A patient’s mere suspicion that surgery has gone awry is not enough to trigger the medical malpractice statute of limitations, a state appeals court ruled Wednesday in reinstating a suit.
The Appellate Division found the trial court wrongly applied a subjective standard in finding the suit time-barred and the discovery rule inapplicable.
Cases of complex medical causation require a “special focus on the nature of the information possessed by the claimant,” the judges said in Urban v. Naame, A-2596-11.
Since the existence of an injury is often masked in such cases, more than suspicion is required to start the running of the statute of limitations, they added.
Gloriana Urban broke her ankle at an Atlantic City casino on Dec. 10, 2007. Later that day, orthopedic surgeon Lawrence Naame performed an open reduction at AtlantiCare Regional Medical Center in Atlantic City.
Naame told Urban it went well and she would be able to walk without crutches in four to six weeks.
But a few weeks later, Urban still had ankle pain, though Naame assured her all was well. Her last visit with him was March 26, 2008.
Urban went to another doctor on April 18, 2008, and was told the ankle was not healing properly and she needed more surgery. She consulted a third doctor on June 16, 2008, and underwent surgery on Sept. 11, 2008.
On March 24, 2010, she sued Naame; his practice, Atlantic Bone and Joint Surgeons; and AtlantiCare Regional Medical Center.
They moved for summary judgment, contending that the statute of limitations began running the day of Naame’s surgery.
Urban claimed she was entitled to apply the discovery rule. Under Lopez v. Swyer, 62 N.J. 267 (1973), the discovery rule delays 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 may have a basis for an actionable claim.”
Atlantic County Superior Court Judge Joseph Kane held that the discovery rule did not apply. And he said the suit was filed too late, citing Urban’s deposition statement that she knew in February 2008 the doctor might have made a mistake.
On appeal, Judges Susan Reisner, Jonathan Harris and Richard Hoffman concluded that the discovery rule applied.
They said Kane had taken Urban’s testimony out of context and construed the evidence in the light least favorable to her. He also applied a subjective rather than an objective standard in determining when she knew enough to believe Naame had been negligent, the appeals court said.
The panel said the case was similar to Lynch v. Rubacky, 85 N.J. 65 (1981), where a patient did not learn her ankle surgery was unsuccessful until she sought a second opinion. There, the court held that the plaintiff’s dissatisfaction with her recovery did not, by itself, amount to the sort of objective notice that would have caused a reasonable person to suspect negligence.
The Lynch court also said a doctor’s assurances that all is well might reinforce the reluctance of an average person to find fault.
Similarly, Urban’s dissatisfaction led her to seek a second opinion.
“However, her vague suspicions did not amount to objective evidence that would have caused a reasonable person to suspect malpractice,” the panel said.
The standard is an objective one — whether Urban knew or should have known of sufficient facts to start the statute running — especially because Naame told Urban the healing pace was her fault for putting weight on that foot.
The panel agreed with Urban’s lawyer, Patricia Giordano of Feldman, Shepherd, Wohlgelernter, Tanner, Weinstock & Dodig in Philadelphia, that the statute of limitations began to run on March 26, 2008, the date of the last appointment with Naame, placing the March 24, 2010, complaint within the statute of limitations.
Calls to Joseph Mandia of Crammer, Bishop & O’Brien in Absecon, who represented Naame and his practice, and Apple Sulit-Peralejo of Fox Rothschild in Atlantic City, who represented the hospital, were not returned.