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Szczuvelek v. Harborside Healthcare Woods Edge1/24/2005
Argued September 13, 2004
The members of the Court being equally divided on the issue of the timeliness of the filing of plaintiff's complaint against Harborside Healthcare Woods Edge t/a Harborside Nursing Home (Harborside), the judgment of the Appellate Division is affirmed in respect of that defendant.
The Court is unanimous that it was error to enter judgment dismissing the complaint against Somerset Medical Center (Somerset) and remands the matter to the trial court for further consideration.
I.
The facts are these. In February 1999, Eugene Burns was admitted to the Robert Wood Johnson Hospital in New Brunswick for treatment of an aneurysm. During a surgical procedure, a tracheotomy tube was inserted into Burns' throat. Thereafter, he was unable to speak, but he could communicate by writing on a pad. Burns was treated at Robert Wood Johnson for approximately two months following his operation. On April 13, 1999, he was transferred to Harborside for rehabilitation. The medical order issued by Robert Wood Johnson directed that Burns should be suctioned every four hours. Harborside issued its own order on April 14, 1999, requiring healthcare personnel to "suction Q shift and PRN." (Q means once per shift three shifts per day, and PRN means as needed).
Stephen Szczuvelek (plaintiff), a close friend of Burns, visited him at Harborside on April 15, 1999. During plaintiff's visit, Burns wrote him a note stating, "Steve, you have to get me out of here. They're going to kill me. They left me in my own waste for three hours. They won't suction me. Please get me out of here. And I need to be suctioned now."
Plaintiff pressed the nurse's call button to obtain help for Burns, but he did not receive a response. After waiting an hour, plaintiff left Burns' room to seek help. He found a nurse, who took plaintiff to a conference room to speak with a social worker . After plaintiff gave Burns' note to the nurse and the social worker, they assured him that someone would assist Burns.
Upon his return to Burns' room, plaintiff asked the nurse on duty if she would suction Burns. The nurse responded, "I just did." Burns then shook his head indicating that the nurse had not suctioned him. Plaintiff confronted the nurse, "Ma'am, I've been here almost two hours and you haven't stepped foot in this room." She responded, "it's the doctor's orders, he's not to be suctioned." Upon further prodding from plaintiff to suction Burns the nurse said, "I don't have to take this crap," and left the room. Plaintiff departed Harborside that evening concerned for Burns' health and determined to find an alternative placement for him.
The following day, April 16, 1999, Burns was rushed to Somerset because he was unresponsive. Plaintiff visited Burns in the Somerset emergency room. He observed Burns' poor medical condition and believed that Burns was dying. Burns seemed terrified and lapsed in and out of consciousness. A doctor told plaintiff that Burns would not survive an operation and that the hospital would make Burns "as comfortable as possible."
While he was in the emergency room, a nurse informed plaintiff that Harborside had not suctioned Burns because there was a fire drill the prior evening. Later, the social worker at Harborside denied that any fire drill had occurred.
At some point a Somerset doctor asked plaintiff why Burns was not transferred to Robert Wood Johnson. Plaintiff indicated to the doctor that he had not participated in the decision to transfer Burns to Somerset. Apparently, the doctor was concerned because Burns had previously been treated at Robert Wood Johnson and his medical records were th
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