RAPHAEL RODRIGUEZ, v. NEW JERSEY DEPARTMENT OF CORRECTIONS

NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-4845-17T3

RAPHAEL RODRIGUEZ, as
Administrator Ad Prosequendum
of the Estate of HECTOR
RODRIGUEZ, deceased,

          Plaintiff-Appellant,

v.

NEW JERSEY DEPARTMENT
OF CORRECTIONS,

          Defendant,

and

UNIVERSITY OF MEDICINE AND
DENTISTRY OF NEW JERSEY and
UNIVERSITY BEHAVIORAL
HEALTHCARE-UNIVERSITY
CORRECTIONAL HEALTHCARE,

     Defendants-Respondents.
__________________________________

                    Submitted October 10, 2019 - Decided December 4, 2019

                    Before Judges Koblitz and Gooden Brown.
            On appeal from the Superior Court of New Jersey, Law
            Division, Cumberland County, Docket No. L-0568-16.

            Franzblau Dratch, PC, attorneys for appellant (Brian
            Michael Dratch, on the brief).

            Drake Law Firm, PC, attorneys for respondents (David
            Robert Drake, on the brief).

PER CURIAM

      Plaintiff Raphael Rodriguez, as the administrator of the estate of Hector

Rodriguez, his son, appeals from the May 11 and 16, 2018 Law Division orders,

respectively granting summary judgment to defendants University of Medicine

and Dentistry of New Jersey and University Behavioral Healthcare - University

Correctional Healthcare (UMDNJ-UCH), and New Jersey Department of

Corrections (NJDOC), and dismissing his complaint with prejudice.          The

complaint arose out of the medical care provided to Hector1 while he was

incarcerated at South Woods State Prison "confined to a wheelchair" and "prone

to pressure or decubitus ulcers."   Hector filed a personal injury complaint

alleging negligence on the part of UMDNJ-UCH, the entity contracted by

NJDOC to provide medical care to state prisoners. Following Hector's death on

August 26, 2015, by consent order, Raphael filed a new complaint adding a


1
 We refer to the Rodriguezes by their first names to avoid any confusion caused
by their common surname and intend no disrespect.
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wrongful death claim, which he later voluntarily dismissed, leaving only the

survival action. In granting summary judgment, the trial court found as a matter

of law that plaintiff's expert who was a registered nurse was not qualified to

render a medical opinion on causation. We reverse and remand for trial on the

survival claim.

      The facts, when viewed most favorably to plaintiff, Brill v. Guardian Life

Ins. Co. of Am.,  142 N.J. 520, 523 (1995), reveal that when Hector was

incarcerated in 2005, he was a partial quadriplegic as a result of a gunshot

wound. He had partial use of his upper extremities and could self-propel a

wheelchair.   Since October 2007, Hector suffered from stage two scrotal

ulceration. When his condition worsened, on May 27, 2008, he was admitted to

South Jersey Health Care for treatment. Doctors explained to Hector, who had

a history of non-compliance with treatment regimens, that he could not stay in

his wheelchair all day, but had to offload the pressure to his wounds by

repositioning himself frequently to prevent further skin breakdown.

      On July 10, 2008, Hector was transferred to the extended care unit at South

Woods State Prison (South Woods) where he received daily wound treatment

with topical therapy for his ulcerated scrotal area.     The nursing staff also

provided Hector with an air mattress and heel protectors and, like the doctors at


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South Jersey Health Care, told him to reposition himself every two hours while

in bed and every fifteen minutes while in his wheelchair. On July 13, 2008, the

nursing staff discovered and treated additional lesions on Hector's sacral and

inner thigh area. Hector also developed pressure ulcers on his right and left feet.

By October 2008, the ulcers on Hector's sacral area worsened, necessitating

surgical debridement.     Hector was again instructed to reposition himself

frequently, but did not comply.

      On November 18, 2008, Hector was admitted to St. Francis Medical

Center (St. Francis) to undergo a diverting colostomy. He also underwent

debridement of his necrotic sacral pressure ulcer. While at St. Francis, Hector

again refused care on numerous occasions. Once he returned to South Woods,

nursing staff documented that Hector refused care and repositioning ten times

in December 2008. By 2009, Hector continued to refuse care on a regular basis,

and his ulcers worsened. Despite staff regularly assessing Hector's skin and

attempting to provide treatment, between October 2009 and July 2011, Hector

was admitted to St. Francis several times for surgical debridement and other

treatment related and unrelated to his ulcers.      In 2010 and 2011, Hector's

cooperation with his treatment improved.




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      On September 26, 2011, Hector filed the personal injury complaint that is

the subject of this appeal against NJDOC and UMDNJ-UCH for failure to

provide him "with adequate medical care" at South Woods.               He alleged

defendants "breached their duty" to ensure he "[did] not receive pressure or

decubitus ulcers," which were "direct[ly] and proximate[ly] cause[d]" by

"defendants' carelessness, recklessness, and negligence in failing to properly

treat [him.]" To support his claim, Hector filed an affidavit of merit authored

by Bonnie Tadrick, a registered nurse certified in wound care, opining that the

treatment provided to Hector by the nursing staff at South Woods "fell outside

acceptable professional standards and treatment practices."           Hector also

provided a September 4, 2013 report, and an October 2, 2014 supplemental

report prepared by Tadrick, who was deposed on December 11, 2014.

      In her report, Tadrick opined that by directing Hector to reposition

himself, "[t]he [South Woods nursing] staff . . . neglect[ed] their duty to [Hector]

by shifting the responsibility of pressure offloading to him, when he clearly

[was] incapable of doing so." She asserted "[Hector] was not non-compliant[,]"

as documented by staff but "was simply physically unable to effectively move

his body without human assistance." She noted Hector's past medical history

included "atrophy of his left hand," and "a weak grip" in his right hand. He "was


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completely dependent upon the South Woods . . . staff for all [activities of daily

living,] including bathing, hygiene, dressing, transfers, . . . and . . . mobility."

He also reportedly suffered from "[b]ipolar [d]isorder." Tadrick concluded that

the nursing staff's "failure to develop and implement and provide an ongoing

individualized plan of care . . . that met [Hector's] needs for turning and

repositioning in bed, pressure redistribution in the wheelchair, and limited

seating time was a proximate cause in [Hector] developing severe . . . pressure

ulcers."

      To counter Tadrick's opinion, UMDNJ-UCH submitted an April 14, 2014

report prepared by Dr. Matthew Dougherty, a vascular surgeon, who was also

deposed. In his report, Dougherty opined that Hector's "non-compliance with

offloading and his care in general . . . was the major contributor to the

development of his decubitus lesions."          Contrary to Tadrick's opinion,

Dougherty described the nursing staff's care of Hector as "nothing short of

exemplary." Dougherty rejected Tadrick's "suggest[ion] that nurses should have

forcibly repositioned [Hector] on those occasions when he refused to be helped,"

explaining that such actions "would [have] amount[ed] to battery, from a legal

perspective." Dougherty further noted that "[p]atients with spinal cord injury

are particularly susceptible" to decubitus ulcers "not only because they lack the


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ability to perceive or respond to excess pressure, but because muscle atrophy

and chronic local ischemia from pressure results in a lack of adequate natural

tissue padding." He explained "even with the best of care[,]" skin "breakdown

eventually occurs, and is extremely difficult to heal."

      In her deposition testimony, Tadrick acknowledged that pressure ulcers

can occur in the absence of a deviation from the standard of care. She also

agreed that paraplegics and quadriplegics "are a[t] greater risk for pressure ulcer

development," but disagreed that ulcers would develop "even with the best of

care." She testified that while she did not review Hector's past medical records,

"[her] opinions were based . . . [on her] review [of] the records from when he

was incarcerated at South Woods." She maintained that "the nursing staff did

not consistently . . . implement a really comprehensive and aggressive plan of

care" and "there was no[] . . . aggressive approach to . . . gaining compliance"

when "[Hector] would be[come] resistant to care[.]"

      On March 29, 2018, UMDNJ-UCH moved for summary judgment,

asserting that a medical diagnosis was required to exclude other causes for the

ulcers, and Tadrick was unqualified to provide such a diagnosis.           At oral

argument, UMDNJ-UCH posited "the crux of the issue" was whether "an actual

medical diagnosis [was required] to make the link between liability and


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damages."    Plaintiff countered that no medical diagnosis was required to

establish a prima facie case of medical negligence because Tadrick determined

Hector's ulcers were caused by defendants' failure to adequately care for Hector.

According to plaintiff, it was up to the jury to decide whether the ulcers were

caused by different factors.

      On May 11, 2018, in an oral opinion, the judge granted UMDNJ-UCH's

motion. The judge agreed with UMDNJ-UCH that it was not enough that

Tadrick was "competent to give an opinion that improper positioning of a patient

leads to pressure ulcers." The judge explained that because Hector "was a

paraplegic" with "a complicated medical history," and Tadrick "conceded . . .

there can be various causes of a pressure ulcer in an individual with

paraplegia[,]" plaintiff was required "to offer a witness who [was] competent to

give medical testimony about the cause of the ulcers in this particular [patient.]"

Specifically, according to the judge, "the opinion [on] causation in this case

require[d] an expert" who could opine that "based on this patient's medical

history[,] . . . the cause of [his] ulcers was either the failure to position or some

other cause."    The judge queried "if the expert . . . does [not] have the

competency to give an opinion that it was not the paraplegia that caused the




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injury, how can she be qualified [to opine] that it was the failure to position the

patient that was the cause of the injury?"

      Upon concluding Tadrick did not have the qualifications to give "a

medical opinion . . . to allow the jury to determine the medical cause of

[Hector's] injuries[,]" the judge determined plaintiff had no "causation opinion,"

which was required "to prove . . . medical malpractice," and UMDNJ-UCH was

thus entitled to summary judgment "as a matter of law." In light of that decision,

the judge granted NJDOC's unopposed application for dismissal with prejudice.

The judge entered memorializing orders, and this appeal followed.

      On appeal, plaintiff renews his contention that Tadrick "is qualified to

opine as to causation regarding [Hector's] decubitus ulcers" and the motion

judge erred in ruling otherwise. We agree.

      We review a grant of summary judgment applying the same standard used

by the trial court. Steinberg v. Sahara Sam's Oasis, LLC,  226 N.J. 344, 366

(2016). That standard is well-settled.

            [I]f the evidence of record—the pleadings, depositions,
            answers to interrogatories, and affidavits—"together
            with all legitimate inferences therefrom favoring the
            non-moving party, would require submission of the
            issue to the trier of fact," then the trial court must deny
            the motion. On the other hand, when no genuine issue
            of material fact is at issue and the moving party is


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            entitled to a judgment as a matter of law, summary
            judgment must be granted.

            [Ibid. (quoting R. 4:46-2(c)).]

See Brill,  142 N.J. at 540. Where, as here, we primarily review the trial court's

legal conclusion, we accord no deference to the trial court's "interpretation of

the law and the legal consequences that flow from established facts" and apply

a de novo standard of review. Manalapan Realty, L.P. v. Twp. Comm. of

Manalapan,  140 N.J. 366, 378 (1995).

      To establish a prima facie case of negligence in a medical-malpractice

action, "a plaintiff must present expert testimony establishing (1) the applicable

standard of care; (2) a deviation from that standard of care; and (3) that the

deviation proximately caused the injury." Nicholas v. Mynster,  213 N.J. 463,

478 (2013) (quoting Gardner v. Pawliw,  150 N.J. 359, 375 (1997)).             The

traditional burden of proof for establishing proximate cause requires "proof by

a preponderance of the evidence that the injury complained of probably would

not have occurred 'but for' the negligent conduct of the defendant." Gardner,

 150 N.J. at 377.     However, when the plaintiff suffers from a preexisting

condition, as here, the burden of proof to establish causation is lessened.

"[B]ecause the preexistent condition itself serves as a 'but-for' cause of the

ultimate injury[,]" ibid., in those cases, a more flexible standard requires a

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plaintiff to show that "as a result of a defendant's negligence, [the plaintiff]

experienced an increased risk of harm from that condition, and that . . . increased

risk of harm was a substantial factor in causing the injury ultimately sustained."

Id. at 375.

      Turning to the expert testimony at issue here, pertinent to this appeal,

 N.J.S.A. 45:11-23(b) provides in part:

              The practice of nursing as a registered professional
              nurse is defined as diagnosing and treating human
              responses to actual or potential physical and emotional
              health problems, through such services as casefinding,
              health teaching, health counseling, and provision of
              care supportive to or restorative of life and well-being,
              and executing medical regimens as prescribed by a
              licensed or otherwise legally authorized physician or
              dentist. Diagnosing in the context of nursing practice
              means the identification of and discrimination between
              physical and psychosocial signs and symptoms
              essential to effective execution and management of the
              nursing regimen within the scope of practice of the
              registered professional nurse.          Such diagnostic
              privilege is distinct from a medical diagnosis. Treating
              means selection and performance of those therapeutic
              measures essential to the effective management and
              execution of the nursing regimen. Human responses
              means those signs, symptoms, and processes which
              denote the individual's health need or reaction to an
              actual or potential health problem.

      Interpreting  N.J.S.A. 45:11-23(b), in State v. One Marlin Rifle,  319 N.J.

Super. 359 (App. Div. 1999), we held that a wife, who was a certified clinical


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nurse specialist and an advanced practice nurse in mental health and psychiatric

nursing, was not qualified to render an expert opinion "with respect to a medical

diagnosis of her former husband's mental condition." Id. at 368. The former

husband opposed the State's weapons forfeiture action following the dismissal

of a domestic violence complaint that the wife had filed against him on the

ground that he did not "'pose a threat to public health, safety, or welfare' pursuant

to N.J.S.A. 2C:58-3(c)(5)." One Marlin Rifle,  319 N.J. Super. at 362. We

interpreted  N.J.S.A. 45:11-23(b) to permit registered nurses to provide "nursing

diagnosis," as opposed to "medical diagnosis." One Marlin Rifle,  319 N.J.

Super. at 369. We noted "[a] nursing diagnosis identifies signs and symptoms

only to the extent necessary to carry out the nursing regimen rather than making

final conclusions about the identity and cause of the underlying disease." Ibid.

We concluded that "[g]iven the statute's prohibition against a nurse providing

such a diagnosis, the trial court's acceptance of such testimony was inappropriate

even aside from issues of the interest and potential bias of the witness." Id. at

369-70.

      We do not interpret  N.J.S.A. 45:11-23(b) so narrowly as to preclude, in

appropriate cases, a nursing opinion on causation, and we conclude that One

Marlin Rifle does not mandate a contrary result. The specific deviations Tadrick


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addressed in her September 4, 2013 report directly related to the "provision of

care supportive to or restorative of life and well-being" and the execution of

"medical regimens as prescribed by a licensed or otherwise legally authorized

physician . . . ."  N.J.S.A. 45:11-23(b). Specifically, Tadrick opined:

            [Hector's] risk of skin breakdown was well recognized
            by the South Woods nursing staff and they were
            responsible to develop a plan of care to address his
            needs and to mitigate risks for pressure ulcer
            development. . . .

                  ....

            In the course of provision of care to [Hector], the
            licensed professional nursing staff failed to utilize the
            nursing process as evidenced by a lack of care planning,
            implementation of appropriate interventions and
            evaluation of those interventions with revisions to the
            care plan as needed in regards to pressure ulcer
            prevention and wound healing.

                  ....

            . . . [T]he nursing staff's recognition of [Hector's] risk
            for skin breakdown and their failure to develop and
            implement and provide an ongoing individualized plan
            of care with expected outcomes that met [Hector's]
            needs . . . was a proximate cause in [Hector] developing
            severe . . . pressure ulcers. Without developing an
            implementation pathway or timeline within the plan
            with an ongoing criterion based evaluation of the
            outcomes and effectiveness of the planned
            interventions for [Hector], the standard of care was not
            upheld by the South Woods nursing staff leaving a
            completely inconsistent approach to his care.

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            After developing the severe pressure ulcers, [Hector]
            had to be hospitalized several times for surgical wound
            debrid[e]ments,      which     were      painful    post
            operatively. . . . The pressure ulcers were a great
            source of pain and suffering for [Hector] and became
            life threatening in 2011 when he was hospitalized for
            Septicemia.

      Tadrick's opinion falls squarely within the diagnostic privilege of the

nursing practice contemplated in  N.J.S.A. 45:11-23(b), does not require a

medical diagnosis, and provides the requisite causation opinion to prove a

medical malpractice case. There is no dispute that Hector's care required turning

and repositioning to offload the pressure to his wounds and prevent further skin

breakdown. Indeed, Hector's day-to-day care in that regard was undertaken and

provided by the South Woods' nursing staff, not physicians. Tadrick's opinion

addressed the South Woods' nursing staff's failure to select and perform "those

therapeutic measures essential to the effective management and execution of the

nursing regimen."  N.J.S.A. 45:11-23(b). Thus, we are satisfied  N.J.S.A. 45:11-

23(b) does not prohibit Tadrick's testimony on the issue of causation under the

particular facts of this case, and a medical diagnosis is not required.

      Because of Hector's preexisting condition, plaintiff's burden to prove

causation is lessened. Plaintiff need only show that defendants' negligence

increased Hector's risk of harm and was a substantial factor in causing the injury


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ultimately sustained, rather than that defendants' negligence was the "but for"

cause of Hector's ulcers. Gardner,  150 N.J. at 375-77. Moreover, "for purposes

of awarding compensatory damages based on the increased risk of future harm

caused by the tortious conduct of others, we need not insist on a quantification

of the risk of future harm with mathematical exactitude." Id. at 388 (quoting

Scafidi v. Seiler,  119 N.J. 93, 118 (1990) (Handler, J., concurring)).

      Reversed and remanded. We do not retain jurisdiction.




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