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Karol v. Berkow3/6/1992
The opinion of the court was delivered by
GAULKIN, P.J.A.D.
This medical malpractice case was brought by Ronald Karol and his wife against Bori Berkow, M.D., for his alleged failure to timely diagnose and treat a melanoma. The Law Division dismissed the complaint as filed more than two years after the cause of action accrued. N.J.S.A. 2A:14-2. The case requires us to determine when an increased-risk-of-harm cause of action accrues.
I
Karol first consulted Berkow in August 1983 about a mole on his lower back. According to Karol, Berkow told him it was a fatty cyst and not to worry about it. Karol returned to Berkow in August 1984 because the mole had started to bother him. A biopsy disclosed that the tissue was a malignant melanoma. Karol underwent surgery on August 31, 1984.
On August 5, 1986, Karol and his wife sued Berkow for his alleged failure to properly diagnose and treat the mole. During the pre-trial proceedings, Karol obtained an opinion from a medical expert that the one-year delay in diagnosis and excision of the lesion increased the possibility of Karol's dying from melanoma during the next 7 1/2 years from 3% to 23%. In light of that report and the absence of clinical evidence of disease, Karol voluntarily dismissed his complaint without prejudice.
In 1989, a nodule appeared adjacent to the surgical scar. Following surgery on June 13, 1989, the growth was diagnosed as metastatic malignant melanoma. On February 22, 1991, Karol and his wife filed a new complaint against Berkow, alleging the same malpractice pleaded in the earlier complaint and a resultant recurrence of melanoma. Berkow moved for
summary judgment, contending that the cause of action accrued in 1984 and thus was time-barred. In response, Karol argued that prior to the recurrence of the melanoma, his increased risk of death, i.e., from 3% to 23%, was "a damage for which he would never have been able to make a claim." Upon that recurrence, he maintained, the risk of death from melanoma became a probability; counsel tells us that the risk is now approximately 70%. In dismissing the complaint, the motion Judge reasoned that Karol would have been entitled to recover damages for the pre-recurrence increased risk of death. He concluded that the cause of action thus had accrued in 1984 even though Karol may not have then known "the full extent of the injury."
We reverse. Our reading of the case law persuades us that Karol's increased-risk-of-future-harm cause of action did not accrue until that harm occurred in 1989, less than two years before this action was filed.
II
The increased-risk-of-harm cause of action was first recognized in Evers v. Dollinger, 95 N.J. 399, 471 A.2d 405 (1984). There plaintiff had consulted a doctor about a lump in her breast. Although the doctor told her it was of no significance, the lump continued to grow and seven months later was diagnosed as a malignancy. At the time of trial, defendant was disease-free; she offered expert reports that 25% of patients with her type of cancer would have a recurrence even after prompt and accurate diagnosis and treatment, but that a seven-month delay would increase the risk to an extent which "cannot be assessed." Id. at 405, 471 A.2d 405. The trial Judge rejected the proffer because the experts "were unable to determine the magnitude of the risk of recurrence and distant spread of the cancer." Id. The Appellate Division affirmed, finding "no showing of any damages proximately flowing" from the
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