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Szczuvelek v. Harborside Healthcare Woods Edge1/24/2005
aff, do not necessarily indicate that medical malpractice occurred. This is true even though those same facts spurred plaintiff to make Burns more comfortable by seeking care for him elsewhere. Second, the nurse's statement concerning the suctioning orders does not indicate that plaintiff knew or should have known of Harborside's negligence because a reasonable layperson would not understand all of the medical consequences of a decision not to suction, or to suction at particular intervals, especially in light of the confusing and contradictory information with which plaintiff was presented that day. Finally, the causal connection between Burns's difficulty breathing, Harborside's refusal to suction, and Burns's ultimate death is technical and not at all obvious to a non-medically trained layperson. Indeed, considering that Burns began struggling to breathe after his surgery, plaintiff may not have immediately assumed that a lack of suctioning caused Burns's continued struggle to do so while at Harborside. Moreover, the Somerset doctor who informed plaintiff of Burns's death explained, and plaintiff understood, the cause as "heart failure" -- a cause that does not, of itself, suggest a connection to suctioning.
Thus, even applying the test of the concurrence, I would hold that plaintiff did not have sufficient information at the time of Burns's death to begin the statute of limitations. Because I believe that plaintiff should receive the benefit of the discovery rule, I respectfully dissent with respect to defendant Harborside. As noted, however, I would remand to allow both sides to present their equity arguments more fully. That approach fairly balances the interests of the parties.
JUSTICES LONG and ALBIN join in this opinion.
Chief Justice Poritz PRESIDING
CONCURRING/DISSENTING OPINION BY Justice Zazzali
CONCURRING OPINION BYChief Justice Poritz, and JJ. Wallace and Rivera-Soto
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