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Szczuvelek v. Harborside Healthcare Woods Edge1/24/2005
suit must be filed within two years of the accrual date, which generally is the date of the negligent act or omission. Martinez v. Cooper Hosp., 163 N.J. 45, 52 (2000). To avoid the harsh effects of a mechanical application of statute of limitations, we adopted the discovery rule first announced in Fernandi v. Strully, 35 N.J. 434 (1961). Ibid. "The discovery rule is essentially a rule of equity." Lopez v. Swyer, 62 N.J. 267, 273 (1973). The rule "provides that in an appropriate case a cause of action will be held not to accrue until the injured party discovers, or by an exercise of reasonable diligence and intelligence should have discovered that he [or she] may have a basis for an actionable claim." Id. at 272.
It is not every belated discovery that will justify an application of the rule lifting the bar of the limitations statute. The interplay of the conflicting interests of the competing parties must be considered. The decision requires more than a simple factual determination; it should be made by a judge and by a judge conscious of the equitable nature of the issue before him [or her].
[Id. at 275.]
Thus, it is necessary to identify the equitable claims of each party and evaluate and weigh those claims in determining whether it is appropriate to apply the discovery rule. The crucial inquiry is "whether the facts presented would alert a reasonable person exercising ordinary diligence that he or she was injured due to the fault of another. The standard is basically an objective one -whether plaintiff 'knew or should have known' of sufficient facts to start the statute of limitations running." Martinez, supra, 163 N.J. at 52.
III.
We turn now to apply those principles to the parties' contentions. Plaintiff contends that a fair application of the discovery rule results in a conclusion that the cause of action did not accrue until after he consulted with counsel, obtained the medical records, and realized Harborside may have been negligent in its treatment of Burns. Further, he contends that the misleading advice he received on April 15, 1999, by the nursing staff at Harborside that Burns was receiving respiratory care as often as permitted by the physician's orders should toll the running of the statute of limitations until "June 24, 2001 or shortly thereafter, when he had the benefit of the report of Dr. Warren D. Widmann." Plaintiff alleges that Dr. Widmann's report provided the factual basis to conclude that Harborside and its staff had been negligent. Moreover, it was not until he received Dr. Widmann's report that he had a factual basis to appreciate that Somerset may have been negligent for its failure to diagnose and properly treat Burns.
Harborside contends there is no justification to apply the discovery rule in this case. Further, it argues that it is disingenuous of plaintiff to now argue that he did not have sufficient facts to file this lawsuit until he obtained Dr. Widmann's report in June 2001 since he filed the complaint on April 26, 2001, prior to the receipt of that report.
Somerset also argues that this is not an appropriate case to apply the discovery rule because plaintiff observed a lack of suctioning of Burns on April 15, 1999, Burns' death occurred on April 17, 1999, and plaintiff consulted with a lawyer within three weeks of the funeral, which evidenced his obvious concern.
Unlike the claim against Harborside, the trial court made no findings on the record that would indicate when a reasonable person in plaintiff's position should have been aware of Somerset's role in contributing to the cause of Burns' death. The court below failed to discuss the application of the discovery rule to
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