(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 appeal and that in Gallagher v. Burdette-Tomlin Medical Hospital, ____ 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.
Pia Mancuso is a breast cancer victim whose relevant mammography history began in 1988. At that time,
when Mancuso was thirty seven years old, two routine mammograms were read by Dr. Beinart as showing a benign
cyst in her right breast. Subsequently, in 1991, she had another mammogram in anticipation of undergoing a
hysterectomy. The films of the two prior mammograms were sent to the radiologist interpreting the 1991 film. In
the 1991 film, the radiologist observed and noted “ovoid densities” in Mancuso's right breast and cautioned the
surgeon, Dr. Neckles, to order follow-up studies within four months. No one informed Mancuso of any
abnormalities in the mammogram films or of the advice to Dr. Neckles to follow-up.
In July 1992, Mancuso had another mammography, which disclosed the onset of cancer. By December
1992, because of the extent of her tumor and its spread, Mancuso endured bone marrow transplant, chemotherapy,
and radiation. At around this time, she learned for the first time of the abnormalities shown in the 1991 pre
hysterectomy film and of the radiologist's recommendation of a four-month follow-up.
Subsequently, Mancuso consulted an attorney regarding Dr. Neckles' failure to follow-up. In June 1994,
the attorney received an expert medical report indicating that Neckles committed medical malpractice when he failed
to order follow-up studies. Mancuso then filed suit against Dr. Neckles in July 1994 within two years of December
1992, when she learned of the abnormalities in the 1991 films and of the radiologist's recommendation for follow
up.
In April 1996, Dr. Neckles' medical expert submitted a report expressing the opinion that the 1989
mammogram showed a possible malignancy. Thereafter, in November 1996, Mancuso's attorney retained a new
medical expert who reported that a possible malignancy was evident in the 1989 mammographic films and that Dr.
Beinart, who interpreted the films, deviated from accepted standards of radiological care. In July 1997, Mancuso
filed an amended complaint to include Dr. Beinart as an additional defendant.
The trial court dismissed Mancuso's complaint against Dr. Beinart on the basis that the statute of limitations
had run. The Appellate Division affirmed the Law Division's ruling, concluding that a reasonable person in
Mancuso's position should have been aware that persons (including any of the radiologists who read the
mammograms) other than Dr. Neckles could have been responsible for the delayed diagnosis.
The Supreme Court granted Mancuso's petition for certification.
HELD: Because Mancuso was reasonably unaware that her advanced cancer may have been due in part to the
negligence of Dr. Beinart in interpreting her earlier mammography films, she may properly invoke the discovery rule
to begin an action against him beyond two years after his alleged malpractice.
1. The essential purpose of the discovery rule is to avoid the harsh results that otherwise would flow from
mechanical application of a statute of limitations. Thus, the doctrine postpones the accrual of a cause of action so
long as a party reasonably is unaware either that he or she had been injured, or that the injury is due to the fault or
neglect of an identifiable individual or entity. (pp. 2-3)
2. Statutes of limitation, which are primarily statutes of repose, are designed to stimulate litigants to pursue their
actions diligently. (pp. 3-4)
3. In order to start the statute of limitations running in the 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 the condition claimed and the physician's conduct. Thus, the nature of the information
available to the injured party becomes relevant. (pp. 8-11)
4. The nature of the information Mancuso possessed before April 1996, when she learned of Dr. Neckles' expert's
opinion, did not suggest that the spread of her cancer may have been due to the fault of Dr. Beinart. (pp. 11-14)
5. When a patient has relied on competent expert advice that one or more of her treating physicians did not
contribute to the patient's injuries, later assertions to the contrary by a competent expert would then provide the basis
for an actionable claim. However, in order to apply the discovery rule, it must be shown that a defendant has not
been unfairly prejudiced by the delay. (pp. 14-15)
6. Although Dr. Neckles has died, his testimony is not crucial to this inquiry inasmuch as Mancuso's claim involves
the proper interpretation of mammographic films already in existence. Thus, there is no unfair prejudice by the delay
in the filing of the complaint against him. (p. 15)
Judgment of the Appellate Division is REVERSED and the complaint is REINSTATED and
REMANDED to the Law Division.
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-
90 September Term 1998
PIA MANCUSO and LENNY
MANCUSO, her husband,
Plaintiffs-Appellants,
v.
SPERO NECKLES, M.D., by PETER
J. NECKLES, ADMINISTRATOR OF
THE ESTATE OF SPERO NECKLES;
KARL G. KLINGES, M.D., DAVID
G. BUTLER, M.D., JAMES C. VAN
ELSWYK, M.D., SPERO NECKLES,
M.D., PROFESSIONAL
ASSOCIATION also known as
DRS. KLINGES, BUTLER, VAN
ELSWYK, NECKLES, P.A.;
HERBERT A. GOLDFARB, M.D.;
HERBERT A. GOLDFARB M.D.,
P.A.; MONTCLAIR IMAGING
CENTER; STEVEN SIRECI, M.D.
and JOHN DOE 6 through 7
(being fictitious names, true
names presently unknown),
Defendants,
and
CLIFFORD BEINART, M.D.,
Defendant-Respondent.
Argued November 8, 1999-- Decided February 16, 2000
On certification to the Superior Court,
Appellate Division, whose opinion is
reported at
316 N.J. Super. 128 (1998).
Alfred D. Dimiero argued the cause for
appellants (Mella and Dimiero, attorneys).
William S. Mezzomo argued the cause for
respondent (McDonough, Korn, Eichhorn &
Boyle attorneys; James R. Korn, of counsel).
William L. Gold submitted a brief on behalf
of amicus curiae, Association of Trial
Lawyers-New Jersey (Brown & Gold,
attorneys).
The opinion of the Court was delivered by
O'HERN, J.
This appeal and that in Gallagher v. Burdette-Tomlin Medical
Hospital, ___ N.J. ___ (2000), also decided today, present
difficult exercises in the application of the discovery rule.
Each case arises in the context of a claim for medical
malpractice.
"The history and principles underlying the discovery rule
have been examined by us on numerous occasions." Abboud v.
Viscomi,
111 N.J. 56, 62 (1988)(citing Vispisiano v. Ashland
Chem. Co.,
107 N.J. 416, 425-27 (1987)).
Suffice it to say that the rule's "essential
purpose * * * is to avoid harsh results that
otherwise would flow from mechanical
application of a statute of limitations."
[Vispisiano, supra, 107 N.J.] at 426.
Accordingly, the doctrine "postpon[es] the
accrual of a cause of action" so long as a
party reasonably is unaware either that he
[or she] has been injured, or that the injury
is due to the fault or neglect of an
identifiable individual or entity. Id. at
426-27; accord Lynch v. Rubacky,
85 N.J. 65,
70 (1981); Lopez v. Swyer, [
62 N.J. 267, 274
(1973)]. Once a person knows or has reason
to know of this information, his or her claim
has accrued since, at that point, he or she
is actually or constructively aware "of that
state of facts which may equate in law with a
cause of action." Burd v. New Jersey Tel.
Co.,
76 N.J. 284, 291 (1978).
[Abboud v. Viscomi, supra, 111 N.J. at
62-63.]
The linchpin of the discovery rule is the unfairness of barring
claims of unknowing parties. Statutes of limitations are
primarily statutes of repose. They are designed to stimulate
litigants to pursue their actions diligently.
They penalize dilatoriness and serve as
measures of repose. * * * When a plaintiff
knows or has reason to know that he [or she]
has a cause of action against an identifiable
defendant and voluntarily sleeps on his [or
her] rights so long as to permit the
customary period of limitations to expire,
the pertinent considerations of individual
justice as well as the broader considerations
of repose, coincide to bar his [or her]
action. Where, however, the plaintiff does
not know or have reason to know that he [or
she] has a cause of action against an
identifiable defendant until after the normal
period of limitations has expired, 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) (citation omitted).]
To reach a just accommodation of these considerations,
courts have developed the so-called "discovery" principle adopted
first in New Jersey in Fernandi v. Strully,
35 N.J. 434 (1961).
1989 The patient, Pia Mancuso, undergoes two routine mammograms. The radiologist, Dr. Beinart, reads them as showing a benign cyst in the patient's right breast. None. 1991 The patient has a mammogram anticipatory to an hysterectomy. The patient arranges to have the 1988/1989 films sent to Dr. Sireci, the radiologist interpreting the 1991 film. Dr. Sireci interprets the 1991 film and reviewed the 1988/1999 films for comparison. The radiologist observes, in the 1991 films,“ovoid densities” (nodules or lesions) in the patient's right breast and cautions the surgeon, Dr. Neckles, to order follow-up studies within four months. None. The patient was not informed of any abnormalities in the mammogram films or of the advice to Dr. Neckles. July 1992 The patient has a mammogram that discloses the onset of cancer. The radiologist's report indicated that the cyst identified in the 1988/1989 films had not changed but that a disturbance in the same area revealed suspected malignancy. Later tests revealed that the tumor was cancerous and had spread to the lymph nodes. None.
1992 Because of the extent of her tumor and its spread, the patient endures bone marrow transplant and months of chemotherapy. For the first time, the patient learns of the abnormalities shown in the 1991 pre hysterectomy film and the radiologist's recommendation of a four-month follow-up. June 1993 The patient consults an attorney because of her concern about Dr. Neckles' failure to follow up. June 1994 The attorney submits all the patient's medical reports to a qualified medical expert. The expert reports that medical malpractice took place in 1991 when Dr. Neckles failed to order follow-up studies. July 1994 The attorney files suit against Dr. Neckles (the physician identified by the patient's expert as the physician whose fault had caused the patient's cancer to spread), his medical partners and a number of John Doe defendants. No indication of fault other than on the part of Dr. Neckles whom the patient has sued within the two years of December 1992 - the date when she was informed that his fault may have caused the cancer to spread. April 1996 Dr. Neckles' expert witness submits a report that expresses an opinion that the 1989 mammogram showed a possible malignancy.
The patient for the
first time is informed
that Dr. Beinart may
have failed to read
the 1989 mammogram
correctly.
November
1996
July
1997
The patient's attorney
retains a new expert who
reports that a possible
malignancy was evident in
the 1989 mammographic films
and that Dr. Beinart who
interpreted the films
“deviated from accepted
standards of radiological
care.”
The patient files an amended
complaint to include Dr.
Beinart as an added
defendant.
The trial court dismissed plaintiff's complaint against Dr.
Beinart on the basis that the statute of limitations had run.
The Appellate Division affirmed the Law Division's ruling,
concluding that:
A reasonable person in plaintiff's position
should have been aware that her expert's
opinion was not necessarily the last word on
the subject of who might have done her wrong.
In 1992, plaintiff knew of her injury, the
increase in the cancer caused by a delayed
diagnosis, and she knew that it had been
possibly caused by the negligence of another.
A reasonable person would have appreciated
that the universe of possible others included
any of the radiologists who had read the
mammograms. Dr. Beinart was clearly within
that universe. Although plaintiff did not
know him by name, she had his reports and
mammograms, and she could have as easily
identified him by name in 1992 or 1993 as she
did in 1997.
[Mancuso, supra, 316 N.J. Super. at 134-35.]
In reviewing the precedential value of the Mancuso decision,
the Appellate Division panel in Gallagher, supra, reasoned
otherwise:
Mrs. Mancuso was not a physician or a
radiologist and had no particular skill or
ability to read a mammogram. She also had
absolutely no symptoms following the original
mammograms. When, several years later, she
found that her cancer was advanced, she went
to a lawyer in a timely fashion and engaged
an expert to review her records, including
the 1988 and 1989 mammograms to determine
whether her injury was the fault of another.
Her expert found malpractice in the 1991
interpretation but none in the 1988 and 1989
readings. Mrs. Mancuso thus had absolutely no
reason to doubt the 1988 and 1989 mammograms
which were not followed by any symptoms, and
which were taken and interpreted by one
expert and found by a different expert, hired
for litigation purposes, to be beyond
reproach.
[318 N.J. Super. at 498-99.]
The question for decision is which is the correct application of the discovery rule. The guiding principles for decision were perhaps best set forth in Vispisiano, supra, 107 N.J. 416. Justice Clifford, a watchful guardian of consistency in the Court's discovery rule doctrine, concurred in the substantive analysis set forth in that opinion. Id. at 438 (Clifford, J., concurring). The Court explained that so long as
the appropriate time for accrual of a cause of action for “discovery rule” purposes is when “the injured party discovers, or by the exercise of reasonable diligence and intelligence, should have discovered[,] that [he or she] may have a basis for an actionable claim,” Lopez v. Swyer, supra, 62 N.J. at 272, then the nature of the information necessary and the quality of the requisite state of mind will[,] of course[,] vary from case to case, and more than that, from type of case to type of case.
[Id. at 434.]
This “type of case” involving medical malpractice requires
special focus on the “nature of the information” possessed by the
claimant. Vispisiano explained that cases 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. Ibid. (citing Viviano v. CBS, Inc.,
101 N.J. 538 (1986)). 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.” Ibid. 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 . . . .” Ibid.
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.
The Vispisiano Court drew a parallel to Mancuso v. Mancuso,
209 N.J. Super. 51 (App. Div. 1986). In that case, the Appellate
Division reasoned that the relationship between trauma and the
onset of Parkinson's Disease “is a matter of such highly
specialized medical knowledge that plaintiff cannot be reasonably
chargeable with not having made that connection until she was so
advised by the Lahey Clinic neurologist just a month after the
running of the statute.” Id. at 58.
By this, the Vispisiano Court did not mean to suggest that
the plaintiff must have an expert report in hand before the
statute of limitations will commence to run. See Burd, supra, 75
N.J. at 298-99 (Pashman, J., dissenting). Rather, the Court
simply wished to stress the nature of the information available
to the injured party. Thus, for example, in Apgar v. Lederle
Lab.,
123 N.J. 450, 455 (1991), the Court held time-barred the
claim of one who knew that her teeth had been discolored and,
based on information from several dentists (reasonable medical
support), surmised that the medication that she had taken as a
child had caused the staining.
Applying these principles, we are satisfied that Pia Mancuso
was reasonably unaware, until the 1996 deposition, that her
injury was possibly due to the fault of Dr. Beinart. The “nature
of the information” that she possessed did not suggest that the
spread of her cancer may have been due to the fault of Dr.
Beinart. In fact, two sets of medical professionals had
confirmed that Dr. Beinart's initial diagnosis of a benign cyst
in her right breast was correct. Indeed, Pia Mancuso received
years of post-operative care from physicians at the world
renowned Memorial Sloan Kettering Cancer Center. Not one of
those physicians alerted her to the possibility of fault on
behalf of Dr. Beinart. The “quality of the requisite state of
mind” that she possessed appeared blameless. Unlike the
plaintiff in Apgar, supra, Pia Mancuso did not suspect, much less
have reason to believe, that she may have been injured by the
conduct of Dr. Beinart.See footnote 11
We thus agree that, as in Lynch v. Rubacky, supra, “the
shortcoming of the determination [of the court] below rests not
so much upon the facts as determined by the trial court as upon
the legal significance of those facts under the discovery rule.”
85 N.J. at 70; see also Vispisiano v. Ashland Chem. Co., supra,
107 N.J. at 432 (indicating that the Court's “disagreement with
the trial court . . . [was] not directed at its findings of fact
but rather at the significance to be attached to those facts.”).
Statutes of limitation “penalize dilatoriness and serve as
measures of repose.” Farrell, supra, 62 N.J. at 115. Plaintiff
was not dilatory. Plaintiff did “not know or have reason to know
that [she] ha[d] a cause of action against an identifiable
defendant until after the normal period of limitations had
expired.” Ibid. Could or should she have insisted that her
attorney seek further experts, and if so, how many? Lawyers
retaining expert witnesses do not target the expert on a
particular defendant, theory or cause of action. They seek the
best advice possible. Both plaintiff and her attorney were then
constrained under the Rules of Professional Conduct stating that
“[a] lawyer shall not bring or defend a proceeding, nor assert or
controvert an issue therein unless the lawyer knows or reasonably
believes that there is a basis for doing so that is not frivolous
. . . .” R.P.C. 3.1. Parties must also comply with the
"Frivolous Litigation Statute." N.J.S.A. 2A:15-59.1 penalizes
parties conducting “frivolous litigation” and compensates those
parties victimized by such actions brought “in bad faith, for the
purpose of delay and harassment.” Deutch & Shur, P.C. v. Roth,
284 N.J.Super. 133, 139 (Law Div. 1995).
That ethical requirement of a good faith belief in an
actionable claim is reinforced by the recent enactment of the
Affidavit of Merit Statute. N.J.S.A. 2A:53A-27. Within 60 days
of filing a professional malpractice action, a plaintiff must
“provide each defendant with an affidavit of an appropriate
licensed person that there exists a reasonable probability that
the care, skill or knowledge exercised or exhibited in the
treatment, practice or work that is the subject of the complaint,
fell outside acceptable professional or occupational standards or
treatment practices.” Cornblatt v. Barow,
153 N.J. 218, 228
(1998). Thus, in addition to filing the action within two years
of its accrual, a claimant must also have in hand or be able to
obtain within 60 days the expert's opinion pursuant to the
Affidavit of Merit Statute; otherwise, the claim is precluded.
Realistically, most attorneys and parties will want to have the
report in hand before filing the suit.
We are thus satisfied that when a patient has relied on
competent expert advice that one or more of her treating
physicians did not contribute to the patient's injuries, later
assertions to the contrary by a competent expert would then
provide the “basis for an actionable claim.” Lopez, supra, 62
N.J. at 272. Of course, this is but the start, not the end of
the inquiry. In order to apply the discovery rule, it must be
shown that a defendant has not been unfairly prejudiced by the
delay. Id. at 276.
It may . . . be unjust . . . to compel a
person to defend a law suit long after the
alleged injury has occurred, when memories
have faded, witnesses have died and evidence
has been lost. After all, statutes of
limitations are statutes of repose and the
principal consideration underlying their
enactment is one of fairness to the
defendant.
[Id. at 274.]
In this case, because the claim involves the proper
interpretation of mammographic films, we are satisfied that the
requisite finding of no prejudice is made. The issue is quite
discrete and involves the analysis or reading of x-ray
photographs already in existence. Although Dr. Neckles has died,
his testimony is not crucial to this inquiry.
The judgment of the Appellate Division is reversed.
Plaintiff's complaint is reinstated. The matter is remanded to
the Law Division.
CHIEF JUSTICE PORITZ and JUSTICES GARIBALDI, STEIN, COLEMAN,
and VERNIERO join in JUSTICE O'HERN's opinion. JUSTICE LONG did
not participate.
NO. A-90 SEPTEMBER TERM 1998
ON APPEAL FROM
ON CERTIFICATION TO Appellate Division, Superior Court
PIA MANCUSO and LENNY MANCUSO, her husband,
Plaintiffs-Appellants,
v.
SPERO NECKLES, M.D., by PETER J. NECKLES, ADMINISTRATOR
OF THE ESTATE OF SPERO NECKLES; KARL G. KLINGES, M.D.,
DAVID G. BUTLER, M.D., JAMES C. VAN ELSWYK, M.D., SPERO
NECKLES, M.D., PROFESSIONAL ASSOCIATION also known as DRS.
KLINGES, BUTLER, VAN ELSWYK, NECKLES, P.A.; HERBERT A.
GOLDFARB, M.D.; HERBERT A. GOLDFARB M.D., P.A.; MONTCLAIR
IMAGING CENTER; STEVEN SIRECI, M.D. and JOHN DOE 6 through 7
(being fictitious names, true names presently unknown),
Defendants,
and
CLIFFORD BEINART, M.D.,
Defendant-Respondent.
DECIDED February 16, 2000
Chief Justice Poritz PRESIDING
OPINION BY Justice O'Hern
CONCURRING OPINION BY
DISSENTING OPINION BY
Footnote: 1 1 The fictitious defendant rule does not apply in this
setting. That rule applies when one reasonably suspects that
others (such as the manufacturers of a component part) may have
injured him or her but simply does not know the name of the
person or party suspected.
We have construed Rule 4:26-4 to permit a
plaintiff who institutes a timely action
against a fictitious defendant to amend the
complaint after the expiration of the statute
of limitations to identify the true
defendant. In so construing the Rule, we
recognized that an amended complaint
identifying the defendant by its true name
relates back to the time of filing of the
original complaint, thereby permitting the
plaintiff to maintain an action that, but for
the fictitious-party practice, would be time
barred.
[Viviano v. CBS, Inc.,
101 N.J. 538, 548
(1986) (citing Farrell v. Votator Div. of
Chemetron Corp.,
62 N.J. 111, 120-23 (1973).]
The identification of the defendants in this case was always
known to plaintiff and therefore, the rule does not come into
play.