On appeal from the Superior Court of New Jersey, Law Division, Hunterdon County, Docket No. L-580-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff and Fuentes.
Plaintiff Catherine Saoner appeals from an order granting summary judgment in favor of defendants State of New Jersey Department of Corrections (DOC) and the Edna Mahan Correctional Facility. We affirm.*fn2
Plaintiff was an inmate at defendant Edna Mahan Correctional Facility operated by defendant DOC when she injured her shoulder. She was allowed to file a late notice of claim limited to "theories relative to alleged delay in obtaining medical treatment or diagnostic studies." Plaintiff filed a complaint seeking compensatory damages suffered from a rotator cuff injury. She asserted that defendants failed to provide timely medical care and the physicians who provided care to her did so negligently.*fn3 In an amended complaint, plaintiff alleged that defendant CMS or CMS, Inc., a private entity retained by the State to provide medical care to inmates, failed to provide timely medical treatment to her.
It is undisputed that plaintiff received treatment while she was an inmate, that a physician recommended surgery and surgery was scheduled to be performed. It is also undisputed that the Parole Board notified the Cumberland County Prosecutor that plaintiff would be paroled on or about March 9, 2004, and she was transferred to a half-way house on that date. She was medically discharged from the half-way house that day or soon thereafter, and the surgery scheduled by corrections medical personnel was not performed.
The motion judge recognized the non-delegable duty owed by defendant correctional authorities to provide medical care to inmates. DelTufo v. Twp. of Old Bridge, 147 N.J. 90, 100-01 (1996); Scott-Neal ex rel. Scott v. N.J. Dep't of Corrs., 366 N.J. Super. 570, 577 (App. Div. 2004). Nevertheless, he also recognized that allegations of negligent medical care require adherence to the statutory requirement of the affidavit of merit, N.J.S.A. 2A:53A-27. Plaintiff had failed to comply with this requirement and all claims against the individual physicians and CMS were dismissed. Accordingly, plaintiff lacked the ability to establish that the State had failed to discharge its duty of care.
On appeal, plaintiff argues that the DOC action to parole plaintiff just days before scheduled surgery was arbitrary, capricious and unreasonable and breached its duty of care to plaintiff. DOC responds that this claim was not advanced in opposition to its motion for summary judgment and presents claims beyond the express terms of the order allowing presentation of a late notice of claim.
Clearly, the crux of plaintiff's complaint is the decision to grant parole prior to completion of scheduled medical services. This claim suffers from two deficiencies. First, it is a claim beyond that permitted in the order allowing a late notice of claim. Second, DOC has no authority to grant parole. The Parole Board has exclusive authority to grant or deny parole and to establish the conditions of parole. Faas v. Zink, 48 N.J. Super. 309, 312 (App. Div. 1957), aff'd, 25 N.J. 500 (1958). The duty to provide medical services applies only when an inmate is in DOC custody. St. Barnabas Med. Ctr. v. Essex County, 111 N.J. 67, 74 (1988). Once the Parole Board determined to release plaintiff, DOC had no continuing duty to provide medical services to her.