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Fearon v. Correctional Medical Services

July 30, 2010

CECIL FEARON, PLAINTIFF-APPELLANT,
v.
CORRECTIONAL MEDICAL SERVICES, INC. AND GRACE MELENDEZ, M.D., DEFENDANTS, AND PAUL TALBOT, M.D., MANAR HANNA, M.D., ARLENE TINKER, M.D., AHAB GABRIEL, M.D., LAWRENCE DONKOR, M.D. AND RICHARD HELLANDER, M.D., DEFENDANTS-RESPONDENTS.



On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-2528-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted June 23, 2010

Before Judges Chambers and Kestin.

Plaintiff, Cecil Fearon, an inmate at the East Jersey State Prison, appeals from the dismissal of his medical malpractice case against various prison doctors.*fn1 The trial court determined that plaintiff's expert reports were inadequate to support his claims and granted summary judgment to defendants. We reverse, concluding that plaintiff's claims are supported by expert reports and testimony sufficient to survive a motion for summary judgment.

I.

When reviewing a decision on a motion for summary judgment, we apply the same standard as the trial court. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). Summary judgment will be granted where no genuine issue of material fact is present and the movant is entitled to judgment as a matter of law. R. 4:46-2(c). In this analysis, we look at the competent evidence "in the light most favorable to the non-moving party" and determine whether the evidence is "sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). We need not defer to the trial court's interpretation of the law, or its determination of the legal consequences that flow from undisputed facts. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

With this standard in mind, we discern from the record the following facts. Plaintiff, while in prison, experienced various medical problems over a number of years, and on March 8, 2004, defendant, Paul Talbot, M.D., referred plaintiff to Anthony Chiurco, M.D., a board certified neurosurgeon. Dr. Chiurco saw plaintiff on April 22, 2004, and ordered an MRI. Plaintiff saw Dr. Chiurco on June 22, 2004, after the MRI results were received. The MRI showed severe spinal cord compression at C-4 and C-5. After discussing the situation with plaintiff, Dr. Chiurco planned to proceed with surgery as soon as possible, and he wrote to the prison summarizing this fact. Dr. Chiurco did not see plaintiff again until almost a year later on April 19, 2005. At that time, plaintiff had difficulty walking. Dr. Chiurco again recommended surgery for plaintiff's severe spinal cord compression and advised the prison of the necessity for this surgery.

Plaintiff was not brought to Dr. Chiurco for the surgery until January 30, 2006, more than a year and a half after it was first recommended. At that time, Dr. Chiurco performed an "anterior diskectomy and partial vertebrectomy and foraminotonies at the C4-5 and C5-6 levels with subsequent allograft fusion." On two post-operative visits, when plaintiff saw Dr. Chiurco, the prison failed to provide Dr. Chiurco with the necessary films. In a second surgery in March 2007, Dr. Chiurco performed a laminectomy, decompressing the spinal cord from C3 to C7. Plaintiff continues to experience difficulty walking, and he maintains that the defendants' negligence increased the risk of injury to his spinal cord and caused substantial pain and suffering.

Due to these circumstances, plaintiff commenced litigation. We will not review the procedural history in this case; much of that background can be found in our earlier decision in which we reversed the trial court's decision that the claims were barred by the statute of limitations. Fearon v. Corr. Med. Servs., Inc., No. A-4686-07 (App. Div. Feb. 19, 2009).

Defendants then moved for summary judgment on the basis that there was insufficient evidence of negligence against the individual defendants; that plaintiff could not prove deviation or proximate cause with Dr. Chiurco's testimony; that plaintiff could not prove injury; and that Dr. Chiurco's opinions were inadmissible as net opinions.

The trial court granted the motion, and in a decision placed on the record, concluded that plaintiff's experts, Dr. Chiurco, and Dr. Leon H. Waller, D.O., a board certified internist, did not identify a standard of care or any deviation from a standard of care, nor could they identify any injury or harm to plaintiff caused by the delay in surgery. The trial court found that their opinions were based on speculation and were mere conclusions unsupported by factual evidence in the case. Plaintiff appeals, contending that he has come forward with expert opinion sufficient to sustain his cause of action.

II.

A medical malpractice case is a negligence case against a medical professional. The claim "is based on the improper performance of a professional service that deviated from the acceptable standard of care." Zuidema v. Pedicano, 373 N.J. Super. 135, 145 (App. Div. 2004), certif. denied, 183 N.J. 215 (2005). Generally, a plaintiff alleging medical malpractice must prove with expert testimony "(1) the applicable standard of care; (2) a deviation from that standard of care; ...


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