GLORIANA URBAN v. LAWRENCE NAAME, M.D

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2596-11T2

GLORIANA URBAN,

Plaintiff-Appellant,

v.

LAWRENCE NAAME, M.D.,

ATLANTIC BONE AND JOINT

SURGEONS and ATLANTICARE

REGIONAL MEDICAL CENTER,

Defendants-Respondents.

_____________________________

October 3, 2012

 

Argued September 19, 2012 - Decided

 

Before Judges Reisner, Harris and Hoffman.

 

On appeal from the Superior Court of New Jersey,

Law Division, Atlantic County, Docket No. L-1325-10.

 

PatriciaM.Giordano (Feldman,Shepherd, Wohlgelernter, Tanner, Weinstock & Dodig, L.L.P.) argued the cause for appellant.

 

Joseph J. Mandia argued the cause for respondents Lawrence Naame, M.D. and Atlantic Bone and Joint Surgeons (Crammer, Bishop & O'Brien, attorneys; Mr. Mandia, on the brief).

 

Apple Sulit-Peralejo argued for respondent AtlantiCare Regional Medical Center (Fox Rothschild, L.L.P., attorneys; Epiphany McGuigan, on the brief).

PER CURIAM

Plaintiff Gloriana Urban appeals from a December 21, 2011 order granting summary judgment dismissing her medical malpractice complaint against defendants Lawrence Naame, M.D., Atlantic Bone and Joint Surgeons, and Atlanticare Regional Medical Center. For the reasons that follow, we reverse the order on appeal and remand this matter to the trial court.

We review the trial court's grant of summary judgment de novo, employing the same standard used by the trial court. See Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). If there are no material facts in dispute, we consider whether, viewing the undisputed facts in the light most favorable to the non-moving party, the moving party is nonetheless entitled to judgment as a matter of law. Agurto v. Guhr, 381 N.J. Super. 519, 525 (App. Div. 2005). We have kept that standard in mind when reviewing the record, including the statements of material fact, and responses thereto, that the parties filed in compliance with Rule 4:46-2.

These are the most pertinent facts. On December 10, 2007, plaintiff fell and broke her right ankle while visiting an Atlantic City casino. On that same day, Dr. Naame performed an

open reduction internal fixation on the ankle, using a plate and screws. He told plaintiff the operation went "perfect" and she would be able to walk without crutches in four to six weeks. However, according to plaintiff, she continued to have pain and difficulty putting weight on the ankle, but Dr. Naame kept telling her that recovery would take time. Her last appointment with Dr. Naame was on March 26, 2008.

Because plaintiff was concerned that something was still wrong with her ankle, she consulted with a second doctor on April 18, 2008; he told her the ankle was not healing properly and she needed more surgery. After consulting a third doctor on June 16, 2008, she had the surgery on September 11, 2008. She filed her complaint on March 24, 2010, less than two years after she finished treatment with Dr. Naame, and about two years and three months after the December 10, 2007 surgery.

After plaintiff and Dr. Naame were deposed, defendants moved for summary judgment, contending that the two-year statute of limitations, N.J.S.A. 2A:14-2, commenced on December 10, 2007, when Dr. Naame performed the surgery, and plaintiff therefore should have filed her complaint by December 9, 2009. Plaintiff asserted that the statute of limitations was equitably tolled by the discovery rule, Lopez v. Swyer, 62 N.J. 267, 274-76 (1973), because she did not discover that Dr. Naame had improperly performed the surgery and had misread the subsequent X-rays of her surgically-repaired ankle, until she consulted with the second doctor. She also contended that because she alleged that Dr. Naame was negligent in his post-surgical treatment, the statute of limitations did not begin to run until she ceased treatment with him on March 26, 2008.

In his deposition, Dr. Naame admitted that there were problems with the ankle post-surgery, but blamed that result entirely on what he claimed was plaintiff's failure to use her crutches. Dr. Naame also admitted that additional surgery might have been needed, but he testified that he would not have considered recommending more surgery to this patient because she was putting weight on the ankle despite his instructions to the contrary. He testified that, if she put weight on the ankle after a second surgery, that surgery would be rendered useless as well. Dr. Naame conceded that, on March 26, 2008, when he last examined plaintiff, he "was thinking something's going on with her ankle" but he did not disclose this information to plaintiff or discuss with her the possible need for more surgery.

The motion judge based his summary judgment decision on his interpretation of plaintiff's deposition testimony. During the deposition, defense counsel repeatedly attempted to establish that plaintiff was aware of Dr. Naame's possible malpractice as early as February 2008. Plaintiff did not make that admission.1 The following colloquy illustrates the exchange:

Q. In February [2008] being that you are telling me that you were being told the same thing about your recovery, you were thinking something is wrong and that it was something that Dr. Naame wasn't doing that was causing the problem?

 

A. Or something that he did. I don't know.

 

Q. But you had that thought in February [2008]?

 

A. Yes.

. . . .

 

Q. Did you lose confidence because you thought that there was something that the doctor wasn't doing in treating your right ankle?

 

A. Possibly.

 

Q. Well, when you "possibly," I mean, it sounds like -- is that a yes or no?

 

A. That's why I had gone to other surgeons to get their opinion. I knew that there was something wrong and on how it became wrong I wasn't sure.

 

Q. And you knew that there was something wrong prior to seeking the second opinion, correct?

 

A. The reason I had gone for a second opinion is because I knew there was something wrong. I needed to have it corrected and he wasn't -- he just kept . . . stringing me along saying that it's going to take time. I said you told me four to six weeks, it's now three months, and he goes, well, it's going to take time.

 

Well, I was very afraid that something serious was wrong, whether what he did or didn't do or whatever option you had mentioned I don't know. That's why I sought other opinions.

 

Q. And you knew he did something wrong? At what time in your treatment with him did you know that he had done something wrong?

 

A. When I was increasingly -- the pain was getting more severe. I realized that I couldn't put weight on it.

 

Q. Would that have been four to six weeks after surgery?

 

A. No, it was increasingly getting worse, the pain.

 

Q. Right. And you have told me that you know he had done something wrong during the course of his treatment of you, correct?

 

A. Something was wrong, yes.

 

Q. Do you know what the date of your last visit with him was?

 

A. It was in March [2008]. I don't remember that exact date.

 

 

The motion judge ruled that the complaint was untimely because the allegedly negligent surgery took place in December 2007, and because plaintiff admitted believing in February 2008 that something was "wrong" with the ankle and that defendant might have done something wrong. However, we conclude that in finding that plaintiff was not entitled to invoke the discovery rule, the judge took plaintiff's testimony out of context and construed the evidence in the light least favorable to plaintiff. Further, the judge applied a subjective rather than an objective standard in determining when plaintiff knew of sufficient facts to cause her to believe that Dr. Naame had caused her injury through negligent medical treatment.

This case is similar to Lynch v. Rubacky, 85 N.J. 65 (1981), in which the plaintiff had surgery to repair a broken ankle. The surgeon repeatedly assured her that the surgery had gone well, and the plaintiff did not learn otherwise until she sought a second opinion. The Court held that her dissatisfaction with the results of the surgery and her suspicion of a problem, which led her to seek a second opinion, did not amount to notice that the surgeon had caused her injury:

The fact that plaintiff here sensed that something was "wrong" with her ankle and was "dissatisfied" with her treatment is not incompatible with a belief that her doctor was treating her fully in accordance with proper medical standards. It is well accepted in this jurisdiction that medicine is not an exact science, and it is generally understood that a physician is not a guarantor that no harm or unfavorable consequences will arise from his treatment.

 

Moreover, as in this case, a doctor's repeated assurances of progress may reinforce the reluctance of an average patient to find medical fault. Hence, it is extremely unlikely that Mrs. Lynch, who was consistently encouraged by Dr. Rubacky's optimistic prognoses of healing, sensed the real possibility of malpractice.

 

[Id. at 74-75 (citations omitted).]

 

Likewise, in this case, plaintiff's dissatisfaction with her ankle's failure to heal, despite Dr. Naame's reassurances, led her to seek a second opinion. However, her vague suspicions did not amount to objective evidence that would have caused a reasonable person to suspect malpractice. See Szcauvulek v. Harborside Healthcare Woods Edge, 182 N.J. 275, 281 (2005) ("The standard is basically an objective one--whether plaintiff 'knew or should have known' of sufficient facts to start the statute of limitations running."). That is especially so because, by his own admission, Dr. Naame repeatedly told plaintiff that the failure of her ankle to heal was solely her fault for putting weight on her right foot.

At the heart of every discovery rule case is the issue of 'whether the facts presented would alert a reasonable person exercising ordinary diligence that he or she was injured due to the fault of another[.]'

. . . . [W]here the relationship between plaintiff's injury and defendant's fault is not self-evident, it must be shown that a reasonable person, in plaintiff's circumstances, would have been aware of such fault in order to bar her from invoking the discovery rule.

 

[Kendall v. Hoffman-LaRoche, Inc., 209 N.J. 173, 191-92 (2012) (citations omitted).]

 

In this case, the nature of the alleged malpractice was not something a lay person would readily comprehend. All plaintiff knew was that her ankle still hurt and would not bear weight. As the Court held in Mancuso v. Neckles, 163 N.J. 26 (2000):

This "type of case" involving medical malpractice requires special focus on the "nature of the information" possessed by the claimant. . . . [C]ases of complex medical causation are quite unlike cases in which injury and cause are self-evident, as when a record press machine malfunctions and crushes a worker's hand. In cases of complex medical causation, it is not at all self-evident that the cause of injury was "(a) the fault of (b), a third party. Not only is the nature of the injury generally unclear, its very existence is frequently masked." In that context of masked injury and complex causation more is required than suspicion--"in the sense of an uninformed guess or of speculation without some reasonable medical support--of a causal connection between a physical condition and chemical exposure [to start] the running of the statute of limitations. . . ."

 

In order to start the statute of limitations running in this context of medical malpractice, more is required than mere speculation or an uninformed guess "without some reasonable medical support" that there was a causal connection between Pia Mancuso's condition and Dr. Beinart's conduct.

 

[Id. at 34 (quoting Vispisiano v. Ashland Chemical Co., 107 N.J. 416 (1987)).]

 

Defendants rely heavily on Savage v. Old Bridge-Sayreville Medical Group, 134 N.J. 241 (1993), for the proposition that, to commence the running of the limitations period under the discovery rule, a plaintiff need only have knowledge of the "possibility of wrongdoing." Id. at 248. However, Savage cited Lynch in emphasizing that if "'fault is not self-evident or obviously revealed by the injury itself, the judicial search into an aggrieved party's knowledge of possible fault must be * * * exacting.'" Id. at 247-48 (quoting Lynch, supra, 85 N.J. at 74). Further, Mancuso makes clear that, where, as here, plaintiff undergoes a complex medical procedure, a mere subjective suspicion that the procedure has gone wrong is insufficient to charge plaintiff with objective knowledge that the physician has committed malpractice. Mancuso, supra, 163 N.J. at 34.

Additional considerations lead us to conclude that the discovery rule should be applied here. The rule is an equitable doctrine that requires the judge to consider a number of factors:

The issue will be whether or not a party, either plaintiff or counterclaimant, is equitably entitled to the benefit of the discovery rule. All relevant facts and circumstances should be considered. The determinative factors may include but need not be limited to: the nature of the alleged injury, the availability of witnesses and written evidence, the length of time that has elapsed since the alleged wrongdoing, whether the delay has been to any extent deliberate or intentional, whether the delay may be said to have peculiarly or unusually prejudiced the defendant.

 

[Lopez, supra, 62 N.J. at 275-76.]

 

Plaintiff acted quite promptly in seeking a second opinion, and she filed her lawsuit less than two years after she first consulted with the second doctor. Further, even if the statute of limitations began to run on December 10, 2007, her March 24, 2010 filing was only about three months beyond the two-year filing deadline. She did not let years go by after the limitations period expired, and there is no evidence that the extra few months caused defendants any prejudice.

Moreover, Dr. Naame continued to treat plaintiff until March 26, 2008. She claims that his failure to properly diagnose her post-surgical problems was part of the malpractice, and the statute of limitations was tolled until he ceased treating her. Although plaintiff raised this issue on the summary judgment motion, the judge did not address it. We agree with plaintiff that, with respect to her claims of post-surgical malpractice, the statute of limitations began to run on March 26, 2008, the date of her last appointment with Dr. Naame. See Tortorello v. Reinfeld, 6 N.J. 58, 66 (1950); Bauer v. Bowen, 63 N.J. Super. 225, 231 (App. Div. 1960); Aykan v. Goldzweig, 238 N.J. Super. 389, 392 (Law Div. 1989). Thus, her March 24, 2010 complaint was filed within the statute of limitations.

Accordingly, we reverse the order granting summary judgment and remand this matter to the trial court for further proceedings.

Reversed and remanded.

1 Similarly, defense counsel asked plaintiff if she believed Dr. Naame was "wrong" in giving her a plastic brace instead of putting her leg in a cast post-surgery. She responded: "I don't think I'm capable of making that decision. He's the one that s supposedly the knowledgeable person that you are supposed to trust. I'm not capable of evaluating."