manifest denial of justice resulted.'" Ibid. (quoting State v. Carter, 91 N.J. 86, 106 (1982)).

In this case, the trial court barred plaintiff from admitting CMS's contract with the NJDOC based on its finding that plaintiff did not have standing to assert a claim against CMS as a third-party beneficiary. Although we agree that plaintiff could not pursue a breach-of-contract claim against CMS, we are nevertheless convinced that the court erred by barring admission of the contract because it was relevant to plaintiff's negligence claim against CMS.

The contract established the reasons for CMS's involvement with plaintiff's care. The contract was therefore relevant to whether CMS breached its duty to exercise reasonable care and whether CMS's alleged negligence was a proximate cause of plaintiff's injury.

We also conclude that the court erred by refusing to allow plaintiff to introduce the October 2003 referral with Rivera's notes. Rivera's notes were part of plaintiff's medical records, which are considered business records, and are admissible under N.J.R.E. 803(c)(6) as an exception to the hearsay rule. The court found, however, that Rivera's notes were not admissible under the business records exception because the notes contained a complex medical diagnosis that was a critical disputed issue in the case. Nowacki v. Cmty. Med. Ctr., 279 N.J. Super. 276, 282-83 (App. Div.), certif. denied, 141 N.J. 95 (1995).

We are convinced, however, that the trial court should have admitted the notes into evidence. Plaintiff did not seek to admit Rivera's notes for the truth of the facts stated therein. Plaintiff did not intend to rely upon the notes to establish that he required bone graft surgery. That point was established with Westerman's testimony. Rather, plaintiff sought to admit the notes to show that CMS was aware in October 2003, that a recommendation had been made for bone graft surgery and CMS delayed in following through on that recommendation.

Rivera's notes, although hearsay, could be admitted with a limiting instruction as to their use, provided that the probative value of the evidence is not substantially outweighed "'by the danger of its improper use.'" See Bonitsis v. N.J. Inst. of Tech., 363 N.J. Super. 505, 525 (App. Div. 2003) (quoting Spragg v. Shore Care, 293 N.J. Super. 33, 57 (App. Div. 1996)), rev'd on other grounds, 180 N.J. 450 (2004).

In our judgment, Rivera's notes were probative on the issue of whether CMS negligently delayed plaintiff's treatment, and the probative value of the evidence outweighs the danger of its improper use. We must assume that the jury would abide by the court's limiting instruction and not use this evidence improperly.

Accordingly, we affirm the dismissal with prejudice of plaintiff's breach of contract claim against CMS and his claims against Fiume but reverse the dismissal of plaintiff's negligence claim against CMS. We remand the matter to the trial court for a new trial on that claim.

 
Affirmed in part, reversed in part and remanded to the trial court for a new trial in conformity with this opinion. We do not retain jurisdiction.

In the pleadings, Correction Medical Services, Inc. was identified as "CMS." For convenience, we refer to that party as "CMS" in this opinion.

Evidence presented in this matter indicates that an "oral antral communication" or "fistula" can occur at the site of an extraction where the tooth enters the antral or maxillary sinus. Roots of the upper teeth may extend to the bottom of the maxillary or sinus check. When a tooth is pulled, a part of the sinus can be extracted with the tooth, thereby leaving a hole or fistula.

We note that N.J.S.A. 2A:53A-41 imposes rigorous criteria for the admission of expert testimony in medical malpractice cases. The statute did not apply in this case because it only applies to causes of action that accrued after July 7, 2004. L. 2004, c. 17, 33.

(continued)

(continued)

30

A-1453-07T3

August 13, 2009