A New Jersey state appellate court issued an unpublished opinion reversing a lower court's grant of summary judgment to Correctional Medical Services (CMS) and the New Jersey Department of Corrections (DOC).

On November 7, 1996, Craig Szemple, a prisoner at the New Jersey State Prison, under went two surgeries to correct carpal tunnel syndrome and ulner nerve entrapment. The treating physician ordered physical therapy to begin as soon as possible and continue for three months. This order was noted in Szemple's prison medical file on November 21, 1996.

Nevertheless, it was not until December 9, 1996 that Dr. Acheloe, the Group Medical Director of the Central Region of CMS, reviewed [this] recommendation and authorized physical therapy. CMS policy required that Acheloe's recommendation also be approved by his supervisor, the statewide medical director for CMS.

Acheloe again recommended physical therapy on January 27, 1997 and February 25, 1997, because it had not yet begun. Szemple did not receive his first physical therapy evaluation on March 17, 1997 and did not begin receiving physical therapy until approximately April 1, 1997.

Szemple brought suit in state court against CMS and DOC alleging that they negligently delayed his physical therapy. Pursuant to N.J.S.A. 2A:52A-27, which requires that an Affidavit of Merit" (AOM) be submitted in negligence actions, Szemple submitted an AOM by Dr. Devin Belden.
In August 2001, CMS moved for summary judgment on several grounds relating to Dr. Belden's qualifications to make the Affidavit..., the sufficiency of the Affidavit and its non-compliance with the statute. The motion was denied[.]

DOC then moved for summary judgment and CMS sought reconsideration of its earlier motion." Both motions were denied on April 8, 2002. Not to be deterred, however, defendants again moved for summary judgment, and [i]n a remarkable reversal of fortune, the judge concluded that his earlier rulings had been in error, and granted the motions by order of February 13, 2003[.]" This order was based on Dr. Belden's failure to offer an expert opinion concerning whether CMS failed to develop, implement and supervise [its] policies, procedures, investigations and evaluations' concerning the need for timely post-surgical therapy.

The appellate court acknowledged that Szemple was critical of the judge for his change in position" and admitted that it is certainly unusual to permit repeated bites of the apple' in the manner" that occurred. It concluded, however, that the limits, if any, on such repeat summary judgment applications before the same judge must be left to the judge's well-considered discretion." The court even commended the judge for his willingness to re-examine his earlier rulings.

The court reversed the grant of summary judgment, agreeing with Szemple that his claim falls within the realm of common knowledge, not requiring expert testimony or, therefore, an AOM." Rather, a jury could, without the aid of an expert, decide whether the cumbersome, bureaucratic procedure" employed by CMS was adequate to achieve the need for prompt therapy[.]
The court rejected DOC's argument that it is entitled to summary judgment, because there is no independent basis for plaintiff's claim against it. Since the lower court did not reach this question, the court indicated that DOC was free to address the claim on remand. See: Szemple v. Correctional Medical Services,, No. A-3842-02T2 (Sup. Ct. of NJ App. Div., November 17, 2004).

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