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Szczuvelek v. Harborside Healthcare Woods Edge1/24/2005
r Burns shook his head, plaintiff challenged the nurse's comment. It was then that the nurse changed her view and claimed it was the doctor's orders that Burns was not to be suctioned.
We are satisfied that a reasonable person in plaintiff's position would have been concerned whether Burns received proper care and whether Harborside's treatment, or lack thereof, contributed to Burns' death. According to plaintiff, the nurse's assertion that she was following the doctor's orders not to suction Burns contradicted her prior statement that she had just suctioned Burns. That glaring contradiction, standing alone would make any reasonable person suspicious. Indeed, the conduct of the nurses and their treatment of Burns prompted plaintiff to immediately seek to transfer his friend to another facility. Unfortunately, time was not on his side because Burns was rushed to the hospital the next morning. In any event, the nurse's advice did not assuage plaintiff's concern. Within three weeks of the funeral, plaintiff consulted counsel concerning the treatment Burns received at Harborside.
Our dissenting colleagues invoke Mancuso v. Neckles, 163 N.J. 26 (2000), to reach a contrary conclusion. They postulate that this is a complex medical malpractice case and therefore the statute of limitations should not begin to run until plaintiff received Burns' medical records.
In Mancuso, plaintiff, a breast cancer victim, began mammography diagnosis in 1988, when she was thirty-seven years old. Id. at 30. She was diagnosed with breast cancer in July 1992, and underwent bone marrow transplant and debilitating radiation therapy. Ibid. In December 1992, plaintiff learned that her 1991-mammography films showed abnormalities. Id. at 31. She consulted an attorney in June 1993, and in July 1994, she filed a medical malpractice action against Dr. Neckles, the physician identified by her expert as the physician whose fault allowed cancer to spread. Id. at 32. During discovery, plaintiff learned from Dr. Neckles' expert that in 1989, Dr. Bernart may have failed to read the mammography correctly. Ibid. After obtaining a new expert who opined that Dr. Bernart deviated from accepted standards of care, she filed an amended complaint in July 1999. Ibid. Based on the running of the statute of limitations, the trial court dismissed plaintiff's complaint against Dr. Bernart and the Appellate Division affirmed. Id. at 33. In reinstating the complaint against Dr. Bernart, we concluded that "when a patient has relied on competent expert advice that one or more of her treating physicians did not contribute to the patient's injuries, later assertions to the contrary by a competent expert would then provide the 'basis for an actionable claim.'" Id. at 37 (citation omitted). In reaching that conclusion, we explained that in cases of complex medical causation, ' ot only is the nature of the injury generally unclear, its very existence is frequently masked.'" Id. at 34 (citation omitted).
Unlike in Mancuso, this case is not about a complex medical causation issue. Rather it is a simple case where a plaintiff is aware of facts that suggest the fault of a third party may have caused or contributed to the death of the victim, but further investigation is needed. The plaintiff need not have knowledge of the basis for legal liability or even that he is able to prove a cause of action. All that is required is that the facts suggest to a reasonable person that a third party's conduct, here Harborside, contributed to the injury. Under those circumstances, there is no need to apply the discovery rule because plaintiff has ample time to investigate and file a timely complaint.
In the vast majority of cases, and this
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