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Szczuvelek v. Harborside Healthcare Woods Edge1/24/2005
when the plaintiff receives the medical records. Ante, ____ N.J. at ____. As a result, that methodology would extend the limitations period "in almost every medical malpractice case." Ante, ___ N.J. at ___.
Respectfully, that fear is groundless. The methodology that I describe is neither whimsy nor whim. It is the established procedure that is rooted in the Mancuso, Vispisiano, and Guichardo trilogy. Far more important, the spectre that the concurrence imagines -- that this procedure would extend the statute of limitations in "almost every medical malpractice case" -- is, like all spectres, an illusion. As a general rule, it is not in a plaintiff's interest to delay the commencement of litigation. More to the point, even if a plaintiff does protract matters, the fear of an open-ended process is misplaced. Less than two years ago, when we applied the discovery rule in Guichardo, supra, we also stated that "nothing in our jurisprudence... would bar the application of other equitable principles such as unclean hands or laches to avoid undue prejudice to a potential defendant." 177 N.J. at 55-56.
The laches defense applies when plaintiff "delay for a length of time which, unexplained and unexcused, is unreasonable under the circumstances and has been prejudicial to the other party." Mancini v. Twp. of Teaneck, 179 N.J. 425, 437 (2004) (internal quotation marks and citation omitted) (recognizing applicability of laches in context of continuing violation of Law Against Discrimination).
In some instances of complex medical causation, an unknowing plaintiff may not have any reason to suspect medical malpractice until the statutory period has passed. See, e.g., Mancuso, supra; ante at ___ N.J. ___. In such circumstances, the defense of laches may or may not be convincing. In other complex medical causation cases, like the present one, a plaintiff may have the "mere suspicion" of medical malpractice but lack reasonable medical support for that belief. If such a plaintiff unreasonably delays in obtaining reasonable medical support, a defendant could invoke a laches argument and likely avoid application of the discovery rule. Thus, my approach appropriately recognizes the purpose of statutes of limitations -- to encourage potential plaintiffs to diligently pursue their claims.
Quite apart from exactly when plaintiff obtained the medical records, it appears, as defense counsel conceded at oral argument, that plaintiff acted diligently for discovery rule purposes. Cf. Guichardo, supra, 177 N.J. at 49 (applying discovery rule where plaintiff obtained expert opinion implicating defendant nearly four years after negligence occurred); Mancuso, supra, 163 N.J. at 30 (applying discovery rule where plaintiff obtained expert opinion implicating defendant seven years after negligence occurred). Nonetheless, as a matter of fairness, I would remand to the trial court to allow Harborside the opportunity to assert its laches argument. Indeed, each party would be permitted to make equity-based arguments on remand. The trial court would then determine whether it is fair to allow plaintiff to proceed with his claim.
V.
As for the concurrence's reasonable person test, I recognize that plaintiff read Burns's note, was confused by the nursing staff's contradictory statements regarding Burns's treatment, knew that the decedent had trouble breathing, and knew of the cause of death. However, I do not believe that those facts would cause a reasonable person to recognize that Harborside may have committed medical malpractice.
First, the fears of a gravely ill, seventy-eight year old man, who was dissatisfied with the care and attentiveness he received from the st
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