SALVATORE H. DIDIO VS. ORTHOPAEDIC AND SPORTS MEDICINE, LLP (L-8030-15, BERGEN COUNTY AND STATEWIDE) (CONSOLIDATED)

NOT FOR PUBLICATION WITHOUT THE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
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NOS. A-3894-17T1
A-4078-17T1
SALVATORE H. DIDIO,
Plaintiff-Appellant,
v.
ORTHOPAEDIC AND SPORTS
MEDICINE, LLP, and DR. YAIR
D. KISSIN, M.D.,
Defendants,
and
KRISTY SAWICKI, P.A.,
Defendant-Respondent.
_____________________________
SALVATORE H. DIDIO,
Plaintiff-Respondent,
v.
ORTHOPAEDIC AND SPORTS
MEDICINE, LLP, and DR. YAIR
D. KISSIN, M.D.,
Defendants,
and
KRISTY SAWICKI, P.A.,
Defendant-Appellant.
_____________________________
Submitted February 26, 2019 – Decided March 22, 2019
Before Judges Hoffman and Suter.
On appeal from Superior Court of New Jersey, Law
Division, Bergen County, Docket No. L-8030-15.
Donna H. Clancy, attorney for appellant Salvatore H.
Didio in A-3894-17 and respondent Salvatore H. Didio
in A-4078-17.
Rosenberg Jacobs Heller & Fleming, PC, attorneys for
respondent Kristy Sawicki, P.A. in A-3894-17 and
appellant Kristy Sawicki, P.A. in A-4078-17 (Douglas
F. Ciolek, of counsel and on the briefs).
PER CURIAM
In this medical negligence action, plaintiff Salvatore H. Didio appeals
from the April 6, 2018 Law Division order dismissing his complaint against
defendant Kristy Sawicki, P.A., a physician's assistant (P.A.), on the basis that
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2
it was filed after the statute of limitations had run. 1 Plaintiff contends the motion
judge erred in determining the accrual date of his cause of action and in failing
to conduct a Lopez2 hearing. Defendant appeals from an earlier trial court order
restoring plaintiff's complaint and reopening discovery.3 We affirm the order
dismissing plaintiff's complaint, and dismiss defendant's appeal as moot.
I
We review the pertinent facts. On August 28, 2013, plaintiff received Gel
One shots into his knees from defendant, to "relieve some of the pain in [his]
knee making it easier for him to walk" during an upcoming vacation. Defendant
began by cleaning plaintiff's right knee with alcohol. She then removed a pen
from her jacket pocket, causing plaintiff to ask, "What are you going to do with
that pen? Are you going to write on my knee?" Defendant responded that she
1
Plaintiff's complaint also named Orthopaedic and Sports Medicine, LLP and
Dr. Yair D. Kissin, M.D. as defendants. Since the claims against those
defendants were previously dismissed, and plaintiff does not challenge their
dismissal, we refer to P.A. Sawicki as defendant.
2
Lopez v. Swyer, 62 N.J. 267 (1973).
3
Since the parties' appeals were scheduled back-to-back on the same calendar,
we consolidate them for purposes of this opinion. Defendant's brief states she
withdraws her appeal as moot if this court affirms the order dismissing plaintiff's
complaint.
A-3894-17T1
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was going to press the pen in a closed position to make an indentation, marking
the spot where she would make the injection. Plaintiff's wife inquired about the
use of an imaging machine during the administration of the injection, and
defendant stated it was unnecessary. After defendant made the indentation with
the pen, she administered the injection. At his deposition, plaintiff stated he did
not feel "anything except for the needle going in."
Defendant then followed the same procedure and administered an
injection into plaintiff's left knee; however, this time plaintiff "felt pain" and
"the gel going around the joint." Plaintiff asked defendant "why [he] felt the
fluid going in, the gel going around [his] knee, and [why he] did not experien ce
that with the right knee." At their depositions, plaintiff and his wife both stated
that defendant said nothing in response to the question.
Plaintiff was able to arrive and leave the office without any assistance.
Later that evening, however, plaintiff's "right knee started swelling up and
started to get pain in it." Plaintiff at first "thought that [it] was normal" because
defendant "told [him] it would stiffen up," "[b]ut by the next day it was
unbearable."
On August 30, 2013, plaintiff returned to defendant's office on crutches
because he could not put weight on his swollen right knee. Dr. Kissin removed
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80 cc's of liquid from the knee, and stated that it looked like blood. According
to plaintiff, Dr. Kissin stated that the removal of fluid "should alleviate the pain,
[and he] should have no more problems." At this time, plaintiff "asked why [the
knee] was so red[,] and [defendant] said she may have nicked a vein when she
gave [p]laintiff the shot." Plaintiff's wife again mentioned the imaging machine,
thinking that it would have avoided such a problem; in response, defendant
stated "they don't use it in this office."
Over Labor Day weekend (August 31 to September 2, 2013), plaintiff and
his wife considered going to the emergency room because of continuing pain;
however, Dr. Kissin advised against it. According to plaintiff, "He was afraid
of them giving me an infection." On September 3, plaintiff returned to
defendant's office "in severe pain, his knee was very swollen again, and he
could[ not] put any pressure on it or walk on it." Dr. Kissin removed another 80
cc's of fluid from the knee, and this time "a creamy," "cloudy," and "milky"
color was extracted. Dr. Kissin stated that it could be an infection, which would
require surgery to have it "washed out." The specimen was sent to Quest
Diagnostics for testing.
Seeking a second opinion, plaintiff went to Dr. Gregory Montalbano's
office on September 4. Dr. Montalbano's associate, Dr. Daniel Savino,
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apparently received "some results" from Quest "showing that it was already a
possible septic staph infection." The next day, plaintiff returned to see Dr.
Montalbano, who "was able to retrieve more of the results and told [plaintiff]
that [he] would definitely need . . . surgery to clear the infection." Dr.
Montalbano performed the surgery that Friday, September 6, 2013. Plaintiff
remained in the hospital for the next five days. Since "the infection was very
severe and the [first surgery] didn't help enough," plaintiff underwent a second
surgery on September 20, 2013, and remained in the hospital for another five
days.
In their depositions, plaintiff and his wife stated that none of the doctors
involved speculated as to the cause of plaintiff's infection. However, they both
stated that they thought it was caused by defendant's injection of the gel shot.
During her deposition, plaintiff's wife stated that plaintiff "had gotten a severe
infection from the way that the shot was administered . . . ." The following
colloquy then occurred:
Q. Did any of your husband's treating physicians tell
you that his infection was from the gel shot
initiated by [defendant]?
A. I don't recall.
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Q. Okay. What information, if any, do you have for
stating that his severe infection was from her
injection?
A. Just from general knowledge, to know that you
should not have something taken out of your
pocket and put on someone else's skin that you're
administering a shot to.
Q. Okay. This is your general knowledge?
A. Yes.
....
Q. Would it be fair to say that back when you saw
Dr. Kissin on September 3[], 2013, you were
thinking that this issue your husband was having
was from the gel injection?
A. Yes.
Q. Did you have that discussion with your husband
at that time, that you thought that his issue on
September 3[], 2013, [was] due to the gel shot?
A. Yes.
On September 9, 2015, plaintiff filed the malpractice action under review,
claiming that defendant "failed to properly administer" the Gel One shot into his
right knee, causing it to become inflamed, and require surgery.
Following oral argument, the motion judge granted defendant's motion for
summary judgment, dismissing plaintiff's complaint on the basis that his claim
A-3894-17T1
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was barred by the statute of limitations. The judge found that during the initial
procedure, plaintiff questioned "defendant's use of [the] pen to make a mark on
the sterilized knee[,] and [he] was aware that she had done that with an unsterile
instrument." Plaintiff soon experienced "excruciating pain," returned to
defendant's office multiple times, and
continued to suffer problems [when] on . . . September
3[] milky fluid was removed. He was aware on or
before September 3[] that there was a possible infection
and . . . on September 4[] . . . . he saw Dr. Montalbano's
associate, Dr. Savino, [who] informed . . . plaintiff that
it was a possible staph infection . . . .
....
[O]n the date of the procedure . . . plaintiff suspected
that what . . . [defendant] was doing was not correct.
And combined with the immediacy of the infection I do
find that the statute started to run not later than
September 3[] . . . .
II
A two-year statute of limitations applies to claims for personal injuries.
N.J.S.A. 2A:14-2; Giannakopoulos v. Mid State Mall, 438 N.J. Super. 595, 610,
(App. Div. 2014). A cause of action for medical malpractice generally accrues
on the date of the alleged negligent act or omission. Szczuvelek v. Harborside
Healthcare Woods Edge, 182 N.J. 275, 281 (2005).
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Statutes of limitations create repose and are "practical and pragmatic
devices to spare the courts from litigation of stale claims, and the citizen from
being put to his [or her] defense after memories have faded, witnesses have died
or disappeared, and evidence has been lost." Fox v. Millman, 210 N.J. 401, 415,
(2012) (quoting Chase Sec. Corp. v. Donaldson, 325 U.S. 304, 314 (1945)).
When the statute of limitations expires before a plaintiff "[knows] or [has]
reason to know that he [or she] has a cause of action against an identifiable
defendant . . . the considerations of individual justice and the considerations of
repose are in conflict and other factors may fairly be brought into play." Farrell
v. Votator Div. of Chemetron Corp., 62 N.J. 111, 115 (1973).
To accommodate those considerations, our Supreme Court adopted the
discovery rule. Fernandi v. Strully, 35 N.J. 434, 450 (1961); see also
Szczuvelek, 182 N.J. at 281; Graves v. Church & Dwight Co., 115 N.J. 256, 257
(1989). The discovery rule postpones accrual of a cause of action until "the
injured party 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." Szczuvelek, 182 N.J. at 281 (alteration in original) (quoting
Lopez, 62 N.J. at 272 (internal quotation marks omitted)); see also Caravaggio
v. D'Agostini, 166 N.J. 237, 246 (2001) ("The question in a discovery rule case
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is whether the facts presented would alert a reasonable person, exercising
ordinary diligence, that he or she was injured due to the fault of another.").
When determining whether the injured party had knowledge of fault, the
law does not require that the person have a provable claim or even that the person
be aware of facts to suggest that fault is "probable," rather all that is required is
that the person be aware of facts which suggest the "possibility" of wrongdoing.
Savage v. Old Bridge-Sayreville Med. Group, PA, 134 N.J. 41, 248 (1993).
[K]nowledge of fault for purposes of the discovery rule
has a circumscribed meaning: it requires only the
awareness of facts that would alert a reasonable person
exercising ordinary diligence that a third party's
conduct may have caused or contributed to the cause of
the injury and that conduct itself might possibly have
been unreasonable or lacking in due care.
[Ibid.]
Here, plaintiff and his wife had suspicions regarding defendant's care
during the injection, as plaintiff questioned her on pressing the unsterile pen
onto his sterilized knee, while plaintiff's wife suggested the use of an imaging
machine during the administration of the injection. Plaintiff experienced severe
pain as early as the evening of the day he received the shot. Two days later,
defendant stated that she "may have nicked a vein" in plaintiff's knee. After
removing 80 cc's of liquid from the knee that day, Dr. Kissin stated it should
A-3894-17T1
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alleviate the pain, with no more problems. However, later that evening and
throughout the weekend, plaintiff continued to suffer severe pain, and
considered going to the emergency room.
On September 3, after removing another 80 cc's from the knee – this time
revealing "milky," "creamy," and "cloudy" liquid – Dr. Kissin stated it could be
an infection, which would require surgery to wash it out. The next day, plaintiff
visited Dr. Montalbano's office, and learned it was a possible septic staph
infection. Dr. Montalbano saw the knee on September 5, and determined that a
washout surgery was needed – the first surgery taking place September 6.
Significantly, plaintiff's wife stated in her deposition that she and plaintiff
discussed that they thought plaintiff's problems were caused by the gel shot
"before [they] saw Dr. Montalbano" on September 4. On September 5, Dr.
Montalbano concluded that plaintiff needed surgery. It is therefore clear that
plaintiff and his wife were aware of material facts relating to the existence and
origin of his injuries by September 3, and certainly no later than September 5,
significantly before the September 9 filing of plaintiff's complaint two years
later. Since we reach this conclusion while accepting everything plaintiff and
his wife said at their depositions as true, and while reviewing the record in a
light most favorable to plaintiff, we reject plaintiff's contention that the trial
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court erred in declining to conduct a Lopez hearing. See Lopez, 62 N.J. at 275(holding that "[w]here credibility is not involved" in resolving application of the
discovery rule, "affidavits, with or without depositions, may suffice").
To the extent not specifically addressed here, plaintiff's remaining
arguments are without sufficient merit to warrant discussion in a written
opinion. R. 2:11-3(e)(1)(E).
The trial court's summary judgment order is affirmed. Defendant's appeal
is dismissed as moot.
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