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Szczuvelek v. Harborside Healthcare Woods Edge1/24/2005
ark v. Gimbel's Inc., 54 N.J. 585, 596-97 (1969)).]
As in Martinez, supra, we should not expect the lay plaintiff here to immediately suspect that Harborside's refusal to suction Burns contributed to his friend's death. Indeed, as one of Burns's nurses later testified at her deposition, the decision not to suction serves a legitimate medical purpose:
"to train [patients' bodies] to [cough] up the secretions by themselves," which prevents them from becoming dependent on suctioning. Moreover, Burns's need of a tracheotomy and twenty four hour care evidences the gravity of his condition in the days and weeks before his death. A reasonable person easily could have believed that Burns simply suffered complications from his illnesses. Ibid. Indeed, given Burns's recent medical history, that was the sensible inference to be drawn at the time. Unlike situations of obvious medical malpractice -- such as the amputation of the wrong leg -- this appeal involves a complicated series of events that ultimately caused Burns's death.
Moreover, this matter presents a less obvious case of third party fault than did Guichardo, supra, where we applied the discovery rule and allowed plaintiff to assert a claim against defendant eight months after obtaining an expert's opinion that defendant's negligence contributed to plaintiff's injury and almost four years after the negligence occurred. 177 N.J. at 55. There, the defendant physician admitted to plaintiff that "something went wrong with" the procedure two days after he negligently failed to diagnose plaintiff's condition. Id. at 48. In contrast, here, plaintiff did not have the benefit of an admission by Harborside. Yet, plaintiff was still able to assert his claim only two years and eleven days after the negligence occurred. Thus, the facts supporting application of the discovery rule in this matter are even more compelling than in Guichardo.
In sum, consistent with our decisional law, I would not require plaintiff to differentiate between a case of medical malpractice and one of unavoidable death without the benefit of some reasonable medical support. To insist on that expertise, even when the plaintiff observes defendant's negligent behavior, in effect requires that a layperson understand the medical consequences of a health care professional's decisions. Although such a requirement may be appropriate in general medical malpractice cases, that expectation is inconsistent with the equitable nature of the discovery rule when applied in the context of complex medical causation.
Accordingly, I would hold that the statute of limitations began to run when plaintiff obtained Burns's medical records. As defense counsel conceded at oral argument, plaintiff had no reasonable basis for concluding that he had an actionable claim against Harborside until he obtained those records. She also acknowledged that without those records there was no conceivable way that anyone would have a reasonable basis to conclude that there was an actionable claim. It is my view, as well, that plaintiff initially discovered or should have discovered that he might "have a basis for an actionable claim" against Harborside when he received those records. Lopez, supra, 62 N.J. at 272.
Although the exact date is unclear, it is certain that plaintiff did not receive those records before May of 1999. Under that construct, the statute of limitations expired no earlier than May of 2001. Because plaintiff filed his complaint on April 26, 2001, he did so within the two-year statute of limitations.
IV.
The concurrence states that the approach I support would delay the start of the limitation period "until the whimsical date"
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