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Wenner v. Correctional Medical Services

April 21, 2009


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


Plaintiff, William Wenner, brings this wrongful death and survival action on behalf of the estate of decedent, David Wenner ("Wenner"), alleging that Defendants were negligent and deliberately indifferent to Wenner's serious medical needs by failing to diagnosis and treat his hepatitis C ("HCV") while he was incarcerated. Before the Court is a Motion for Summary Judgment filed by Defendants Correctional Medical Services, Inc., William Andrade, James J. Neal, M.D., James Ruman, R.N., Rock Welch, Abu Ashan, M.D., Grace Nugent, M.D., and Michele F. Miller, A.N.P. (collectively, "Defendants"). For the reasons expressed below, Defendants' Motion will be granted.


Plaintiff has brought his claims pursuant to 42 U.S.C. § 1983, as well as New Jersey state law. This Court has jurisdiction over Plaintiff's federal claims under 28 U.S.C. § 1331, and supplemental jurisdiction over Plaintiff's state law claims under 28 U.S.C. § 1367.


On June 8, 1983, Wenner began serving a life sentence for first degree murder. On April 27, 1996, Defendant Correctional Medical Services, Inc. ("CMS") entered into a contract with the State of New Jersey to provide medical services to those incarcerated in New Jersey State Department of Corrections ("NJDOC") facilities. Under the terms of the 1996 contract, CMS was responsible for covering the costs of HCV treatment. In October 2002, NJDOC agreed to cover the costs of HCV treatment.

In 1997, 1998, and 2000, Wenner was given routine medical and psychological examinations, which revealed no medical problems. During these examinations, Wenner reported no medical complaints. Lab work conducted on October 26, 1997 and July 31, 1998 did reveal that Wenner had a slightly decreased platelet count. However, all tests of liver function were within normal ranges. On March 28, 2003, Wenner was tested for HIV. The results of this test were negative, and Wenner was subsequently counseled regarding this result on April 4, 2003.

On June 11, 2003, Dr. Nugent ordered an urgent gastroenterology consult after Wenner complained of abdominal pain, tarry stools, and "spitting up blood." Two days later, lab results revealed an abnormally low platelet count, as well as elevated bilirubin, low albumin, and high AST and ALT levels. These lab results indicated cirrhosis of the liver. On June 20, 2003, Dr. Nugent ordered that Wenner be administered lab tests for hepatitis B ("HBV") and HCV. On June 25, 2003, the lab tests returned positive for both HBV and HCV. Dr. Nugent reviewed these findings with Wenner on June 30, 2003. Wenner received additional counseling and education regarding HCV on July 9, 2003.

On July 10, 2003, Wenner was admitted into the infirmary after complaining of nausea, vomiting and edema. The next day, an ultrasound of Wenner's liver was completed, which indicated splenomegaly with evidence of ascites. On August 1, 2003, Wenner was evaluated by a gastroenterologist who noted chronic HCV with decompensated liver disease consistent with cirrhosis and portal hypertension. Based upon his findings, the gastroenterologist concluded that Wenner was not a candidate for any HCV treatment, but recommended that Wenner's sodium intake be monitored and that he continue with diuretics as prescribed. Weekly lab tests were done on Wenner from August through October 2003.

On October, 22, 2003, Defendant Michele F. Miller, ANP reviewed Wenner's treatment options with him. At that time, Ms. Miller discussed with Wenner the possibility of consulting Cooper Infectious Disease Clinic since Wenner desired treatment for his HCV even though it was not recommended by his gastroenterologist. Thereafter, Dr. Pola DeLaTorre of Cooper Infectious Disease Clinic also concluded that Wenner was not eligible for treatment because of his decompensated liver disease consistent with cirrhosis and portal hypertension. On November 26, 2003 and again on January 14, 2004, Dr. DeLaTorre counseled Wenner about his illness and the fact that he was not eligible for treatment. On February 4, 2004, Wenner was again seen by a consulting gastroenterologist, who recommended increasing aldactone, adding lasix and limiting sodium in his diet. Throughout 2004 and 2005 regular lab work continued to be conducted on Wenner.

On September 29, 2004, a gastroenterologist diagnosed Wenner with stage 5 liver disease. On October 13, 2005, Wenner complained of nausea, vomiting, and diarrhea. Subsequently, on November 6, 2005, Wenner was admitted to the Emergency Care Unit after he began experiencing pain in his rectum, became jaundiced, and began vomitting blood. After suffering from uncontrolled rectal bleeding on November 8, 2005, Wenner was transferred to the hospital for further care. On November 10, 2005, Wenner died at the Saint Joseph's Regional Medical Center of what was likely hepatic failure.

On July 20, 2004, Wenner filed his original complaint with this Court. Following Wenner's death, his brother and administrator ad prosequendum of his estate, Plaintiff, filed an amended complaint on November 2, 2007, alleging claims of deliberate indifference to Wenner's serious medical needs in violation of the Eighth Amendment, negligence, and medical malpractice. In the Amended Complaint, Plaintiff seeks damages under both the New Jersey Wrongful Death Act, N.J.S.A. 2A:31-1, and the New Jersey Survivors Act, N.J.S.A. 2A:15-3.


The five count Amended Complaint in this action alleges claims for violation of Section 1983 against all Defendants, negligence against Defendants CMS, Andrade, Neal, Ruman, Welch, and Ahsan (collectively, "CMS Defendants"), and medical malpractice against Defendants Nugent and Miller (collectively, "Treating Defendants"), as well as claims for violation of the ...

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