The opinion of the court was delivered by: Simandle, District Judge
Plaintiff, who was incarcerated at Riverfront State Prison in Camden County, New Jersey, filed suit alleging that medical care provided by Defendants Dr. Lutz, Dr. Youngblood, Dr. Clemons, and Ms. Vaynberg (physician assistant) violated his Eighth Amendment rights and constituted medical malpractice under state law.
The matter before the Court is a motion by Defendants for partial summary judgment [Docket Item 36]. Defendants argue that Plaintiff's failure to serve a timely affidavit of merit in support of his medical malpractice claims, as required by N.J. Stat. Ann. § 2A:53A-27 (West 2010), should result in the Court's dismissal of Plaintiff's medical malpractice claims with prejudice [Docket Item 36].
For the following reasons, the Court will grant the Defendants' motion for partial summary judgment and Plaintiff's claims for dental and medical malpractice will be dismissed with prejudice for failure to provide the affidavit of merit required by New Jersey law.
Plaintiff's troubles began with the initial partial extraction of his tooth. According to the Complaint, in January 2008 while Plaintiff was incarcerated, Plaintiff developed a problem with one of his teeth, so x-rays were taken. (Compl. ¶¶ 14, 16.)*fn1 Defendant Dr. Lutz performed a tooth extraction on March 6, 2008. (Id. ¶ 16.) Plaintiff was seen by Defendant Dr. Youngblood on March 7, 2008 because Defendant was experiencing migraines, earaches, and terrible pain in his sinus area and mouth, and because fluids were leaking from his sinus area and mouth. (Id. ¶¶ 17-20.) Dr. Youngblood took additional x-rays of Plaintiff's mouth, and concluded that the partial tooth remained in the extraction site. (Id. ¶ 21.) Dr. Youngblood extracted the remaining tooth fragment, and performed a skin graft to attempt to seal the site. (Id. ¶¶ 21-22.)
Plaintiff received further post-operative care from Dr. Youngblood. On March 11, 2008, still experiencing pain, Plaintiff returned to Dr. Youngblood. (Id. ¶ 23.) After examining Plaintiff's injury at the extraction site, Dr. Youngblood concluded that there was no problem, but that Plaintiff should return for a visit should he continue to experience discomfort. (Id. ¶ 23.) On March 14, 2008, Plaintiff heeded Dr. Youngblood's advice, and returned for additional postoperative care. (Id. ¶ 24.) Although Dr. Youngblood determined that the extraction site had reopened, he advised Plaintiff that he could not perform another procedure. (Id. ¶ 24.) He recommended that Plaintiff schedule an appointment with an oral surgeon at the University of Medicine and Dentistry of New Jersey, and requested that Plaintiff be taken to the University as soon as possible. (Id.) Dr. Youngblood gave Plaintiff 600 mg tablets of Ibuprofen for his pain, and the antibiotic Amoxicillin for the infection. (Id. ¶ 25.) Plaintiff returned an hour later to the medical department because he continued to experience severe pain. (Id. ¶¶ 25, 28.) Defendant Robin Clemons changed Plaintiff's medication to Tylenol with Codeine No. 3, but Plaintiff refused this medication because of his allergy to Codeine (noted in Plaintiff's medical record). (Id. ¶ 28.) Dr. Clemons apologized, and proscribed five 500 mg tablets of Hydrocodone-Acetaminophen for pain. (Id.) Plaintiff apparently never ingested the codeine and thus suffered no harm from it.
Plaintiff notified prison administration on March 14, 2008 about continued pain and discomfort. (Id. ¶ 30.) But, on March 27, 2008, the Administration determined that his dental issues were addressed by the medical department and Dr. Lutz. (Id. ¶ 32.) On April 4, 2008, Plaintiff received another letter from the Assistant Corrections Ombudsman, stating that she was advised that his condition was not deemed an emergency and that Plaintiff ought to make an appointment with the dental staff at the prison should future concerns arise. (Id. ¶ 35.)
Meanwhile, after a March 31, 2008 visit to get x-rays, Plaintiff returned to the University for oral surgery on April 15, 2008. (Id. ¶ 33.) The surgeons placed a Collagen Membrane over the oroantral fistula (an opening between the oral cavity and the sinus) that developed following Dr. Lutz's extraction. (Id. ¶¶ 33, 37.) Plaintiff returned to the prison infirmary for overnight care and observation, and Defendant Vaynberg attempted to give Plaintiff Tylenol with Codeine No. 3, but he refused this medication because he is allergic. (Id. ¶ 38.) Ms. Vaynberg instead provided Plaintiff with 800 mg of Ibuprofen and "2.5-60 mg" of Aprodine. (Id.)
Despite multiple follow-up visits, Plaintiff's discomfort and pain continued. On April 22, 2008, Plaintiff went to the University for post-operative care. (Id. ¶ 41.) On May 2, 2008, Plaintiff saw Dr. Youngblood because of sinus pain (and pain in his left eye), migraines, and numbness in his face. (Id. ¶ 43.) Dr. Youngblood advised Plaintiff to return May 9, 2008 for follow-up care, and when Plaintiff returned for care Dr. Youngblood advised him to return in one month to the University should he not make progress. (Id. ¶¶ 43-44.) On June 10, 2008 Plaintiff returned to the medical department complaining of sinus pain, migraines and numbness on the left side of his face. (Id. ¶ 47.) On June 17 and 20, Plaintiff saw Dr. Youngblood who stated that he would arrange for Plaintiff to visit the University because of the post-operative complications, and so that Plaintiff could be seen by an ear, nose and throat (ENT) doctor to resolve the discomfort. (Id. ¶¶ 48-49.)
Although Plaintiff underwent multiple procedures, there was still a possibility that he could undergo additional surgery. Plaintiff returned to the University on July 7, 2008 where he was told that he may need to return for surgery to clean and flush out his sinuses should he not make any progress in one month. (Id. ¶ 50.) On August 12, 2008, Plaintiff returned to the medical department for his pain and discomfort, and Defendant Dr. Clemons scheduled additional x-rays for Plaintiff's head and sinus area to determine whether or not she would refer Plaintiff to an ENT. (Id. ¶ 52.)
Several months later, Plaintiff's alleged pain and discomfort had not improved. On August 13, 2008, x-rays were taken, and on September 3, 2008, Plaintiff returned for the follow-up appointment with Dr. Clemons who told him that the x-rays of the right side of his head were normal. (Id. ¶ 54.) Plaintiff informed Dr. Clemons that the left side of his face was where the injury was located, so she told him to return within the month, and she gave the Plaintiff medication for pain and an antibiotic to prevent possible infection. (Id.) This was Plaintiff's last visit to the medical department and as of October 1, 2008 Plaintiff continued to experience constant pain, numbness and difficulty with his sinuses and sense of smell. (Id. ¶ 55.)
Plaintiff alleges in his malpractice claim that Defendant Dr. Lutz did not exercise reasonable care when extracting Plaintiff's tooth, and that Dr. Youngblood deviated from a reasonable standard of care when he (1) failed to remedy the damage caused by Dr. Lutz, and (2) when he failed to ensure that Plaintiff received prompt medical treatment following two oral surgeries [Docket Item 41 at 10]. Plaintiff also initially named Defendants CMS, Clemons and Vaynberg in his Complaint. (Compl. ¶ 8.) However, Plaintiff fails to explain the nature of his claim against these Defendants or specifically challenge the motion for partial summary judgment as to them even though the motion is filed by all named Defendants [Docket Item 36, 41].
Plaintiff submitted his complaint without a lawyer on October 6, 2008, which was filed on November 11, 2008 [Docket Item 1, 4]. On April 6, 2009 an Order was entered appointing counsel for Plaintiff [Docket Item 22]. Defendants subsequently filed this motion for partial summary judgment arguing that Plaintiff failed to timely submit the requisite affidavit of merit under N.J. Stat. Ann. § 2A:53A-27 [Docket Item 36]. Plaintiff filed a brief in opposition to Defendant's motion for partial summary judgment arguing that Plaintiff is not required ...