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Bethea v. Correctional Medical Services

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


April 30, 2010

ELI BETHEA, III, PLAINTIFF-APPELLANT,
v.
CORRECTIONAL MEDICAL SERVICES, DR. JOHN GODINSKY, NEW JERSEY DEPARTMENT OF CORRECTIONS, KAMAL PATEL, M.D., DEFENDANTS-RESPONDENTS, AND ST. FRANCIS MEDICAL CENTER, DEFENDANT.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-2442-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued March 8, 2010

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 and a possible need for additional surgery in the future.

The motion judge premised his grant of summary judgment on his conclusion that the doctrine of common knowledge was simply inapplicable. He characterized the issues as complex, because each doctor believed the other deviated from a standard of care. For that reason, he determined that expert testimony was necessary.

"A trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995) (citations omitted). A reviewing court is "not bound by a trial judge's 'construction of legal principles,'" and considers such issues as if it is the court of first instance. Smerling v. Harrah's Entertainment, Inc., 389 N.J. Super. 181, 186-87 (App. Div. 2006) (quoting Lombardo v. Hoag, 269 N.J. Super. 36, 47 (App. Div. 1993), certif. denied, 135 N.J. 469 (1994)).

In Chin v. St. Barnabas Medical Center, 160 N.J. 454 (1999), the Court began its analysis by reiterating the general rule in medical malpractice cases: deviation from the standard of care must be established by expert testimony. Id. at 469. The Court then went on to consider the doctrine of common knowledge, however, which in the rare case, "permits exception to the general rule; when it is applied, expert testimony is not needed to establish the applicable standard of care." Ibid. (citing Schueler v. Strelinger, 43 N.J. 330, 345 (1964)). The doctrine of common knowledge results in the matter being tried "essentially no different[ly] from 'an ordinary negligence case.'" Ibid. (quoting Rosenberg ex rel. Rosenberg v. Cahill, 99 N.J. 318, 325 (1985)). The test is whether the "'carelessness of the defendant is readily apparent to anyone of average intelligence and ordinary experience'"; in other words, whether the issue of negligence is unrelated to technical matters beyond the ken of the average juror. Id. at 469-70 (quoting Rosenberg, supra, 99 N.J. at 325).

After our independent review of the record and consideration of the submissions and oral arguments of counsel, we believe that the grant of summary judgment was improvident as a matter of law. The legal question posed by these circumstances was well within the ken of a person "'of average intelligence and ordinary experience.'" Id. at 469 (quoting Rosenberg, supra, 99 N.J. at 325). See Hubbard ex rel. Hubbard v. Reed, 168 N.J. 387, 396-97 (2001) (pulling the wrong tooth is a matter of common knowledge exempt from the necessity of expert testimony); Palanque v. Lambert-Woolley, 168 N.J. 398, 406-07 (2001) (doctrine of common knowledge applicable where doctor misread laboratory results resulting in patient undergoing unnecessary surgery).

Godinsky claims Patel erred by not providing plaintiff with medical treatment when he had been sent there for that express purpose. Patel maintains Godinsky erred by not providing plaintiff with an orthopedic consultation as directed in the emergency room note accompanying plaintiff when he was returned to the prison. The determination of who, if anyone, bears responsibility for plaintiff's delayed treatment is one a jury can readily make applying principles of ordinary negligence. Therefore, the doctrine of common knowledge absolves plaintiff from the obligation to produce a medical expert, and we reverse the award of summary judgment as to the first four counts of the complaint.

We concur, however, as to the dismissal of the fifth count of plaintiff's complaint, alleging a violation of the CRA and the State Constitution. An order or judgment may be affirmed on appeal if it is correct, even though the trial judge relied on an incorrect analysis. Aquilio v. Continental Ins., 310 N.J. Super. 558, 561 (App. Div. 1998) (citing Isko v. Planning Bd. of Twp. of Livingston, 51 N.J. 162, 175 (1968)). In this case, in order for plaintiff to recover pursuant to the CRA, he would have to establish that the State facility "showed a 'deliberate indifference to... serious medical needs'" in providing him with the medical care related to his injury. Seeward v. Integrity, Inc., 357 N.J. Super. 474, 485 (App. Div. 2003) (quoting Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 291, 50 L.Ed. 2d 251, 260 (1976)). A serious medical need is defined as a condition which has either been diagnosed as requiring treatment or one obviously requiring treatment. Ibid. The trial court ruled incorrectly that plaintiff's civil rights claim could not be brought against the NJDOC because it was a State agency. Our courts recognize a breach of the government's duty to provide medical care to prisoners may be so egregious as to violate a prisoner's civil and constitutional rights. Ibid.

There is no doubt that plaintiff's injury was one that even a lay person would know required a doctor's attention. But "'accidental or inadvertent failure to provide adequate medical care to a prisoner' does not," establish the deliberate indifference necessary in order for a plaintiff to be able to prevail on a claim of a violation of the CRA. Pryor v. Dep't of Corrs., 395 N.J. Super. 471, 494 (App. Div. 2007) (quoting Helling v. McKinney, 509 U.S. 25, 32, 113 S.Ct. 2475, 2480, 125 L.Ed. 2d 22, 31 (1993)). In order to prevail on this basis, plaintiff must prove scienter. Ibid. (citations omitted). Examining the facts in the best possible light for plaintiff, as we are obliged to do for purposes of this review, he has not presented circumstances that demonstrate deliberate indifference as opposed to ordinary negligence. Although we concur with the court as to the outcome, we do not agree with the analysis leading to the result.

Lastly, plaintiff also claimed that his civil rights pursuant to our State Constitution were violated by the State's failure to provide him with adequate medical care. Generally, "mere allegations of malpractice do not raise issues of constitutional dimension." Seeward, supra, 357 N.J. Super. at 485 (citing Estelle, supra, 429 U.S. at 106 n.14, 97 S.Ct. at 292 n.14, 50 L.Ed. 2d at 261 n.14). For this reason, although the judge did not explicitly discuss this as part of count five, we affirm the dismissal of the entire count as plaintiff simply does not have a viable claim.

Reversed in part; affirmed in part.

20100430

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