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Bibby v. Correctional Medical Services

August 23, 2006

SAMUEL BIBBY, PLAINTIFF,
v.
CORRECTIONAL MEDICAL SERVICES, INC., NICOLLETE A. TURNER, M.D., AND MICHELLE MILLER, N.P. DEFENDANTS.



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

HON. JEROME B. SIMANDLE

OPINION

This matter is before the Court upon the motion by Defendants Correctional Medical Services, Inc. ("CMS"), Nicolette A. Turner, M.D. and Michelle Miller, N.P. for partial summary judgment. Defendants argue that Plaintiff's failure to submit a timely Affidavit of Merit pursuant to N.J.S.A. 2A:53A-27 is fatal to his common law claims for negligence and medical malpractice.*fn1 Because Plaintiff has substantially complied with the requirements of the Affidavit of Merit Statute, however, the Court will deny the motion.

I. BACKGROUND

The facts bearing upon this motion are taken from the allegations in Plaintiff's well-pleaded complaint, which the Court will accept as true for present purposes.

In January, 2001, while incarcerated at Northern State Prison in Newark, New Jersey, Plaintiff Samuel Bibby was advised by Defendant Nicollette Turner, M.D. that he had tested positive for Hepatitis C ("HVC"), a potentially fatal virus that causes liver disease, including cirrhosis of the liver and liver cancer.*fn2 (Am. Compl. ¶¶ 1, 8, 9, 12.) Notwithstanding that diagnosis, however, Plaintiff was not treated for HVC until June, 2003, more than two years after he learned he was HVC positive. (Id. ¶ 13.)

Moreover, according to the complaint Plaintiff was not properly treated once treatment finally commenced. Specifically, Plaintiff was not provided with the medically required 48 week regimen of interferon treatment, nor did Plaintiff receive additional treatment once the interferon regimen concluded. (Id. ¶¶ 13, 14.)

On November 18, 2002, Plaintiff submitted a complaint pro se which was filed on April 2, 2003. On January 26, 2005, an Order was entered appointing pro bono counsel for Plaintiff. On May 25, 2005, Plaintiff filed an Amended Complaint under 42 U.S.C. § 1983, as well as state law, alleging that Defendants deprived him of "appropriate testing, monitoring and treatment for HCV, causing him to suffer irreversible progression of the HCV related disease." (Id. ¶ 20.) Defendants each answered the Amended Complaint on August 2, 2005.

Defendants subsequently filed the instant motion for partial summary judgment arguing that Plaintiff failed to timely submit the requisite Affidavit of Merit under N.J.S.A. 2A:53A-27.

II. DISCUSSION

New Jersey's Affidavit of Merit Statute provides, in pertinent part:

In any action for damages for personal injuries, wrongful death or property damage resulting from an alleged act of malpractice or negligence by a licensed person in his profession or occupation, the plaintiff shall, within 60 days following the date of filing of the answer to the complaint by the defendant, provide each defendant with an affidavit of an appropriate licensed person that there exists a reasonable probability that the care, skill or knowledge exercised or exhibited in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional or occupational standards or treatment practices. The court may grant no more than one additional period, not to exceed 60 days, to file the affidavit pursuant to this section, upon a finding of good cause.

N.J.S.A. 2A:53A-27.

"The Legislature enacted the statute with the laudatory purpose of weeding out frivolous lawsuits early in the process." Ferreira v. Rancocas Orthopedic Assocs., 178 N.J. 144, 146 (2003). The statute additionally serves the dual purpose of "ensuring that plaintiffs with meritorious claims will have their day in court." Id. at 151 (quoting Hubbard v. Reed, 168 N.J. 387, 395 (2001)). The New Jersey Affidavit of Merit Statute applies to medical malpractice claims asserted in federal court pursuant to diversity jurisdiction, Chamberlain v. Giampapa, 210 F.3d 154, 157 (3d Cir. 2000), and there is no reason why this requirement would not ...


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