LYNDA FERRARI VS. JOAN F. O'SHEA, M.D. (L-3731-14, CAMDEN COUNTY AND STATEWIDE) ( 2018 )


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  •                         NOT FOR PUBLICATION WITHOUT THE
    APPROVAL OF THE APPELLATE DIVISION
    This opinion shall not "constitute precedent or be binding upon any court."
    Although it is posted on the internet, this opinion is binding only on the
    parties in the case and its use in other cases is limited. R. 1:36-3.
    SUPERIOR COURT OF NEW JERSEY
    APPELLATE DIVISION
    DOCKET NO. A-3269-16T2
    LYNDA FERRARI,
    Plaintiff-Appellant,
    v.
    JOAN F. O'SHEA, M.D.,
    Defendant-Respondent,
    and
    VIRTUAL WEST JERSEY HOSPITAL,
    Defendant.
    _____________________________
    Argued May 8, 2018 – Decided July 13, 2018
    Before Judges Reisner and Hoffman.
    On appeal from Superior Court of New Jersey,
    Law Division, Camden County, Docket No.
    L-3731-14.
    Sherri L. Warfel argued the cause for
    appellant (Stark & Stark, attorneys; Sherri
    L. Warfel, of counsel; Alex J. Fajardo, on the
    brief).
    Thomas M. Walsh argued the cause for
    respondent (Parker McCay, PA, attorneys;
    Thomas M. Walsh and Mary Kay Wysocki, of
    counsel; Kathryn A. Somerset, on the brief).
    PER CURIAM
    Plaintiff Lynda Ferrari appeals from a February 3, 2017 order,
    dismissing her medical malpractice claim against Dr. Joan F. O'Shea
    on statute of limitations grounds.         Plaintiff also appeals from a
    March 20, 2017 order denying her motion for reconsideration.1
    Because we conclude plaintiff was entitled to the benefit of the
    discovery rule, we reverse the orders on appeal and remand the
    case to the trial court.
    I
    We briefly summarize the facts relevant to our disposition.
    In April 2006, plaintiff fell down some steps at her place of
    employment, and injured her right knee and lower back.                 She
    received   treatment   for   her   injuries    through   her   employer's
    workers' compensation plan.    On July 23, 2008, Dr. O'Shea, to whom
    plaintiff was referred by the compensation carrier, performed
    surgery to address plaintiff's right-sided herniated discs at L4-
    L5 and L5-S-1.
    The surgery did not alleviate plaintiff's pain and she began
    to develop additional physical problems.        According to plaintiff,
    1
    The court dismissed plaintiff's complaint against co-defendant
    Virtua-West Jersey Health System, Inc. (improperly impleaded as
    Virtual West Jersey Hospital), by order of August 21, 2015.
    Plaintiff did not appeal from that order, and the co-defendant is
    not participating in this appeal.
    2                          A-3269-16T2
    when she told Dr. O'Shea that she was still in pain, Dr. O'Shea
    assured her that "it's going to take time to heal, and it will
    subside."   Thereafter, plaintiff went to one workers' compensation
    doctor after another, seeking treatment for her persistent pain.
    None of them criticized the treatment Dr. O'Shea had provided,
    until Dr. Anton Kemps issued a report in September 2012.
    According to her complaint, filed on September 29, 2014,
    plaintiff   first    learned   that   Dr.   O'Shea   may   have   committed
    malpractice, when plaintiff received a September 28, 2012 report
    from Dr. Kemps, stating that there was no indication that plaintiff
    "had any material placed within her disc spaces to replace the
    removed disc."      Dr. Kemps stated that the absence of replacement
    material made plaintiff vulnerable to develop new herniations.
    According to the complaint, a review of Dr. O'Shea's operative
    report did not show that any stabilization device was inserted to
    replace the removed disc.      In her deposition testimony, plaintiff
    confirmed that she first learned that Dr. O'Shea may have done
    something wrong, when she found out about Dr. Kemps' September 28,
    2012 report.
    Defendant filed an answer in January 2015, pleading the
    statute of limitations, among other defenses.          In February 2015,
    the case was stayed for ninety days to allow plaintiff to retain
    new counsel, due to the untimely death of her attorney.               After
    3                             A-3269-16T2
    plaintiff    obtained   new      counsel,      the     parties    completed        fact
    discovery, including plaintiff's deposition on July 14, 2016.
    During the deposition, defendant's counsel reminded plaintiff's
    counsel that "there is a statute of limitations issue in this
    case. And it's a significant one."              Defendant filed a motion to
    dismiss on statute of limitations grounds on December 29, 2016.
    The summary judgment record includes Dr. Kemps' September 28,
    2012 report.    It also includes a note from Dr. O'Shea, confirming
    that plaintiff's "L4-5 recurrent disc herniation . . . does come
    under the Workman's Compensation accident of April 29, 2006."                       The
    note   is   dated   April   4,   2012,       however    the   correct       date   was
    apparently April 4, 2013, because the note refers to information
    taken from Dr. O'Shea's "last note . . . from February 28, 2013."
    The February 28, 2013 note also confirms the presence of an
    additional    herniation    at    L4-5,      attributable        to   the   original
    workers' compensation covered accident.                 In other words, viewed
    most favorably to plaintiff, Dr. O'Shea admitted in her notes that
    plaintiff experienced an additional herniation at the site of the
    operation.
    In granting defendant's motion, the trial court relied on a
    January 29, 2009 report from Dr. Kemps to the workers' compensation
    carrier, in which Dr. Kemps noted that plaintiff had developed
    "arachnoiditis."     The trial court also relied on an April 23, 2009
    4                                    A-3269-16T2
    letter from plaintiff's workers' compensation attorney written to
    his adversary in the compensation case.           The letter referred to
    Dr.   Kemps'     report,    noting   that    plaintiff     had     developed
    arachnoiditis as a result of the surgery and asking that the
    insurer provide plaintiff continued medical coverage for that
    condition.2
    Dr. Kemps' 2009 report stated that, according to Dr. O'Shea's
    notes,   an    August   2008   follow-up    MRI   had   revealed   "minimal
    enhancement of nerve roots of the L4-5 level consistent with
    arachnoiditis."3        Dr. Kemps recommended a "five percent (5%)
    increase" in plaintiff's "partial total disability of the lumbar
    spine referable to surgical repair of disc herniations in the low
    lumbar area."     There is no testimony or evidence, however, that
    Dr. Kemps' opinion would alert either a workers' compensation
    attorney, or a layperson such as plaintiff, that the surgery was
    a failure or that Dr. O'Shea had committed malpractice.              To the
    contrary, Dr. Kemps' evaluation was that the arachnoiditis was of
    minimal significance, only warranting a five percent increase in
    2
    In Dr. O'Shea's deposition, she explained that arachnoiditis
    was "clumping of the nerve roots within the thecal sac."
    3
    Dr. O'Shea's notes are in the summary judgment record.   She
    found some arachnoiditis, but on re-examination, found that the
    arachnoiditis had gone away.
    5                               A-3269-16T2
    plaintiff's partial total disability for workers' compensation
    purposes.
    In denying plaintiff's reconsideration motion, the trial
    court relied on a March 6, 2012 evaluation by Dr. Goldstein,
    another workers' compensation doctor.               Dr. Goldstein stated that
    "the operation did not help the patient, and as she recalls, it
    made things worse."          The judge also rejected plaintiff's argument
    that defendant waived the statute of limitations defense through
    delay in asserting it.
    II
    The trial court treated defendant's dismissal motion as one
    for    summary   judgment.       Accordingly,       our     review    is   de     novo,
    employing the same standard as the trial court.                    See Townsend v.
    Pierre,    
    221 N.J. 36
    ,     59   (2015)     (citing      Davis    v.   Brickman
    Landscaping, Ltd., 
    219 N.J. 395
    , 405 (2014)). We review the denial
    of a reconsideration motion for abuse of discretion. Pitney Bowes
    Bank, Inc. v. ABC Caging Fulfullment, 
    440 N.J. Super. 378
    , 382
    (App. Div. 2015).
    A medical malpractice claim must be filed within two years
    of the accrual date, which is usually the date of the negligent
    act.     Szczuvelek v. Harborside Healthcare Woods Edge, 
    182 N.J. 275
    , 281 (2005).        In an appropriate case, however, "a cause of
    action    will   be   held    not    to    accrue   until    the     injured      party
    6                                    A-3269-16T2
    discovers,      or   by    an   exercise       of    reasonable     diligence    and
    intelligence should have discovered that he [or she] may have a
    basis for an actionable claim."                
    Ibid. (alteration in original)
    (quoting Lopez v. Swyer, 
    62 N.J. 267
    , 273 (1973)).
    The goal of the discovery rule is to "avoid [the] harsh
    results that otherwise would flow from mechanical application of
    a statute of limitations."         Kendall v. Hoffman-La Roche, Inc., 
    209 N.J. 173
    , 191 (2012) (alteration in original) (quoting Caravaggio
    v.   D'Agostini,     
    166 N.J. 237
    ,     245      (2001)).    The   standard     is
    "basically an objective one—whether plaintiff knew or should have
    known of sufficient facts to start the statute of limitations
    running."      
    Caravaggio, 166 N.J. at 246
    (quoting Baird v. Am. Med.
    Optics, 
    155 N.J. 54
    , 72 (1998)).             In applying the rule, the court
    must   also    consider     "whether     the     delay   may   be   said   to   have
    peculiarly or unusually prejudiced the defendant."                  
    Lopez, 62 N.J. at 275-76
    .
    Plaintiff presents the following arguments on this appeal:
    I. THE COURT ERRED IN DETERMINING THAT
    PLAINTIFF SHOULD HAVE KNOWN THAT DEFENDANT'S
    SURGERY WAS A DEVIATION FROM THE STANDARD OF
    CARE BECAUSE HER LAWYER AUTHORED A LETTER THAT
    CLAIMED SHE HAD A PERMANENT BACK INJURY
    II. THE COURT ERRED IN FAILING TO CONSIDER
    THAT THE DEFENDANT WAS NOT PREJUDICED BY
    PROPER APPLICATION OF THE DISCOVERY RULE
    7                                  A-3269-16T2
    III. THE COURT ERRED IN FAILING TO CONSIDER
    THAT THE DEFENDANT WAIVED THE STATUTE OF
    LIMITATIONS DEFENSE BY LITIGATING THE CASE
    THROUGH COMPLETION OF DISCOVERY TO THE EVE
    [OF] TRIAL
    Plaintiff's third point is without merit. Defendant timely
    asserted the statute of limitations in its answer.        Further,
    defendant needed to conduct discovery in order to develop evidence
    in support of the motion, and defense counsel reminded plaintiff's
    counsel of the defense during discovery.    See Cipriani Builders,
    Inc. v. Madden, 
    389 N.J. Super. 154
    , 173-74 (App. Div. 2006).
    However, we agree with plaintiff that Dr. Kemps' September
    28, 2012 report was the first concrete information she received
    suggesting that Dr. O'Shea made a mistake in performing the
    surgery.     None of the other information defendant cites was
    reasonably likely to inform either plaintiff or her workers'
    compensation attorney that Dr. O'Shea had done anything wrong.
    "[W]here a plaintiff knows of an injury, but fault is not
    self-evident or implicit in the injury itself, it must be shown
    that a reasonable person would have been aware of such fault in
    order to bar the plaintiff from invoking the discovery rule."
    Martinez v. Cooper Hospital-Univ. Med. Ctr., 
    163 N.J. 45
    , 55
    (2000).    "A discovery rule analysis does not rise or fall on the
    personal characteristics of plaintiffs, but on the circumstances
    8                         A-3269-16T2
    in    which    they    find    themselves       and    their   responses        to     those
    circumstances."         
    Id. at 56.
    In     this     case,    plaintiff       was    involved      in    a    workers'
    compensation         case   that   went    on    for    years.       The       source       of
    plaintiff's various medical problems was by no means clear or
    self-evident.           Dr.    O'Shea     herself      told    plaintiff       that       her
    persistent pain could be attributed to the normal healing process.
    The    insurance       company     referred      plaintiff      to   many      different
    doctors, each one trying to determine the cause of her persistent
    back    pain,    leg    pain,    and    other    symptoms.        Until     Dr.       Kemps'
    September 28, 2012 report, none of the doctors suggested that Dr.
    O'Shea was at fault.               Plaintiff's expert report supports an
    inference that the workers' compensation system itself tended to
    obscure the problem, by compartmentalizing plaintiff's care among
    many different doctors, none of whom took a holistic or global
    view of her health condition.
    We also agree with plaintiff that there is no evidence that
    defendant would be prejudiced by application of the discovery
    rule.       See 
    Lopez, 62 N.J. at 275-76
    .              Defendant did not present
    any evidence of prejudice through the passage of time. The medical
    records themselves document plaintiff's condition before, during
    and after the surgery.             In her deposition, Dr. O'Shea did not
    evince any lack of memory as to pertinent events.                               Although
    9                                        A-3269-16T2
    defendant had not yet served an expert report, fact discovery had
    been completed and the case had a trial date, at the time the
    court dismissed the complaint.
    At this point, the issue is not whether plaintiff has a
    meritorious case or whether she is likely to prevail at trial.
    The only issue is whether she should have her day in court or
    whether   her   complaint   should   be   barred   by   the   statute    of
    limitations. We conclude that plaintiff is entitled to the benefit
    of the discovery rule.      Accordingly, we reverse the orders on
    appeal, reinstate the complaint, and remand this case to the trial
    court.
    Reversed and remanded.     We do not retain jurisdiction.
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