On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, L-2528-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 6, 2009
Before Judges Fuentes and Chambers.
Plaintiff Cecil Fearon, a prisoner at the East Jersey State Prison, brought this suit against defendant Correctional Medical Services, Inc. (CMS)*fn1 and defendant doctors Paul Talbot, M.D., Arlene Tinker, M.D., Manar Hanna, M.D., Lawrence Donkor, M.D., Richard Hellander, M.D., and Ahab Gabriel, M.D.*fn2 for claims arising out of medical services provided to him while in prison. The trial court granted summary judgment to defendants. Plaintiff appeals only the dismissal of his medical negligence claims which the trial judge found barred by the statute of limitations. We reverse, concluding that the medical negligence claims were timely filed.
The essence of plaintiff's medical negligence claims is that defendants delayed in providing him with surgery on his cervical spine, causing him harm. Plaintiff, who was incarcerated in 1996, sets forth a long history of seeking treatment in prison for pain in his back, difficulty walking, and other medical problems. An MRI was conducted of his cervical spine in August 2003 and again in March 2004. On April 28, 2004, he saw defendant Dr. Talbot for a neurological evaluation. Dr. Talbot's notes of the visit set forth the following plan:
1. Have a reconsult with neurosurgery and to send MRI cervical spine along
2. Written consent obtained to go out for neck surgery if requested and approved
3. Continue current therapy.
On that day, plaintiff signed a surgical consent form stating that he consented to "neck surgery if offered" (emphasis added).
On June 22, 2004, plaintiff saw Dr. Anthony Churico, a board certified neurological surgeon, who recommended a cervical discectomy and fusion. No surgery was scheduled. About ten months later, in April 2005, plaintiff was referred back to Dr. Churico, who again recommended the surgery. The surgery still was not scheduled until January 2006, when it was finally performed. According to Dr. Churico, this delay in performing the surgery caused plaintiff's condition to worsen and compromised the results of the surgery.
On May 1, 2006, plaintiff filed a complaint in federal court, asserting civil rights violations and common law contract and tort claims, including a medical malpractice claim, based on these events. Defendants CMS and Drs. Talbot, Tinker, and Hanna, were named as defendants in that suit along with others and John Does. While defendant Drs. Donkor, Hellander, Gabriel and Melendez were not named as defendants in the first federal complaint, they appear as defendants in the second amended federal complaint filed on July 27, 2006, and medical malpractice claims were asserted against them.
On motions for summary judgment, the federal judge by order of February 2, 2007, disposed of the federal claims and dismissed without prejudice the state causes of action, including the medical malpractice claims. The federal judge noted that the state law claims could be asserted in state court, stating: "[d]ismissal would be unfair if Plaintiff's claims were time-barred in state court, however the remaining state law ...