On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, L- 9785-99.
Before Judges Skillman, Cuff and Winkelstein.
The opinion of the court was delivered by: Winkelstein, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 7, 2003
In this appeal plaintiff George Seeward challenges multiple summary judgment orders dismissing his complaint as to all defendants. Seeward was injured in October 1997 while serving a state prison term. At the time, he was assigned to a halfway house, operated by defendant Integrity, Inc., which trades as P.O.R.T. House. *fn2 Seeward claimed the Integrity defendants, the New Jersey State Department of Corrections (DOC), wardens of various correctional institutions, Correctional Medical Services, Inc. (CMS), which provides medical services for prisoners on behalf of the State, and the medical care providers who attended to Seeward, were either negligent or violated plaintiff's constitutional rights by failing and refusing to properly treat his injuries.
The Law Division dismissed plaintiff's negligence claim against the Integrity defendants based on the Charitable Immunity Act, N.J.S.A. 2A:53-7; and dismissed plaintiff's constitutional claims against those defendants on the grounds that plaintiff failed to demonstrate defendants' "deliberate indifference" to his medical problems. The Law Division also dismissed plaintiff's claim of constitutional violations against CMS and its medical providers (the CMS defendants) based on plaintiff's failure to supply an affidavit of merit. *fn3
We affirm the dismissal of the negligence and constitutional claims against the Integrity defendants. The Integrity defendants are immunized against the negligence claims under the Charitable Immunity Act; and plaintiff failed to prove a prima facie case of deliberate indifference to his medical needs to support his constitutional claim against those defendants. However, we reverse summary judgment dismissing plaintiff's constitutional claims against the CMS defendants based on plaintiff's failure to supply an affidavit of merit. *fn4 We hold that an affidavit of merit is not required to establish a cause of action to vindicate a federal constitutional right, even if that right arises out of medical treatment furnished to an inmate by licensed medical providers.
After plaintiff was convicted of manslaughter for causing a fatal accident while driving under the influence in 1994, the court sentenced him to a term of eight years with a four-year period of parole ineligibility. On February 21, 1997, plaintiff was assigned to P.O.R.T. House, a halfway house in Newark. P.O.R.T. House is a "therapeutic community which teaches its residents a way to live, interact and function in society." The P.O.R.T. program "treats and educates pre-released prisoners . . . as a halfway stop between prison and release into society." As part of the P.O.R.T. program, "pre-released prisoners are selected for various crews to perform tasks on site." Plaintiff is a carpenter. While a resident at P.O.R.T. House, he participated in various remodeling and renovating projects. He stored his tools and lumber in a shed in the P.O.R.T. House backyard. On October 5, 1997, while sliding a plywood panel needed to complete an on-site project out of the shed, plaintiff's heel hit a lip on the door threshold and he fell. With complaints of serious back pain, one-half hour later he was taken by ambulance to St. Michael's Hospital, and later transferred to the hospital ward at East Jersey State Prison.
While hospitalized at St. Michael's, an x-ray of his low back was normal, but a CAT scan found a "focal, lateral disc herniation present at L3-4 on the right." An MRI of the lumbar spine revealed "degenerative [disc] disease at the L4-5 level with narrowing of the intervertebral disc . . . [,]" but did not disclose a "focal disc herniation." The doctor who performed the MRI opined that plaintiff had degenerative disc disease at L4-5, but no disc herniation.
Staff at St. Michael's and East Jersey State Prison treated plaintiff with pain and anti-inflammatory medication. While at St. Michael's, plaintiff was given a prescription for Voltaren, a pain reliever, and Flexeril, a muscle relaxant. The prescription was not, however, filled at St. Michael's or East Jersey State Prison.
Upon discharge from East Jersey State Prison on October 20, 1997, plaintiff returned to P.O.R.T. House at approximately 1:15 p.m. Approximately one-half hour later, at 1:45 p.m., he signed out of P.O.R.T. House, indicating that he was going to work. However, instead of going to work he went to St. Michael's to pick up his medical records. The following day, he again signed out on the premise that he was going to work, but instead he went to Edison Imaging to obtain a second opinion as to his medical condition, which confirmed a disc herniation at L4-5.
According to plaintiff, he was in "a lot of pain" when he returned to P.O.R.T. House and constantly requested medical treatment which was not provided. When asked if he complained to anyone about his medical condition before signing out for work on the day he returned to P.O.R.T. House, plaintiff said he complained to "[w]hoever was there." He also stated, however, that on both the first and second days back in P.O.R.T. House, he chose not to tell the P.O.R.T. House staff that he wanted medical treatment, because "they knew I needed medical treatment." He also said he failed to disclose his need for medical treatment because he was concerned about being transferred back to prison. He said: "When a guy gets locked up for needing medical treatment, he ain't [sic] going to tell the people that he wants the medical treatment now because he's just going to end up back in prison."
Defendant knew that to receive medical attention while at P.O.R.T. House, he needed to "drop a medical slip" to let staff know of his need. He admitted that he failed to do so, because he ...