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Taglieri v. Moss2/26/2004
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued October 16, 2003
These appeals, which we now consolidate and address in one opinion, arise in the context of a medical malpractice action brought by fourth-party plaintiff Claus Warnebold against defendant Albert Moss, M.D. Warnebold alleges that Moss's excessive prescription of narcotic drugs proximately caused his drug addiction. The record establishes that Moss knowingly violated regulations that control the prescription of Schedule II narcotic drugs. Three significant issues are raised by these appeals.
The first issue, common to both appeals brought on behalf of Moss, is whether a physician's knowing violation of the regulations is merely evidence of professional negligence, or whether the violation establishes negligence as a matter of law. The second issue, relating only to the appeal in A-5053, is whether the physician's conduct constitutes"willful misconduct" as contemplated by the Tort Claims Act, N.J.S.A. 59:1-1 to 59:12-3, specifically N.J.S.A. 59:3-14, as a matter of law. The third issue, also relating solely to A-5053, is whether the verbal threshold established by the Act, N.J.S.A. 59:9-2d, shields the physician from liability for non-economic damages despite the non-exoneration provisions of N.J.S.A. 59:3-14.
Both appeals arise out of Warnebold's medical malpractice action against his former physician, Moss. Warnebold alleges that Moss wrote post-dated and undated prescriptions for several Schedule II narcotic drugs, contrary to N.J.A.C. 8:65-7.5(a) and N.J.A.C. 8:65-7.9, regulations enacted pursuant to the New Jersey Controlled Dangerous Substances Act, N.J.S.A. 24:21-1 to -53. Warnebold claims that Moss's conduct was a proximate cause of his addiction to narcotics and resulting damages.
After a confusing history of orders on several dispositive motions filed by various parties, the Law Division Judge granted partial summary judgment"on liability" in favor of Warnebold, holding that Moss's willful violations of the administrative regulations constituted negligence as a matter of law. The judge also held that Moss's actions constituted willful misconduct pursuant to N.J.S.A. 59:3-14 and deprived defendant of any protection otherwise available under the Tort Claims Act, specifically, the verbal threshold set forth in N.J.S.A. 59:9-2d. We granted Moss's motions for leave to file these interlocutory appeals and now affirm in both appeals.
A brief summary of the facts will be sufficient for purposes of these appeals. Warnebold's medical history, specifically his use of addictive narcotic drugs, apparently began in 1987 with Percocet prescribed for headaches. His drug use continued through 1990, when he underwent a lumbar laminectomy, but he went through a hospital-based detoxification program in 1991. In March 1997, while Moss was employed as a physician for HIP/Pinnacle Medical Group, Warnebold first became his patient. Over the next four years, Moss repeatedly provided Warnebold with post-dated and undated prescriptions for narcotic drugs known as Percocet and Tylox, as well as for a muscle relaxant known as Soma.
Pursuant to an agreement between Moss and Warnebold that neither disputes, Moss wrote prescriptions for those drugs for Warnebold for months at a time. Moss also instructed Warnebold not to present an undated or post-dated prescription to any pharmacy. In April 1999, Moss became an employee of the University of Medicine and Dentistry of New Jersey ("UMDNJ"), a public entity, where he continued to treat and prescribe for Warnebold until some time in the first half of 2001.
Moss testified in depositions that he kne
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