On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, L-10308-99.
Before Judges Carchman, Wecker and Weissbard.
The opinion of the court was delivered by: Wecker, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
These appeals, which we now consolidate and address in one opinion,*fn1 arise in the context of a medical malpractice action brought by fourth-party plaintiff Claus Warnebold against defendant Albert Moss, M.D. Warnebold alleges that Moss's excessive prescription of narcotic drugs proximately caused his drug addiction. The record establishes that Moss knowingly violated regulations that control the prescription of Schedule II narcotic drugs. Three significant issues are raised by these appeals.
The first issue, common to both appeals brought on behalf of Moss, is whether a physician's knowing violation of the regulations is merely evidence of professional negligence, or whether the violation establishes negligence as a matter of law. The second issue, relating only to the appeal in A-5053, is whether the physician's conduct constitutes"willful misconduct" as contemplated by the Tort Claims Act, N.J.S.A. 59:1-1 to 59:12-3, specifically N.J.S.A. 59:3-14, as a matter of law. The third issue, also relating solely to A-5053, is whether the verbal threshold established by the Act, N.J.S.A. 59:9-2d, shields the physician from liability for non-economic damages despite the non-exoneration provisions of N.J.S.A. 59:3-14.*fn2
Both appeals arise out of Warnebold's medical malpractice action against his former physician, Moss.*fn3 Warnebold alleges that Moss wrote post-dated and undated prescriptions for several Schedule II narcotic drugs, contrary to N.J.A.C. 8:65-7.5(a)*fn4 and N.J.A.C. 8:65-7.9,*fn5 regulations enacted pursuant to the New Jersey Controlled Dangerous Substances Act, N.J.S.A. 24:21-1 to -53.*fn6 Warnebold claims that Moss's conduct was a proximate cause of his addiction to narcotics and resulting damages.
After a confusing history of orders on several dispositive motions filed by various parties, the Law Division Judge granted partial summary judgment"on liability" in favor of Warnebold, holding that Moss's willful violations of the administrative regulations constituted negligence as a matter of law.*fn7 The judge also held that Moss's actions constituted willful misconduct pursuant to N.J.S.A. 59:3-14 and deprived defendant of any protection otherwise available under the Tort Claims Act, specifically, the verbal threshold set forth in N.J.S.A. 59:9-2d. We granted Moss's motions for leave to file these interlocutory appeals and now affirm in both appeals.
A brief summary of the facts will be sufficient for purposes of these appeals. Warnebold's medical history, specifically his use of addictive narcotic drugs, apparently began in 1987 with Percocet prescribed for headaches. His drug use continued through 1990, when he underwent a lumbar laminectomy, but he went through a hospital-based detoxification program in 1991. In March 1997, while Moss was employed as a physician for HIP/Pinnacle Medical Group, Warnebold first became his patient. Over the next four years, Moss repeatedly provided Warnebold with post-dated and undated prescriptions for narcotic drugs known as Percocet and Tylox, as well as for a muscle relaxant known as Soma.*fn8
Pursuant to an agreement between Moss and Warnebold that neither disputes, Moss wrote prescriptions for those drugs for Warnebold for months at a time. Moss also instructed Warnebold not to present an undated or post-dated prescription to any pharmacy. In April 1999, Moss became an employee of the University of Medicine and Dentistry of New Jersey ("UMDNJ"), a public entity, where he continued to treat and prescribe for Warnebold until some time in the first half of 2001.*fn9
Moss testified in depositions that he knew that Schedule II narcotics required a prescription, and that the drugs he prescribed for Warnebold had the potential for being addictive. Moss admitted that Warnebold was"pain medication dependent," meaning that his"complaints may exceed the usual medication schedule." Moss also knew that the law prohibited doctors from writing prescriptions to authorize refills for narcotic drugs.
He also testified that he believed that it was acceptable medical practice to write undated or post-dated prescriptions for Schedule II narcotics and that at no time did he deviate from what he presumed to be the standard of care owed to his patient.
When questioned about limits on the permissible quantity of such medications to be prescribed, and confronted with prescriptions he wrote that bore dates three or four days apart, each for quantities of 80 or 120 pills, filled at several different pharmacies, Moss answered that the amount would depend upon the patient's need and one should not prescribe"a ridiculous" amount. The record supports Warnebold's experts' descriptions of an excessive quantity and frequency of prescriptions written for him by Moss, far in excess of the quantity that would be medically supportable.
There is no dispute that Warnebold was already addicted to prescription narcotic drugs when he came to Moss, asking for prescriptions for Percocet and Tylox, a fact Warnebold's expert, Kevin E. Bell, M.D., noted in his report. Nothing in the record contradicts Dr. Bell's statement that the recommended dosage for those drugs is a maximum of two tablets, four times a day for"short term" pain relief.*fn10
The record reflects, for example, that in the seven-month period from January 24, 2001 through July 7, 2001, Moss provided Warnebold with prescriptions for 840 Tylox plus 2,920 Percocet, for a total of 3,760 units. Moss alleges that he provided prescriptions for a larger supply to accommodate Warnebold, for whom it was difficult to make frequent trips to the doctor's office. He presented no expert opinion, however, that Warnebold's condition and the amounts of Schedule II drugs he prescribed for Warnebold were within the limited exception provided by N.J.A.C. 13:35-7.6(c) (See Appendix A to this opinion). Moss actually saw Warnebold in the office only about once every three months.
The procedural history of this case is unusual. On October 28, 1999, Taglieri filed a malpractice complaint against Moss and various pharmacies for the negligent death of Mark Yatrofsky. The complaint alleged that Moss negligently prescribed narcotics which caused Yatrofsky to become addicted, and that as a result of his addiction, Yatrofsky was under the influence of a narcotic drug when he fell down a flight of stairs and sustained fatal injuries. Moss raised the defense of comparative negligence and filed a third-party complaint against Warnebold, seeking indemnification and contribution on the basis of Warnebold's alleged negligence in violating a duty to his friend, Yatrofski.*fn11
Warnebold filed an answer along with a fourth-party complaint against Moss, alleging that Moss committed professional negligence by unlawfully providing him with excessive prescriptions for narcotic drugs. Moss's answer to Warnebold's fourth-party claim included defenses under the Tort Claims Act for the period when he was employed by UMDNJ.
Moss moved for partial summary judgment dismissing Warnebold's medical malpractice claim with respect to the period after April 1, 1999 on the grounds of the Tort Claims Act verbal threshold. By cross-motion, Warnebold moved to bar the testimony of Moss's expert witness, Dr. George Mellendick, as a net opinion. The judge initially granted Moss's summary judgment motion, although he later reversed himself. The judge did not decide the cross-motion to bar Moss's expert.
Shortly after Moss's deposition, Warnebold moved for summary judgment against Moss for the period prior to April 1, 1999, when he was in private practice. On November 21, 2002 Warnebold also moved for reconsideration of the summary judgment previously entered in favor of Moss (based on the Tort Claims Act) for the period after April 1, 1999, as well as to bar Moss from offering Dr. Mellendick's testimony at trial. The motion judge initially denied Warnebold's motion for reconsideration, but on March 17, 2003, the judge heard what he described as Warnebold's"continuation... of the motion for reconsideration" of the order granting Moss summary judgment. During that argument, the judge described his reason for granting summary judgment to Warnebold against Moss for the private practice period (before April 1, 1999):
Because I - I remember I felt very strongly that the - and I'm very reluctant to grant summary judgment, but I remember clearly saying that there was a clear violation of the administrative code or something on this and that - and this - that clear violation was adequate for summary judgment to be granted.
The judge then granted partial summary judgment to Warnebold and later issued an order vacating the prior order in favor of Moss, holding that as a matter of law the doctor had breached the required standard of care in relation to Warnebold.
The court further held that because Moss's misconduct was willful, the verbal threshold provision of the Tort Claims Act did not bar Warnebold's action. On April 7, 2003, the judge issued an order granting Warnebold partial summary judgment for both periods, that is, for the periods ...