The statute of limitations in a lawsuit claiming medical negligence by prison officials in delaying a prisoner’s surgery begins to accrue when the prisoner is first recommended for surgery by a specialist, the Appellate Division of the Superior Court of New Jersey decided on February 19, 2009.

Cecil Fearon, incarcerated at the East Jersey State Prison, sued Correctional Medical Services and five physicians for excessive delay in providing him with needed neck surgery. On April 28, 2004, Fearon was seen by a prison doctor and recommended for a consult with a neurosurgeon.

Fearon was seen by the neurosurgeon on June 22, 2004 and recommended for a cervical discectomy and fusion. No surgery was scheduled, however. Fearon was seen by the neurosurgeon again in April 2005, some ten months later, and again recommended for surgery. The surgery still was not scheduled until January 2006. The procedure was finally performed in January, but the delay caused Fearon’s condition to worsen and compromised the results of the surgery.

The defendants were successful in having the suit dismissed on statute of limitations grounds in Superior Court, arguing that the limitations period began to run on April 28, 2004 when Fearon was first seen by a prison doctor about his condition and recommended to see a neurosurgeon.

The appellate court reversed, holding that the limitations period for Fearon’s claims started on June 22, 2004, the day he was recommended for surgery. Fearon’s lawsuit was filed within two years of that date, and thus his claims were timely. The case was remanded for further proceedings. See: Fearon v. Correctional Medical Services, Inc., Case No. A-4686-07T3, 2009 WL 395473 (N.J.Super.A.D. 2009).

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