United States District Court, D. New Jersey
JOSE A. RAMIREZ, Plaintiff,
DENNIS NUGENT, et al., Defendants.
William M. Tambussi, Esq., Benjamin S. Teris, Esq., Brown & Connery LLP, Westmont NJ, Attorney for Plaintiff.
Ellen Lubensky Casagrand, Esq., Buckley Theroux Kline & Petraske LLC, Princeton NJ, Attorney for Defendant Dennis Nugent.
JEROME B. SIMANDLE, Chief District Judge.
Plaintiff Jose A. Ramirez alleges that while a prisoner at South Woods State Prison he underwent urological surgery by Defendant Dennis Nugent, M.D., to improve an abnormality and that the surgery rendered him sterile, a risk of which he was not informed. In his Amended Complaint, Ramirez alleges claims for medical malpractice under New Jersey law, for violation of the Eighth Amendment right to adequate medical care while incarcerated pursuant to 42 U.S.C. § 1983 and the New Jersey Constitution, and for violation of his Fourteenth Amendment right to be informed of the potential consequences of such operation pursuant to 42 U.S.C. § 1983.
This matter comes before the Court upon Defendant Nugent's Motion to Dismiss this action for failure to state a claim of medical malpractice because Plaintiff did not serve an Affidavit of Merit as required under N.J.S.A. 2A:53A-29, and because Plaintiff has not stated a constitutional claim entitling him to a remedy under 42 U.S.C. § 1983. (Docket Item 33). Plaintiff filed opposition to the motion (Docket Item 35) to which Defendant replied (Docket Item 36).
On or around November 1, 2012, Plaintiff, incarcerated at the South Woods State Prison, filed a pro se civil complaint asserting jurisdiction under 42 U.S.C. § 1983. (Docket Item 1). In the complaint, Plaintiff states that after a urinary abnormality for a substantial period of time, Defendant Dr. Nugent recommended and performed surgery. The first surgery took place on February 8, 2011, and a "minimal prostatic obstruction" was found. On July 22, 2011, after four months of no improvement, Dr. Nugent considered the obstruction diagnosis and performed a second surgery. (Complt., ¶ 6).
After the surgeries, Plaintiff realized he was unable to ejaculate. He saw Dr. Nugent on October 23, 2011, and first learned that "his medical injury caused by the procedure" (presumably, the inability to ejaculate), was permanent. Plaintiff obtained his medical records and learned that Dr. Nugent was planning on having an in-depth discussion with Plaintiff prior to the surgery about consequences of the surgery; however, the conversation never took place. Plaintiff "submits that Dr. Nugent did not discuss the possible consequences of the medical procedure with him at any time preceding the surgery." ( Id. ).
On February 18, 2013, Defendant Nugent filed an Answer to the Complaint (Docket Item 8), and then an amendment to the Answer on February 19, 2013 (Docket Item 9). On June 7, 2013, Plaintiff's motion to appoint pro bono counsel was granted (Docket Item 14), and counsel entered an appearance for Plaintiff on August 23, 2013 (Docket Item 18).
On November 21, 2013, Plaintiff's counsel filed a Motion to Amend, which was granted on December 3, 2013 (Docket Items 21, 22). On December 13, 2013, the Amended Complaint was filed (Docket Item 25). In the Amended Complaint, Plaintiff asserts that on or about October 10, 2013, prior to the filing of the Amended Complaint, Plaintiff saw a urologist, who informed him that the cause of his urinary abnormality was not his prostate, but rather due to an overactive bladder. (Am. Complt., ¶ 20). Thus, Plaintiff argues that since he was misdiagnosed, resulting in an unnecessary surgery for which he was not informed of the consequences prior, deliberate indifference has been shown. (Am. Complt., ¶ 22). The unnecessary surgery rendered Plaintiff sterile and caused irreversible damage (Am. Complt., ¶¶ 25, 34).
On February 24, 2014, Defendant filed an Answer to the Amended Complaint (Docket Item 31). This Motion to Dismiss followed on April 2, 2014 (Docket Item 33), and Plaintiff thereafter filed an Affidavit of Merit on April 15, 2014.
II. Parties' Positions
Defendant Nugent, who is the sole named defendant in the Amended Complaint (the other being a "John Doe" defendant), asserts that Plaintiff failed to file an Affidavit of Merit as required by New Jersey's Affidavit of Merit statute, N.J.S.A. 2A:53A-29. Accordingly, Defendant argues that Plaintiff's claims asserting medical malpractice must be dismissed with prejudice for failure to state a claim. Additionally, Defendant asserts that Plaintiff's claims do not rise to the level of a constitutional violation to warrant a remedy under 42 U.S.C. § 1983.
Plaintiff counters that the motion to dismiss should be denied because he, in fact, did file an Affidavit of Merit, and that his Amended ...