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Alfone v. Sarno

Decided: February 23, 1976.

ALPHONSE ALFONE, ADMINISTRATOR OF THE ESTATE OF CONCETTA ALFONE, PLAINTIFF-APPELLANT,
v.
ANTHONY M. SARNO, M.D., DEFENDANT-RESPONDENT



Lynch, Larner and Horn. The opinion of the court was delivered by Horn, J.A.D.

Horn

The single issue for decision here is whether this medical malpractice action is barred by the statute of limitations. N.J.S.A. 2A:14-2. More precisely, the question is whether under Lopez v. Swyer , 62 N.J. 267 (1973), a cause of action for medical malpractice accrues only when a patient "victim" of the malpractice knows or by the exercise of reasonable diligence and intelligence should know that the injury (or extended illness) was related to fault on the part of the physician as distinguished from mere knowledge of a causal relationship (without negligence) between the doctor's acts and the injury.

In a complaint filed September 8, 1968 Concetta Alfone (hereafter plaintiff)*fn1 alleged that defendant negligently performed

a surgical operation upon her thyroid on March 11, 1965. It is undisputed that in the course of that operation defendant removed a parathyroid gland, as a result of which Miss Alfone suffered serious medical consequences.*fn2 Since the suit was filed more than two years after the operation, defendant claimed it was barred by the statute of limitations.

The action was first tried before a judge and jury. On November 16, 1971 a verdict was returned in favor of plaintiff in the amount of $100,000. Defendant appealed. Following the decision of the Supreme Court in Lopez , this court reversed because the trial judge, in his charge to the jury, erroneously imposed upon defendant the burden of proving that the action was barred. As Lopez decided, the proper rule is that the burden of avoiding the statute of limitations rests upon the plaintiff. 62 N.J. at 276. Therefore, pursuant to Lopez , this matter was remanded for determination of the statute of limitations question by a judge sitting without a jury. 62 N.J. at 272, 274-275.

At the pretrial conference following remand the parties agreed that the issue of the statute of limitations would be determined on the record of the trial and depositions theretofore taken. Since the trial judge on remand (hereafter trial judge) did not have an opportunity to observe the witnesses, the ordinary scope of appellate review giving deference to the trial court's findings is not appropriate. See Pearl Assur. Co. v. Watts , 69 N.J. Super. 198, 205 (App. Div. 1961). We thus consider the entire record ourselves and reach our own determination of the facts.

The trial judge held that plaintiff's action was barred by the statute of limitations. In substance, he found that shortly after the operation of March 11, 1965 defendant informed plaintiff that as a result of the surgery her parathyroid glands were no longer functioning. The judge concluded that

at that point plaintiff knew she had experienced an unexpected, doctor-caused injury. This finding was largely based upon plaintiff's testimony in her deposition that defendant told her that during the operation a surgical instrument had touched the parathyroid glands, which were thus "traumatized" and became "dormant." Plaintiff also testified at trial that, "I became very much aware, you know, after the surgery that there was something desperately wrong."

The trial judge also found that while plaintiff was in the National Institutes of Health in Bethesda, Maryland, from March to June 1966, she came to believe that she had suffered a permanent injury. He concluded that by that time she should have known that she might have an actionable claim.

On appeal plaintiff contends that the trial judge misapplied the decision in Lopez. It is plaintiff's position that a proper interpretation of the rule there expressed is that the statute of limitations does not begin to run until the injured party is or should be aware that he has suffered an injury and that the injury was caused by the doctor's negligence. Plaintiff argues that the Supreme Court opinion in Lopez adopted the same view of this issue as the Appellate Division. The Appellate Division opinion stated:

Plaintiff asserts that she did not learn that her condition was caused by the negligence of defendant until August or September 1967, when she was told by a friend, Dr. Rueda, who had been an intern in the hospital at the time of her operation, that a parathyroid gland had been ...


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