On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-2442-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lisa, Baxter and Alvarez.
Plaintiff Eli Bethea, III, an inmate in Northern State Prison, appeals from a December 2, 2008 award of summary judgment to defendants New Jersey Department of Corrections (NJDOC) and Kamal Patel, M.D. The motion court, despite the absence of a similar filing on behalf of defendants Correctional Medical Services (CMS) and John Godinsky, M.D., granted those defendants summary judgment as well. For the reasons that follow, we reverse except as to the fifth count of the complaint, which alleges that defendants' conduct violated plaintiff's constitutional rights and rights under the State's Civil Rights Act (CRA), N.J.S.A. 10A:6-1 to -2. Dismissal of the fifth count of the complaint is affirmed.
The complaint alleges medical negligence, breach of contract, ordinary negligence, breach of N.J.S.A. 10A:16-1.1 to -15.8 (setting forth the standard of care for inmates), violations of the CRA, and violations of the New Jersey State Constitution. The motion court dismissed the complaint due to plaintiff's failure to produce a medical expert in support of his claims. Plaintiff contends, in opposition to the motion for summary judgment, as he does on appeal, that the doctrine of common knowledge, as applied to the circumstances here, means he is not required to produce expert testimony to establish a deviation from the standard of care. The motion court granted summary judgment to all defendants, despite the fact that only Patel and NJDOC filed motions seeking the dismissal of plaintiff's complaint.
On February 15, 2005, plaintiff was assaulted by other prisoners. He was brought into the infirmary shortly after 10:00 a.m. and seen by Godinsky, the staff physician on duty, who immediately ordered an x-ray. The x-ray, completed within minutes, revealed a tibial plateau fracture which, according to Godinsky's deposition testimony, looked "like a pretty severe injury." As a result, Godinsky ordered an emergency room consult at defendant St. Francis Medical Center (SFMC), NJDOC's contract medical services provider, as in his opinion plaintiff might require surgery that same day. Because of unspecified "transport problems," plaintiff was not taken to the hospital emergency room for the orthopedic consult until approximately 9:00 p.m., and was not triaged until 10:15 p.m.
Plaintiff was examined at SFMC by Patel, the on-duty emergency room physician, who x-rayed the knee a second time.
As she stated during depositions, because Patel considered the fracture to be stable, and because of the lateness of the hour, she did not call in an orthopedic surgeon for a consult that night. Instead, Patel discharged plaintiff back to Northern State with instructions and a prescription for pain medication.
The instructions said: "The patient was asked to follow up AM. ADDITIONAL NOTES: FOLLOW UP WITH PRISON/ORTHO IN AM." At deposition, Patel said she meant that plaintiff needed to be seen by an orthopedic surgeon the following morning, February 16.
Godinsky claimed he read the note and assumed that plaintiff had been evaluated by an orthopedic surgeon at St. Francis. As he put it, he interpreted Patel's instruction to mean that "the injury [was] not urgent and can be followed up in the clinic."
After two days in the infirmary without additional care except treatment for pain, the extent of which plaintiff disputes, plaintiff was transferred to administrative segregation. He remained there for ten to eleven days until he filed a grievance with the prison administrator, who immediately returned him to the infirmary.
On March 3, 2005, plaintiff was finally seen by a prison orthopedic specialist who x-rayed plaintiff's knee and scheduled him for surgery. Plaintiff was accordingly transferred to St. Francis on March 8 and underwent surgery on March 9, 2005. He was discharged from the hospital on March 14, 2005. The operative report noted:
Due to the length of time of the delay prior to surgery and the intra-articular nature of the fracture [plaintiff] is at a high risk of problems with fixation, infection as well as long-term degenerative changes ...