(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interests of brevity, portions of any opinion may not have been summarized).
Argued November 8, 1999 -- Decided February 16, 2000
O'HERN, J., writing for a unanimous Court.
This case, like Mancuso v. Neckles, _____ N.J. _____ (2000), also decided this date, involves the
application of the discovery rule to a claim of medical malpractice that would otherwise be barred by the statute of
limitations.
In May 1994, Anna Gallagher underwent surgery to alleviate an incontinence problem. The treatment
ultimately resulted in a debilitating condition of health and she has been rendered totally incontinent. Within days of
being discharged after her surgery, Gallagher visited the emergency room with bleeding, fever, chills, and an
elevated blood count. Thereafter, in early August 1994, because she was experiencing continued pain, Gallagher
consulted with the surgical team, which diagnosed her with acute low back syndrome and suggested that she consult
an orthopedist. Instead, Gallagher consulted her family physicians later that month, who admitted her to the hospital.
The family physicians then consulted with Drs. Phillips and Goldstein, Gallagher's after-care urologists,
who ordered a CT-scan. The CT-scan was read by Dr. Steeb, who reported the presence of osteomyelitis, an
inflammation of the bone in the surgical area. This infection allegedly was left untreated by Gallagher's after-care
physicians.
In September 1994, because Gallagher continued to experience pain and difficulty walking, Drs. Phillips
and Goldstein again admitted her to the hospital. They ordered another CT-scan and explored the surgical area,
draining a large, infected abscess. Cultures of the drainage uncovered the presence of three types of bacterial
infection. Drs. Phillips and Goldstein treated the infection with a six-week course of antibiotics.
In May 1995, Gallagher filed suit against the surgical team, the hospital, and various John Doe defendants.
She amended her complaint in September 1995, after receiving a report from her expert indicating that Dr. Steeb
failed to detect the abscess in the August 1994 CT-scan. In October, 1997, Dr. Steeb's defense expert (Dr. Jacobs)
was deposed, during which testimony he asserted that the August 1994 CT-scan revealed osteomyelitis, which
required treatment by Gallagher's after-care urologists, Drs. Phillips and Goldstein.
In December 1997, over three years after the August 1994 CT-scan that revealed the presence of the
osteomyelitis, Gallagher sought and was granted leave to amend her complaint to include her after-care urologists,
Dr. Phillips and Goldstein, as defendants. Thereafter, they moved to dismiss the complaint as not timely filed. The
trial court denied their motion and allowed Gallagher to invoke the discovery rule based on the delayed opinion of
Dr. Jacobs. The Appellate Division affirmed, concluding that Gallagher had no reason to question Drs. Phillips and
Goldstein until Dr. Jacobs testified in October 1997. Because she acted promptly thereafter, the Appellate Division
concluded, the belated opinion of Dr. Jacobs warranted Gallagher's invocation of the discovery rule.
The matter is before the Supreme Court as of right based on the dissent in the Appellate Division.
HELD: Because Gallagher exercised reasonable diligence and intelligence in asserting her claim against her after
care urologists once she became aware that her injury may have been caused by their malpractice, she may properly
invoke the discovery rule to begin an action against those physicians beyond two years after their alleged
malpractice.
1. For discovery rule purposes, the justification for a delayed claim will depend on the type of case involved. Cases
involving medical malpractice causation demand special attention because of the intrinsic hardship facing a potential
medical malpractice claimant in determining fault. (p. 7)
2. Statutes of limitations may run at different times for different defendants. (p. 8)
3. Before the deposition of testimony of Dr. Jacobs, Gallagher remained reasonably unaware that her injury was due
to the fault or neglect of Dr. Phillips and Goldstein, and she exercised reasonable diligence and intelligence in
asserting her claim against them thereafter. (p. 8)
4. Because of the discovery posture taken by the initial defendants in this case, it would be especially unfair to deny
Gallagher the benefit of the discovery rule. (pp. 9-10)
Judgment of the Appellate Division is AFFIRMED.
CHIEF JUSTICE PORITZ and JUSTICES GARIBALDI, STEIN, COLEMAN, and VERNIERO
join in JUSTICE O'HERN's opinion. JUSTICE LONG did not participate.
SUPREME COURT OF NEW JERSEY
A-
94 September Term 1998
ANNA GALLAGHER and THOMAS
GALLAGHER, h/w,
Plaintiffs-Respondents,
v.
BURDETTE-TOMLIN MEMORIAL
HOSPITAL; ALEXANDER M.
PAGNANI, M.D.; GENE J. BRAGA,
M.D.; PAGNANI-BRAGA UROLOGIC
ASSOCIATES, P.A.; ROBERT
STEEB, M.D.; WEST JERSEY
HOSPITAL SYSTEMS, - VOORHEES
DIVISION; SOUTH JERSEY
RADIOLOGY ASSOCIATES; W.
WEISBERG, M.D.; CAPE
EMERGENCY PHYSICIANS; MARK J.
TODT, M.D.; ROBERT J. MARO,
M.D.; JOHN DOES
1 TO 3; and
JOHN DOES ASSOCIATES
(business entities) 1,2,3 and
6,
Defendants,
and
HOWARD R. GOLDSTEIN, M.D.;
NEIL PHILLIPS, M.D.; and
UROLOGICAL PROFESSIONAL
ASSOCIATION,
Defendants-Appellants.
Argued November 8, 1999-- Decided February 16, 2000
On appeal from the Superior Court, Appellate
Division, whose opinion is reported at 318
N.J. Super. 485 (1999).
Melvin Greenberg argued the cause for
appellants (Greenberg Dauber Epstein &
Tucker and Stahl & DeLaurentis, attorneys).
Gregory P. Saputelli argued the cause for
respondents (Obermayer, Rebmann, Maxwell &
Hippel, attorneys; Mr. Saputelli and
Kimberly D. Sutton, on the brief).
William L. Gold argued the cause for amicus
curiae Association of Trial Attorneys-New
Jersey (Brown & Gold, attorneys; Mr. Gold
and Abbott S. Brown, on the brief).
Herbert J. Stern submitted a brief on behalf
of amicus curiae The Medical Society New
Jersey (Stern & Greenberg, attorneys).
The opinion of the Court was delivered by
O'HERN, J.
This case, like Mancuso v. Neckles, __ N.J. __(2000), also
decided today, involves the application of the discovery rule to
a claim of medical malpractice that would otherwise be barred by
the statute of limitations. The principles that we apply are set
forth in that opinion. Briefly stated, this case involves
surgery that was undertaken to alleviate a woman's incontinence
problem. The treatment resulted in a debilitating condition of
health. Anna Gallagher has been made totally incontinent. At
the time of these proceedings, she was under constant care to
alleviate her condition.
The question is whether the malpractice of certain of the patient's doctors brought about the bad result and whether she had timely filed a claim against them. The alleged deviations from accepted standards of care involved treatment of a post operative infection that developed into an abdominal abscess due to the lack of timely antibiotic therapy. The injury allegedly evolved as the result of a two-week delay in the treatment of the infection. The facts are more fully set forth in the reported opinion of the Appellate Division, 318 N.J. Super. 485 (App. Div. 1999). Here is the time line of the events:
1994
August 24,
1994
Experiencing continued pain,
the patient consults Drs.
Maro and Todt (the family
doctors). They admit her to
the hospital and consult with
Drs. Phillips and Goldstein
(the after-care urologists)
who order several tests,
including a CT-scan that is
read by Dr. Steeb.
Dr. Steeb reports the
presence of osteomyelitis, an
inflammation of the bone in
the surgical area. This was
the infection that was
allegedly left untreated by
the patient's after-care
physicians.
None
None as to the
after-care
urologists.
September
7, 1994
The patient continues to
experience pain and has
difficulty walking. The
after-care urologists re
admit the patient to West
Jersey Hospital. Another CT
scan is ordered.
The CT-scan
discloses a large
abscess alerting the
patient that
something had gone
drastically wrong.
September
8, 1994
The after-care urologists
explore the surgical area and
drain a large, infected
abscess. Cultures of the
drainage uncover three types
of bacterial infection that
the after-care urologists
treat with a six-week course
of antibiotic medication.
None.
May 1995
The patient files suit
against the surgical team,
Burdette-Tomlin Medical
Hospital and various John Doe
defendants.
September
1995
The patient's experts furnish
reports indicating
malpractice by the surgical
team and the emergency room
physicians for failure to
diagnose the developing
abscess. The experts also
assert that Dr. Steeb failed
to detect the abscess in the
August 1994 CT-scan.
The patient amends
her complaint to add
Dr. Steeb as a
defendant.
October
1997
Dr. Jacobs, a defense expert
for Dr. Steeb, was deposed.
The expert asserts that the
August 1994 CT-scan revealed
osteomyelitis that required
treatment by the patient's
after-care urologists.
The expert's
allegations of fault
alert the patient
that her after-care
urologists may have
committed
malpractice by not
treating the
osteomyelitis.
December
1997
The patient is granted leave
to amend her complaint to
join the after-care
urologists, Drs. Goldstein
and PhillipsSee footnote 11. The after-care
urologists move to dismiss
the complaint as untimely.
The trial court denied the after-care urologists' motion for
summary judgment and allowed the patient to invoke the discovery
rule based on the delayed opinion of Dr. Jacobs. The Appellate
Division affirmed the decision of the trial court concluding that
plaintiff “had absolutely no reason to question Drs. Goldstein
and Phillips until Dr. Jacobs testified in October of 1997. She
acted promptly thereafter . . . . [As a result,] the belated
opinion of Dr. Jacobs warranted [plaintiff's] invocation of the
discovery rule.” Gallagher, supra, 318 N.J. Super. at 500.
As explained in Mancuso v. Neckles, also decided today, for discovery rule purposes, the justification for a delayed claim will depend on the “type of case” involved. __ N.J. __ (____)(slip op. at ___)(quoting Vispisiano v. Ashland Chem. Co., 107 N.J. 416, 434 (1987)). This “type of case” involving medical causation demands special attention due to the intrinsic hardship facing a potential medical malpractice claimant in determining fault. The patient here had no reasonable basis to suspect that her crippling condition was caused by anything other than the original surgery. “Not only is the nature of the injury generally unclear, its very existence is frequently masked.” Vispisiano, supra, 107 N.J. at 434. Defendant insists that Baird v. American Optical, 155 N.J. 54 (1998), created a new bright-line discovery rule for medical malpractice cases that starts the statute of limitations running for all potentially responsible parties when a patient knows that she has been injured and knows or has reason to know that someone has probably been at fault. Defendant relies on the language in Baird: “The discovery rule prevents the statute of limitations from running when injured parties reasonably are unaware that they have been injured, or, although aware of the injury, do not know that the injury is attributable to the fault of another.” Id. at 66. We disagree that that generic statement was ever intended to mean that statutes of limitations could not run at different times for different defendants. An example will suffice to explain. Let us assume that a patient suffered a poor result from a knee replacement and started a suit against the surgeon for malpractice. Assume that more than two years after the initial surgery, the patient undergoes corrective surgery at which time it is discovered that an object was left in her knee by one other than the surgeon whom she had sued. Would such a claim be precluded by the language of Baird? We think not.
We agree with the court below that plaintiff exercised “reasonable diligence and intelligence” in asserting her claim. Lopez v. Swyer, 62 N.J. 267, 272 (1973). The benefit of the discovery rule should be available to this plaintiff who remained reasonably “unaware . . . that the injury [wa]s due to the fault or neglect of an identifiable individual or entity.” Abboud v. Viscomi, 111 N.J. 56, 62 (1988) (citing Vispisiano, supra, 107 N.J. at 426-27). No readily apparent indication of Drs. Phillips and Goldstein's potential contribution to the patient's medical deterioration materialized until Dr. Jacobs brought the failure to treat plaintiff's infection to light. Competent experts retained by her did not express any opinion on the care and treatment of plaintiff provided by Drs. Phillips and Goldstein.
The unfairness of denying plaintiff leave to amend her complaint was compounded in this case by the discovery posture taken by the initial defendants. Plaintiff filed suit in May 1995. Defendants pleaded by way of answer that others than they had caused plaintiff's injuries. Plaintiff promptly demanded, by way of interrogatories, to know the basis of those allegations. Defendants furnished no reasonable medical support for their contentions. Dr. Jacobs' report, furnished before the statute of limitations had expired, made no mention of the fault of the after-care physicians. Not until the statute of limitations had passed did Dr. Steeb's expert suggest the fault of the after-care physicians. Invoking the principles of Young v. Latta, 123 N.J. 584 (1991) (that require parties seeking to diminish their share of fault to “give prompt notice”), the trial court reasoned that it would be especially unfair to deny plaintiff the benefit of the discovery rule. Unlike a products-liability action in which one potentially responsible party may seek contribution from a jointly responsible party, it is almost never the case that one physician will seek contribution from another. Had Dr. Steeb, within the period of limitations, sought contribution from the after-care physicians as third-party defendants, Anna Gallagher could have asserted a timely claim against them under the “relating back” principles of Rule 4:9-3. Although plaintiff's ability to establish the actual fault of Drs. Phillips and Goldstein will depend on the proofs to be offered at trial, she should be given the opportunity to explore their potential liability as a cause of her injuries.
We affirm the Appellate Division judgment upholding the trial court's dismissal of defendants' motion for summary judgment.
CHIEF JUSTICE PORITZ and JUSTICES GARIBALDI, STEIN, COLEMAN,
and VERNIERO join in JUSTICE O'HERN's opinion. JUSTICE LONG did
not participate.
NO. A-94 SEPTEMBER TERM 1997
ON APPEAL FROM Appellate Division, Superior Court
ON CERTIFICATION TO
ANNA GALLAGHER and THOMAS GALLAGHER, h/w,
Plaintiffs-Respondents,
v.
BURDETTE-TOMLIN MEMORIAL HOSPITAL; ALEXANDER M.
PAGNANI, M.D.; GENE J. BRAGA, M.D.; PAGNANI-BRAGA
UROLOGIC ASSOCIATES, P.A.; ROBERT STEEB, M.D.; WEST
JERSEY HOSPITAL SYSTEMS, - VOORHEES DIVISION; SOUTH
JERSEY RADIOLOGY ASSOCIATES; W. WEISBERG, M.D.; CAPE
EMERGENCY PHYSICIANS; MARK J. TODT, M.D.; ROBERT J. MARO,
M.D.; JOHN DOES
1 TO 3; and JOHN DOES ASSOCIATES (business
entities) 1,2,3 and 6,
Defendants,
and
HOWARD R. GOLDSTEIN, M.D.; NEIL PHILLIPS, M.D.; and
UROLOGICAL PROFESSIONAL ASSOCIATION,
Defendants-Appellants.
DECIDED February 16, 2000
Chief Justice Poritz PRESIDING
OPINION BY Justice O'Hern
CONCURRING OPINION BY
DISSENTING OPINION BY
Footnote: 1 1 The patient was also allowed to amend her complaint to add the family doctors, Dr. Maro and Dr. Todt. During her deposition, expert Dr. Jacobs specifically expressed the opinion that the after-care and treatment of the patient by Dr. Maro and Dr. Todt was inadequate because they failed to treat the infectious osteomyelitis that Dr. Steeb identified in his August 24, 1994 report. While she did not specifically name Drs. Goldstein and Phillips, Dr. Jacob's opinion alerted the patient that Drs. Goldstein and Phillips' concurrent failure to treat the infection may have further contributed to the patient's problems.