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Palmer v. Fiume

August 13, 2009


On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-6999-03.

Per curiam.


Argued March 31, 2009

Before Judges Wefing, Parker and Yannotti.

Plaintiff Marvin Palmer appeals from orders entered at trial dismissing with prejudice his claims against defendants Dr. Alfred M. Fiume ("Fiume") and MS, Inc. ("CMS"). For the reasons that follow, we affirm in part, reverse in part and remand for a new trial.


We briefly summarize the relevant facts. In 1995, CMS submitted a bid and was thereafter awarded a contract with the State of New Jersey to provide the New Jersey Department of Corrections ("NJDOC") medical, mental and dental services for inmates in the State's correctional system. CMS provided these services through a managed care structure that included a primary hospital agreement with St. Francis Medical Center ("St. Francis"), a network of specialty care physicians and a primary care provider base located at the State's major facilities.

In April 1996, Correctional Dental Associates ("CDA") entered into an agreement with CMS to provide dental care to the State's inmates. Fiume, a licensed dentist who had been working for the NJDOC while maintaining a part-time practice in Jersey City, became a CDA employee. In 2001, Fiume worked several days a week at East Jersey State Prison ("East Jersey") in Woodbridge.

In 2000, plaintiff was convicted of robbery and sentenced to a term of incarceration in state prison. On February 27, 2001, plaintiff was taken to the NJDOC's Central Reception and Assignment Facility ("CRAF") in Trenton for medical and dental evaluations prior to his placement in a facility within the state prison system.

Dr. Joseph E. Prunetti ("Prunetti") performed plaintiff's initial dental examination. An assistant took a "panorex" or "full mouth" X-ray. Prunetti's intake form indicated that plaintiff had no dental problems that required immediate attention; however, Prunetti recommended a treatment plan for certain teeth. Prunetti's plan did not state that tooth number one required treatment, although Prunetti later testified at a deposition that he told his assistant the tooth had to be extracted.

The NJDOC required inmates at the CRAF to sign a general consent form for medical, dental or surgical treatment. Plaintiff signed the form. It stated that plaintiff had the right to receive necessary health care services regardless of his ability to pay, and that Prunetti had recommended sequential dental treatment, as indicated on the chart. Prunetti also signed the form, indicating that plaintiff read the form, and that Prunetti explained the form to plaintiff.

In March 2001, plaintiff was assigned to East Jersey. At the time, CMS employed David Flynn ("Flynn") as a health care administrator. Flynn oversaw staffing and medical-related activities for CMS. CMS also employed Dr. Elmira Kapchits ("Kapchits") as the site medical director at East Jersey. Kapchits supervised the staff physicians and nursing staff and responded to requests for treatment.

In July 2001, plaintiff chipped his front tooth while playing basketball. On August 6, 2001, plaintiff saw Fiume at East Jersey's dental clinic. Fiume determined that the chipped tooth was "just cosmetic" but another tooth required extraction, specifically the upper left, third molar or wisdom tooth, also known as tooth number sixteen.

Fiume did not take X-rays but believed that the tooth was severely decayed and nerve exposure could have developed after plaintiff's intake exam. Fiume did not obtain plaintiff's written consent for the procedure; rather, he relied upon the consent to treatment that plaintiff signed in February 2001 while at the CRAF. Fiume administered anesthesia and removed the tooth.

Plaintiff said that Fiume did not advise him of the possible complications or risks before extracting the tooth. Fiume stated, however, that before performing an extraction, it was his "common practice" to advise patients of possible complications including pain, infection, swelling and bleeding. Fiume also stated that, when extracting third molars, he advised patients of the "remote possibility" of creating a hole between the mouth and the sinus, known as an "oral antral communication" or "fistula."*fn2

Plaintiff saw Fiume again on September 7, 2001, for a filling in tooth number eighteen. Relying on his clinical observations and plaintiff's panorex, Fiume recommended the extraction of another wisdom tooth, specifically tooth number one, based on the presence of a large caries lesion or tooth decay. The tooth was not, however, extracted at that time. On September 16, 2001, plaintiff submitted another request for treatment for an ache in his front, chipped tooth.

Fiume saw plaintiff on September 25, 2001. Fiume's notes indicate that plaintiff had complained of pain in the upper right area of his mouth. Fiume did not take any other X-rays. He did not believe any critical treatment was required for the chipped tooth but, based on his examination and review of the panorex, recommended extraction of tooth number one. Plaintiff agreed to the procedure and Fiume extracted the tooth.

Plaintiff testified that Fiume did not inform him of the risks associated with the extraction. Fiume testified that, based on his common practice, he would have advised plaintiff of the possible risks of sinus exposure, pain and infection. Fiume did not have plaintiff sign a written consent form. As with the extraction of tooth sixteen, Fiume relied upon the general consent form that plaintiff signed in February 2001 and plaintiffs' verbal consent.

On October 2, 2001, plaintiff sought follow-up medical treatment, explaining that he had a wisdom tooth pulled on September 25, 2001. In his request for treatment, plaintiff wrote that, when he blew his nose, "a bunch of puss [sic] came flying out of [his] mouth." He also wrote that there was blood in his spit and his face was starting to swell.

Fiume saw plaintiff on October 9, 2001, and treated him for pain, pus and slight swelling in the upper right area of the mouth. Fiume made a diagnosis of an infection secondary to ostitis, which he described as an infection of the bone. Fiume prescribed Motrin and penicillin.

On October 19, 2001, plaintiff again sought follow-up treatment, stating on the request form that treatment was needed because of "vomit with blood in it." Plaintiff also wrote that there was blood in his spit and that the hole where his tooth had been extracted had not closed. Fiume examined plaintiff on October 22, 2001, and wrote in his chart that plaintiff still had a discharge and probable sinus exposure in the area of the extraction. Fiume changed plaintiff's medication and gave plaintiff a decongestant.

Plaintiff returned to Fiume for treatment on October 29, 2001. Fiume noted that the extraction site was healing well with no discharge. He also noted that plaintiff had reported no pain. Three days later, on November 1, 2001, plaintiff submitted another request for dental treatment, complaining of swelling in the face, pressure in the nasal passage, pus running from the extraction site and bleeding.

Fiume re-examined plaintiff the following day. Plaintiff's chart indicated that an "[o]ral antral communication with infection persists." Fiume saw plaintiff again on November 6, 2001. He noted a discharge from the extraction site. Fiume asked plaintiff to return in six days so that he could evaluate whether plaintiff should be referred to an oral surgeon. Fiume examined plaintiff again on November 14, 2001, and prepared a referral form, which CMS approved.

Plaintiff was scheduled to see an oral surgeon on December 13, 2001, but the surgeon cancelled the appointment. Fiume treated plaintiff for drainage and swelling problems on December 14, 2001. The surgeon saw plaintiff on December 20, 2001, and he ordered a CT scan, which was performed at St. Francis on January 22, 2002.

The CT scan revealed that plaintiff had a large lesion on the maxillary sinuses, along with a cyst and polyps. Fiume reviewed the scan and wrote a referral for another consult, which was approved. After this last referral, Fiume had no further involvement with plaintiff's care.

On April 2, 2002, a "Caldwell Luc" procedure was performed at St. Francis. The purpose of this procedure was to make or enlarge an existing opening from the cheek sinus into the nose to provide drainage for debris and address the secondary infection. A pathology report dated April 10, 2002, stated that plaintiff had "severe acute and chronic sinusitis, with mucosal ulceration."

Thereafter, plaintiff saw three dentists at the prison who reportedly told him that there was nothing they could do for him and he had to see a surgeon. On August 22, 2002, CMS approved a follow-up visit with an ear, nose and throat ("ENT") specialist. On September 17, 2002, plaintiff saw the specialist, who noted the presence of the fistula and chronic sinusitis. Another CT scan was taken on October 3, 2002, and thereafter, CMS approved another consult with an oral surgeon.

On January 30, 2003, plaintiff underwent a buccal flap procedure to close the fistula. This procedure involved the raising of some healthy mucous membranes on both sides of the fistula and sewing them over the opening. The procedure was unsuccessful. In February 2003, CMS approved follow-up care for the fistula and a consult with an oral surgeon. Additional follow-up care was approved in March 2003.

On April 4, 2003, another CT scan was taken at St. Francis. The scan indicated that there was evidence of sinus inflammation on both sides. In June 2003, plaintiff had an ENT evaluation, which revealed that he still had pus draining from his mouth and nose, swelling in his right check, with pain, headaches and the inability to lie flat. Plaintiff was diagnosed with a persistent oral antral fistula.

On September 30, 2003, plaintiff was seen by an ENT specialist at the University of Medicine and Dentistry of New Jersey ("UMDNJ"), who recommended a follow-up in two weeks. CMS ordered the follow-up appointment, which was approved by CMS's group medical director. Plaintiff evidently saw Dr. Rivera ("Rivera") on October 16, 2003. According to Rivera's handwritten notes on the bottom of the referral form, Rivera recommended a CT scan, extensive surgeries for the fistula, including a bone graft, and treatment for plaintiff's sinus infection.

In December 2003, another buccal flap procedure was performed to close the fistula. An adjacent tooth also was extracted to expose more healthy tissue so that it could be used in the closure. The procedure was unsuccessful. In early June 2004, an ENT specialist at UMDNJ ...

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