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Lopez v. Correctional Medical Services

June 20, 2006

JOSE LOPEZ, PLAINTIFF,
v.
CORRECTIONAL MEDICAL SERVICES, INC., ET AL., DEFENDANTS.



The opinion of the court was delivered by: Simandle, U.S. District Judge

HON. JEROME B. SIMANDLE

OPINION

Plaintiff brought this action for damages and injunctive relief under 42 U.S.C. §§ 1983 and 1988, 42 U.S.C. § 1231 et seq., as well as New Jersey common law, alleging that Defendants knowingly exposed Plaintiff to the Hepatitis B and C Viruses and, once Plaintiff contracted those diseases, failed to advise him of the fact of his own disease and were deliberately indifferent to his serious medical condition.

Defendants Correctional Medical Services, Inc., William Andrade, James J. Neal, James Ruman, Rock Welch and Abu Ahsan (collectively "CMS Defendants") have moved for partial summary judgment, arguing that Plaintiff's failure to submit an affidavit of merit pursuant to N.J.S.A. 2A:53A-27 is fatal to his common law claims for negligence, medical malpractice, emotional distress and fraud. St. Francis Medical Center has moved to dismiss Plaintiff's Complaint in its entirety also under the Affidavit of Merit Statute, and for failing to provide answers to interrogatories.*fn1

For the following reasons, the Court will grant Defendants' motions in part.

I. BACKGROUND

The facts which bear upon the pending motions are contained in Plaintiff's well-pleaded complaint which, for present purposes, the Court must accept as true.*fn2

Plaintiff Jose Lopez has been incarcerated in New Jersey since 1983. From that time until 1996, Plaintiff was incarcerated at Trenton State Prison; from 1996 through 1998, at Southern Prison; for a portion on 1998 at Riverfront Prison; and since late 1998 at Bayside Prison. (Compl. ¶¶ 42-46.) In May 2002, Plaintiff visited the prison infirmary with a heavy nosebleed. Plaintiff was rushed to a nearby hospital but released without being given an explanation for the cause of his condition.

According to Plaintiff, on July 2, 2002 he entered a "health class" at the prison in an attempt to understand why he had been bleeding. Subsequently, Plaintiff asked Genevieve Cunningham, the health counselor conducting the class, to obtain Plaintiff's medical records. (Id. at ¶¶ 51-53.) On July 23, 2002, Ms. Cunningham provided Plaintiff with his medical records, revealing that he was HVB and HVC positive. According to his medical records, Plaintiff tested positive for HVC in 1992 and for HVB in 1985. (Id. at ¶¶ 54-56.) Plaintiff alleges that he tested positive for HVC in 1992 while being treated for seizures at St. Francis Medical Center. During this same time, tests also revealed that Plaintiff's liver enzymes were elevated, an indication of HVC. Plaintiff claims, however, that these test results were not disclosed to him until 2002. (Id. at ¶¶ 57-59.)

After Plaintiff learned of his condition in July 2002, he began receiving medication towards the end of that year. According to Plaintiff, though, the medication was not effective and, thus, his doctors discontinued his prescription around March 2003. Plaintiff alleges that he currently is not receiving any treatment for HVC or HVB. (Id. at ¶¶ 60-62.)

Plaintiff filed this Complaint, through counsel, on May 7, 2004, asserting claims for damages and injunctive relief under 42 U.S.C. §§ 1983 and 1988, 42 U.S.C. § 1231 et seq., as well as New Jersey common law.*fn3 These motions followed after prolonged discovery.

II. DISCUSSION

A. Affidavit of Merit Requirement

New Jersey's Affidavit of Merit Statute, N.J.S.A. 2A:53A-27, provides, ...


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