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Silverman v. Lathrop

Decided: May 4, 1979.

ELIZABETH H. SILVERMAN, EXECUTRIX OF THE ESTATE OF STANLEY H. SILVERMAN, DECEASED; AND ELIZABETH H. SILVERMAN, INDIVIDUALLY, PLAINTIFFS-APPELLANTS AND CROSS RESPONDENTS,
v.
RICHARD G. LATHROP, M.D., DEFENDANT-RESPONDENT AND CROSS APPELLANT



On appeal from the Superior Court of New Jersey, Law Division, Union County.

Conford, Pressler and King. The opinion of the court was delivered by King, J.A.D.

King

[168 NJSuper Page 334] This case commenced as a personal injury malpractice action. The then plaintiff, Stanley N. Silverman,

charged defendant Dr. Lathrop, with negligence in his diagnosis and care of a lesion behind plaintiff's right knee which had allegedly metastasized. Silverman died shortly after filing suit and thereafter the trial judge granted defendant's motion for summary judgment on the personal injury-survival action because of the bar of the statute of limitations. N.J.S.A. 2A:15-3, 4. The substituted plaintiff-executrix now appeals from this dismissal of the survival action. Defendant had also moved for summary judgment on the wrongful death action (N.J.S.A. 2A:31-1 et seq.) filed by amendment after Silverman's demise on the grounds that such action was barred where the statute of limitations barred the personal injury-survival action arising from the same alleged negligence. The trial judge denied defendant's motion for summary judgment on the wrongful death action, and defendant has filed an interlocutory appeal therefrom with leave of court. Although the trial court's judgment dismissing the personal injury-survival action was technically not final in view of the continued pendency of the joined count for wrongful death, and no leave for appeal therefrom was sought by plaintiff, we grant such leave nunc pro tunc in the interest of expeditious disposition of the cause and because of the important issue of construction of our Wrongful Death Act presented by this case and the companion case, Alfone v. Sarno , 168 N.J. Super. 315 (App. Div. 1979), which we also decide today.

In April 1972 Silverman, a 42-year-old chemical engineer employed by a pharmaceutical company, noticed a small dark spot behind his knee which he thought was a blood blister. On July 7, 1972 he first consulted defendant, a dermatologist. Defendant excised the lesion but did not order a biopsy of the removed tissue. In late August or early September, Silverman noticed a black swelling at the incision site. On October 3 he returned to defendant, who then became suspicious that the original lesion had been a melanoma. An excisional biopsy was promptly performed.

The pathological report diagnosing malignant melanoma was received by defendant on October 14. Defendant immediately informed Silverman of the diagnosis and of the need for specialized treatment. On defendant's advice Silverman consulted a specialist, Dr. Steinberg, on October 25 and thereafter had no contact with defendant. Silverman was admitted to Memorial Hospital in New York City on October 31 and underwent surgery on November 17. He was discharged on December 2, 1972 with a "guarded prognosis" because of regional metastases. He was thereafter followed closely by the doctors and in April 1975 a liver scan suggested possible complication. In June 1975 an aspiration biopsy of the liver was positive for malignant melanoma, a fatal complication.

On learning of his imminently terminal condition Silverman consulted an attorney on June 27, 1975 to order his affairs. The attorney investigated the medical-legal implications of the failure to perform a biopsy following the initial excision on July 7, 1972 and filed this personal injury action on October 31, 1975. Silverman died of alleged metastatic melanoma on December 21, 1975. On February 24, 1976 the present plaintiff, Mrs. Silverman, filed an amended complaint substituting herself as plaintiff in her capacity as executrix and demanded damages for wrongful death as a result of defendant's alleged malpractice.

The foregoing facts were developed from oral testimony taken at the pretrial hearing on the motion to dismiss the survival action because of the bar of the statute of limitations. Such hearing is required by Lopez v. Swyer , 62 N.J. 267 (1973). The statute of limitations controlling the survival action, N.J.S.A. 2A:14-2, states:

Every action at law for an injury to the person caused by the wrongful act, neglect or default of any person within this state shall be commenced within 2 years next after the cause of any such action shall have accrued.

Commencing with Fernandi v. Strully , 35 N.J. 434 (1961), our Supreme Court has recognized the so-called "discovery"

rule exception to a strict statute of limitations defense. The "discovery" rule is usually identified with medical malpractice actions, although not necessarily limited to them. New Market Poultry Farms, Inc. v. Fellows , 51 N.J. 419 (1968) (discovery rule applied to claim against engineers and land ...


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