On appeal from Superior Court of New Jersey, Law Division, Essex County.
J. H. Coleman, Brody and Skillman. The opinion of the court was delivered by Brody, J.A.D.
[239 NJSuper Page 417] Plaintiff Norma Brizak (plaintiff) alleged in her complaint that defendant, a personal injury attorney, "negligently represented plaintiffs and failed to file a [medical malpractice] law suit against Mohammad Shafi, M.D. prior to the expiration of
the statute of limitations on November 1, 1984."*fn1 In answer to one of several special interrogatories the jury found that defendant was "negligent in his representation of plaintiff on her claim against Dr. Shafi for medical negligence." In answer to another interrogatory the jury found that defendant's negligence was "a proximate cause of plaintiff's failure to timely sue Dr. Shafi for damages." The jury awarded plaintiff damages in the amount of $35,000. Defendant appeals.
Although the parties agree that the "discovery rule" delayed accrual of plaintiff's claim against the doctor until sometime after he had last treated her, they do not agree on the date of accrual. This appeal requires us to consider whether an attorney has the duty to investigate the basis for a client's medical malpractice claim, and the scope of his duty to protect the client from the statute of limitations where the "discovery rule" applies. We must also consider whether plaintiff's claims were properly given to the jury even though she presented no expert legal testimony.
Plaintiff sustained a complete and comminuted fracture of the left humerus when she fell in her home on May 17, 1981. The indicated treatment, as described by plaintiff's medical expert Dr. Robert Tuby, calls for aligning the fractured ends of the bone and joining the fragments through open reduction surgery, and fixing them in place with a combination of pins and a plate held in place with screws. Instead of using that procedure, Dr. Shafi treated plaintiff in the emergency room of a hospital by simply placing her arm in a hanging cast. The fractured ends never united. In time it became too late medically to correct the poor result.
Dr. Shafi conceded at trial that the procedure he used was "second-best," but testified that plaintiff refused to undergo an
open reduction. However, plaintiff and two of her adult daughters, who accompanied her whenever she visited Dr. Shafi, testified that the doctor did not offer the option of an open reduction.
The jury specially found that Dr. Shafi did not "advise plaintiff, Norma Brizak, of the need to undergo surgery for her left arm." Defendant's medical witness, Dr. Albert Willner, expressed the opinion that Dr. Shafi did not deviate from accepted standards of medical care. However, he rested his opinion on the assumption, which the jury rejected, that the doctor had advised plaintiff "of the type of injury and that she did not wish to have any other treatment rendered to her except that of a cast application."
The issue in the medical malpractice claim was therefore not whether Dr. Shafi departed from an accepted standard of medical care, but simply whether he advised plaintiff to undergo an open reduction. Until the facts were investigated, however, neither plaintiff nor defendant could have surmised that the ultimate issue would merely be credibility.
The issue in the legal malpractice claim was whether, after being engaged by plaintiff to represent her, defendant diligently investigated the facts so that he could have commenced a timely action against the doctor.
Dr. Shafi last treated plaintiff for the fractured humerus on July 10, 1981. Over a year later, on September 3, 1982, plaintiff's hip was severely fractured when she was a passenger in a one-car accident. The same Dr. Shafi set the hip through an open reduction. About two months later, defendant was at plaintiff's home to consult with her adult son, whom he was representing in a matrimonial matter. While there he first met plaintiff who was still on crutches. She told him of her automobile accident and engaged him to represent her in an action against the driver.
During that conversation with defendant, plaintiff mentioned that she was still suffering from the effects of the broken arm.
She complained that she could not raise the arm above the level of her shoulder. The date of that conversation, sometime toward the end of October 1982, forms the basis of the allegation in the complaint that the limitations period for suing the doctor expired on November 1, 1984. However, plaintiff did not sign an agreement to retain defendant respecting her claim against the doctor until December 5, 1983, about the same time that defendant reached a settlement of plaintiff's automobile accident claim.
Defendant assigned the malpractice matter to an associate who had been handling plaintiff's automobile accident claim. The associate had previously learned from Dr. Shafi that plaintiff was suffering the effects of an unhealed fractured humerus. Dr. Shafi had sent the associate a final medical report of plaintiff's hip injury, dated November 8, 1983, in which he noted that he had treated plaintiff for a fractured humerus until July 10, 1981, "at which time the fracture had not fully healed and a delayed union was considered." Elsewhere in the report the doctor included "Nonunion fracture proximal humerus, left" in his description of plaintiff's physical condition when he last saw her on September 15, 1983. The file that defendant opened for plaintiff's claim against the doctor contains an early entry, apparently in the associate's hand, that reads, "Hanging cast instead of a pin." The associate did not testify.
It thus appears that early in his representation of plaintiff, defendant, or at least his associate, knew that plaintiff's fractured humerus had not healed under Dr. Shafi's treatment and that the bad result may have had something to do with the doctor's use of a hanging cast instead of pins to fix the fracture. Defendant's office did little to investigate these indications that Dr. Shafi's treatment was malpractice.
The first action defendant took after plaintiff retained him in December 1983 was to send the hospital a letter dated May 31, 1984, requesting a copy of the complete record of her emergency room treatment in May 1981 for the fractured humerus.
The hospital sent defendant a copy of the record, including an X-ray report but not the X-rays themselves. Defendant made no further attempt to obtain the X-rays, which were in Dr. Shafi's possession. When asked why he did not obtain the doctor's office records, defendant testified that the emergency room records were all he needed because "the treatment that was involved, that is the procedure, took place at the hospital." The doctor's office records included not only the X-rays but an entry dated July 10, 1981, in which he noted that he had discussed with plaintiff's daughter the need for an open reduction because of the "completely displaced fracture."*fn2
After receiving the hospital records in June 1984, defendant did nothing more until March 1985 when he visited Dr. Michael Och, a long-time friend, at his home and obtained his oral opinion. Dr. Och is a radiologist and not an orthopedic surgeon. Although acknowledging that it would be "a deviation from accepted standards of medical practice not to review the X-rays or consult with a radiologist before making a diagnosis and making a recommendation for treatment," Dr. Och testified that all he needed to judge Dr. Shafi's treatment was the X-ray report that defendant had shown him. That report reads as follows:
Views of the right humerus in the AP and lateral projection shows a comminuted fracture of the right humeral neck with the humeral shaft distal to the fracture fragment being directed slightly superiorly. In addition, there appears to be a rotatory component to the humeral head.*fn4 No obvious dislocation is seen. 5-19-81 B. TERRY, M.D./mvc
After examining the report and considering the treatment noted in the emergency room record, Dr. Och advised defendant that he "didn't see any apparent reason for any deviation from normal." Dr. Och testified that having followed fractures of the humerus for many years, "most of the cases that I have seen have been treated with hanging casts." However, on cross-examination he acknowledged,
I do not have any experience with open reduction. I have seen X-rays with metallic fixation devices and I assume they are used properly.
When defendant was asked on cross-examination whether he consulted any of the services that review medical records to evaluate medical malpractice claims and provide expert testimony if warranted, he testified as follows:
Q. Did you avail yourself of that service?
A. Once I knew there was indeed a basis for medical malpractice, I would consider it. I would consider it. Although I might say that there have been some other medical malpractice cases where I tested that type of service and I was very sorrowly disappointed with the way they tried to analyze the problem.
Q. Now, you have testified that you know it's difficult to obtain medical testimony in a malpractice case, is it not?
A. I think that's a fair statement, yes.
Q. And you testified that most doctors don't want to get involved?
Q. But there are physicians, are there not, that do evaluate ...