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http://njlaw.rutgers.edu/collections/courts/appellate/a1949-15.opn.html

By leave granted, defendants Christopher P. Muenzen, M.D., and Christopher P. Muenzen, M.D., PA (collectively, defendant), appeal from the Law Division's December 1, 2015 order denying partial summary judgment based on the statute of limitations (SOL) applicable to the New Jersey Survivor Act (the Survivor Act), N.J.S.A. 2A:15-3.1 For purposes of our review, we consider the motion record in a light most favorable to plaintiff, Debra Warren, who brought suit individually and as executrix of the estate of her late husband, Robert Warren. Steinberg v. Sahara Sam's Oasis, LLC, 226 N.J. 344, 366 (2016); R. 4:46-2c.

We set forth the legal framework. Although actions under the WDA and the Survivor Act "arise from the identical occurrence, i.e., the death of the plaintiff, they serve different purposes and are designed to provide a remedy to different parties." Smith v. Whitaker, 160 N.J. 221, 231 (1999) (citing Soden v. Trenton & Mercer Cty. Traction Co., 101 N.J.L. 393, 398-99 (E. & A. 1925)). "[T]he [WDA] provides to decedent's heirs a right of recovery for pecuniary damages for their direct losses as a result of their relative's death due to the tortious conduct of another." Aronberg v. Tolbert, 207 N.J. 587, 593 (2011). Any recovery passes directly to the decedent's heirs, not through his or her estate. Ibid. (citing Alfone v. Sarno, 87 N.J. 99, 107-08 (1981); see also N.J.S.A. 2A:31-4).

The intent of the Legislature was quite clear. Recognizing that the 2000 amendment to the WDA "applied to only one of the two types of civil actions that may be brought against persons responsible for a wrongful death[,]" the Legislature intended to "address[] the other type of civil action[,]" by "amend[ing] the 'Survivor[] Act' to eliminate the two-year statute of limitations for cases where the death resulted from murder, manslaughter or aggravated manslaughter and, thus, conform this action to the provisions of [the WDA]." Senate Judiciary Committee, Statement to S. 2763 (May 18, 2009) (emphasis added); see also Assembly Judiciary Committee, Statement to A. 4158 (Jan. 4, 2010) (noting the bill was intended to "address[] th[e] oversight" when the WDA was amended in 2000 "by eliminating the [SOL] for certain actions brought under the 'Survivor[] Act'") (emphasis added).

A.

The motion judge determined the SOL began to run in October 2009, which was when Robert knew or should have known that defendant's alleged failure to warn him earlier of the significance of the elevated PSA reading gave rise to a claim for medical negligence. As a result, plaintiff's suit should have been brought by October 2011 at the latest, but it was not filed until January 2013. Plaintiff argued the plain language of the Survivor Act meant her claim was timely, because it was filed within two years of Robert's death. The judge rejected that contention because accepting plaintiff's literal reading would yield an absurd result — "[c]laimants would be filing lawsuits years after the cause of action accrued and . . . the [SOL] would be inutile and . . . incompatible with the legislative design."

Defendant argues that as a result of the 2009 Amendment, the Survivor Act is "internally inconsistent" because it limits the executrix's claims to those a decedent would have had if he had lived, but permits suit to be filed years thereafter, as long as a complaint is brought within two years of death. Defendant asserts the motion judge's interpretation of the statute fails to avert the absurd and unfair result that claims could be made by administrators and executors many years after the alleged tortious act that resulted in damages. Defendant urges us to consider the legislative history of the 2009 Amendment in order to properly construe the statute and ensure the Legislature's intent, which he argues was only to permit Survivor Act claims resulting from criminal homicides to be brought at any time.

Amicus Property Casualty Insurers Association of America reiterate defendant's contentions and further argues that the 2009 Amendment creates uncertainty for both insurers and insureds as to the coverage provided by their policies. Finally, the NJHA argues that proper construction of the Survivor Act requires consideration of not only N.J.S.A. 2A:14-2, but also N.J.S.A. 2A:14-1, the six-year SOL governing all claims for damages to real and personal property, and N.J.S.A. 2A:14-23.1, which tolls the operation of all statutes of limitation for six-months following death.

"An appellate court reviews an order granting summary judgment in accordance with the same standard as the motion judge." Bhagat v. Bhagat, 217 N.J. 22, 38 (2014) (citing W.J.A. v. D.A., 210 N.J. 229, 237-38 (2012); Henry v. N.J. Dep't of Human Servs., 204 N.J. 320, 330 (2010)). We "identify whether there are genuine issues of material fact and, if not, whether the moving party is entitled to summary judgment as a matter of law." Ibid. (citing Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995); R. 4:46-2(c)). We review the judge's interpretation of "the law de novo and owe no deference to the trial court . . . if [it has] wrongly interpreted a statute." Zabilowicz v. Kelsey, 200 N.J. 507, 512 (2009).

Under the construction of the Survivor Act urged by plaintiff, a libel, slander or malicious prosecution that occurred during the decedent's life would be actionable decades after the offending conduct, as long as it was filed within two years of death. Indeed, under plaintiff's interpretation of the 2009 Amendment, an action for personal injury that never resulted in death would be actionable decades later if brought by a plaintiff's estate within two years of his or her death. We are certain the Legislature never intended such absurd results when it amended the statute in 2009.

In a case bearing some factual similarities to this, we held that a medical malpractice claim, filed by a decedent more than two years after being diagnosed with melanoma and prosecuted by his executrix after his death, was time-barred by application of the SOL contained in N.J.S.A. 2A:14-2(a). Silverman v. Lathrop, 168 N.J. Super. 333, 334-36 (App. Div. 1979); see also Troum v. Newark Beth Israel Med. Ctr., 338 N.J. Super. 1, 27 (App. Div. 2001) (holding that the plaintiff's survival action was barred by the SOL where he failed to file a malpractice claim within two years of knowing a tainted blood product was administered during surgery); Lawlor v. Cloverleaf Mem'l Park, Inc., 101 N.J. Super. 134, 148 (Law Div. 1968) ("[U]nder the Survival Act, an action must be commenced by the decedent, or his estate, within two years of the alleged wrongful act."), rev'd on other grounds, 106 N.J. Super. 374 (App. Div. 1969), rev'd on other grounds, 56 N.J. 326 (1970).

For example, N.J.S.A. 2A:14-1 provides in pertinent part:

http://njlaw.rutgers.edu/collections/courts/appellate/a4939-14.opn.html

On June 19, 2007, plaintiff underwent spinal surgery performed by Dr. Zerbo, an orthopedic surgeon, and Dr. James Lowe, a neurosurgeon, under general anesthesia administered by Dr. Costabile. During the surgery, plaintiff suffered a tear to her pharynx that required subsequent surgical repair and resulted in a failure of the spinal surgery.

The court determined the claim was barred by the statute of limitations because plaintiff's initial complaint alleged she was injured as a result of the anesthesiologist's negligence, the available hospital records identified Costabile as the anesthesiologist, and plaintiff was not otherwise diligent in attempting to learn Costabile's identity before the limitations period expired. Because the court concluded plaintiff's claim was time-barred, it did not address Costabile's argument that she was entitled to a dismissal because plaintiff failed to serve an affidavit of merit. The court entered a February 17, 2012 order granting Costabile's summary judgment motion.

On appeal, plaintiff makes the following arguments:

The Trial Court Erred in Sanctioning Plaintiff's Counsel and Compelling Payment of Defendant Zerbo's Expert Cancellation Fees Because the Adjournment of the June 24, 2013, Trial Listing Was [] for Good Cause and a Just Excuse.

The Trial Court Erred in Granting Summary Judgment on Behalf of Dr. Costabile For Failing to File the Complaint Within the Applicable Statute of Limitations When Plaintiff Included Fictitious Parties Within The Complaint and The Court Permitted Plaintiff's Motion to Amend the Complaint Pursuant to [R.] 4:26-4 Upon Discovery of Dr. Costabile's Identity and Role in The Surgery.

To be sure, plaintiff's counsel should have communicated with the Camden County court and the trial court in this case about the potential scheduling conflict between the two matters. The record, however, also shows that plaintiff's counsel had been engaged in settlement negotiations in the Camden County matter, believed it was going to be resolved and would not interfere with the commencement of the trial here, and immediately requested the adjournment in this case when the settlement negotiations failed and jury selection began in Camden. The court was reasonably concerned with plaintiff's counsel lack of communication concerning the potential scheduling conflict, but we are not convinced the record supports a determination that plaintiff's adjournment request was without "just excuse" and was the result of a "failure to give reasonable attention to [this] matter." R. 1:2-4(a). We are therefore constrained to reverse the court's orders directing that plaintiff's counsel reimburse Rushton for any purported loss of income due to the trial adjournment.

In all significant respects, the circumstances here are identical to those presented in Matynska. The record shows plaintiff obtained her hospital medical records during the limitations period and they identified Costabile as the anesthesiologist. Moreover, as the motion judge aptly observed, plaintiff could have simply contacted the hospital to determine the identity of the anesthesiologist, but failed to do so. The record is also otherwise bereft of any evidence showing plaintiff acted diligently to determine the identity of Costabile during the limitations period. See Claypotch, supra, 360 N.J. Super. at 479- 80 (holding Rule 4:26-4 permits use of a fictitious name "only if a defendant's true name cannot be ascertained by the exercise of due diligence prior to filing the complaint"). The court correctly concluded plaintiff did not satisfy the "due diligence threshold" of Rule 4:26-4. Matynska, supra, 175 N.J. at 53. Therefore, plaintiff's claim against Costabile is barred by the statute of limitations.

any substantive arguments but relied solely on the reasoning of the motion court.

By Jon Lomurro and Abbott Brown

223 N.J.L.J. (2017)

The New Jersey Supreme Court has long been committed to the principle that a patient should be fully informed about the benefits and risks associated with medical treatment. Generally, a patient has a cause of action for the breach of the duty to obtain informed consent when:

(1) the treatment rendered was associated with a known risk, and

(2) plaintiff was not advised of the risk, and

(3) the risk occurred, and

(4) a reasonable person in the plaintiff’s position would have rejected the treatment.

See Model Jury Charge (Civil) 5.50C.

Significantly, the standard for disclosure is imposed by law and not medical consensus. Largey v. Rothman, 110 N.J. 204 (1988). The Largey Court held that the “breadth of disclosure” is measured by what it deemed to be “objective standard” established not by either the subjective standards or expectations of either the physician or patient. Instead, Largey instructed that “the law must set the standard for adequate disclosure,” and therefore, the standard for disclosure is to be determined by the trial court as a matter of law.

The doctrine of informed consent does not apply to the failure to diagnose a medical condition, the failure to offer the choice diagnostic testing or imaging, or to cases involving negligent treatment. See Eagel v. Newman, 325 N.J. Super. 467 (App. Div. 1999), Farina v. Kraus, 333 N.J. Super. 165 (App. Div. 2000) and Linquito v. Siegel, 370 N.J. Super. 21 (App. Div. 2004). Thus, meritorious informed consent cases tend to involve wrongful birth cases, “since each is premised upon the plaintiff’s right of self-determination,” Geler v. Akawie, 358 N.J. Super. 437, 460 (App. Div. 2003), see also Canesi v. Wilson, 158 N.J. 490 (1999), the failure to offer non-surgical treatment options, Caputa v. Antiles, 296 N.J. Super. 123 (App. Div. 1996), or cases involving elective surgery such as lasik or gastric bypass.

However, two recent Appellate Division cases have demonstrated that the doctrine of informed consent can be abused to confuse the issues, resulting in reversible error. In Ehrlich v. Sorokin, N. J. Super. (App. Div. 2017), the plaintiff suffered a perforation of her colon and peritonitis after an elective polypectomy. The plaintiff had a temporary ileostomy and had to undergo additional surgeries. The plaintiff filed suit, asserting only a negligence claim and not an informed consent claim. At trial, plaintiff moved to exclude use of the informed consent forms for the procedures, but the trial judge denied these motions. The defense counsel cross-examined the plaintiff about risks disclosed in the consent forms. The informed consent form was provided to the jury as part of its deliberation, and the jury found for the defendnat.

On appeal, the Appellate Division reversed, explaining that “the sole issue was whether defendant was negligent.” The Court agreed that “defendant misled the jury to believe consent was connected to the standard of care,” relying upon Eagel, supra and Brady v. Urbas, 111 A.3d 1155 (Pa. 2015).

[W]e are convinced the admission of the informed consent evidence in this matter, where plaintiff asserted only a claim of negligent treatment, constituted reversible error. The only issue at trial was whether defendant's use of the APC without a saline lift deviated from the standard of care. Plaintiff's acknowledgment of the risk for perforation had no bearing on this determination. Indeed, although negligent treatment and informed consent fall under the umbrella of medical negligence, our law clearly distinguishes the two claims, and they require different elements of proof. See Newmark-Shortino, supra, 427 N.J. Super. at 304. We therefore conclude the informed consent evidence was irrelevant to the issue presented at trial, N.J.R.E. 401, and should have been excluded on plaintiff's motion in limine.
The Appellate Division explained that informed consent form “had the capacity to mislead the jury, N.J.R.E. 403, thereby making it capable of producing an unjust result. R. 2:10-2.” The Court would not even permit the informed consent form to be used during cross-examination to "counter plaintiff's testimony on direct examination that [defendant] gave plaintiff absolutely no information about her condition and treatment."

The same conclusion was reached by a different panel of the Appellate Division in Granovsky v. Chagares, A-0090-15 (App. Div. 2017). In this case, the defendant performed a laparoscopic cholecystectomy and while doing so unknowingly severed the common bile duct. The plaintiff had to undergo a Roux-en-Y hepaticojejunostomy to repair the injury. Once again, the plaintiff only asserted that the defendant was negligent in performing the procedure. The plaintiff did not assert a claim for breach of the duty to provide informed consent. Plaintiff's counsel also moved to exclude evidence of informed consent at trial. A motion judge granted this motion in advance of trial, but at trial the trial judge permitted evidence of the informed consent information to be provided to the jury. The jury found for the defendant. In reversing, the Granovsky panel concurred with the panel in Ehrlich, supra, concluding that admitting evidence of the informed consent forms was reversible error. The Granovsky panel observed that the trial judge permitted (1) the defendant to testify about his informed consent discussion, (2) one defense expert to testify regarding his informed consent form and what he tells patients, (3) a second defense expert to testify that a “bile duct injury is part of every gallbladder surgeon's consent form,” (4) a subsequent treating surgeon to testify about his consent form and discussion with his patients; and (5) the cross examination of plaintiff's expert regarding what he informs patients about the risk of an injury to the bile duct during a laparoscopic cholecystectomy. The ain Granovsky panel explained that an informed consent claim is “is separate and distinct from a cause of action predicated on a physician's breach of a standard of care,” citing Matthies, supra. Informed consent is not based upon a claim the defendant was negligent, citing Eagel, supra. The duty of providing informed consent is based upon “the failure to have provided the patient with adequate information regarding the risks of a given treatment or with adequate information regarding the availability of alternative treatments and the comparative risks and benefits of each." The Granovsk Court concluded:

We agree with the reasoning of Ehrlich and follow it here. Plaintiff's knowledge of the risk of bile duct injury in the course of a laparoscopic cholecystectomy is entirely irrelevant to whether defendant performed the procedure in accordance with the applicable standard of care. . .We reject defendant's argument that the informed consent evidence could assist in either establishing the standard of care for the procedure or bolstering his claim that plaintiff's transected bile duct resulted from a recognized complication of the procedure and not negligence

.

The Granovsk court emphasized that the defense counsel, who is almost certainly the most experienced member of the medical malpractice defense bar, “highlighted the testimony and defendant's advice to plaintiff regarding the risks repeatedly in his closing argument, asking the jury: “Do you think he's telling her, hey I may commit malpractice on you? Or is he telling her the possible risks, known risks and complication[s] which he has a duty to do which he did do.”

Although defendant undoubtedly has the right to defend himself against the complaint made against him, he does not have the right to set up a straw man argument against the complaint he would rather defend, diverting the jury's attention from the negligent treatment claim plaintiff brought, and improperly suggesting to the jury that having been advised of the possibility of bile duct injury and having consented to the surgery, plaintiff assumed the risk.

The law is now settled. Although a patient may consent to undergo a procedure which is associated with known, unavoidable risks in some cases, the patient does not consent to the negligent performance of that procedure. The fact that a patient signed a form acknowledging a risk does not exonerate a physician who negligently causes that risk to occur. It is now clear that defendants may not use an informed consent form to confuse a jury into believing that the fact that a risk is listed means that the doctor is not at fault.

Mr. Lomurro is a partner at the Freehold N.J. firm of Lomurro, Munson, Comer, Brown and Schottland. He is the co-author of New Jersey Medical Malpractice Law (7th Ed. 2018), and author of Digital Litigation: Litigation Technology for the Modern Practitioner (ICLE 2014); and TRY IT: With Friends: "A Trial Guide for New Jersey Lawyers" (ICLE 2010), and numerous articles about related topics.