On appeal from the Superior Court, Law Division, Middlesex County
Gaulkin, Muir, Jr. and Landau. The opinion of the court was delivered by Gaulkin, P.J.A.D. Landau, J.A.D., Concurring.
The opinion of the court was delivered by
This medical malpractice case was brought by Ronald Karol and his wife against Bori Berkow, M.D., for his alleged failure to timely diagnose and treat a melanoma. The Law Division dismissed the complaint as filed more than two years after the cause of action accrued. N.J.S.A. 2A:14-2. The case requires us to determine when an increased-risk-of-harm cause of action accrues.
Karol first consulted Berkow in August 1983 about a mole on his lower back. According to Karol, Berkow told him it was a fatty cyst and not to worry about it. Karol returned to Berkow in August 1984 because the mole had started to bother him. A biopsy disclosed that the tissue was a malignant melanoma. Karol underwent surgery on August 31, 1984.
On August 5, 1986, Karol and his wife sued Berkow for his alleged failure to properly diagnose and treat the mole. During the pre-trial proceedings, Karol obtained an opinion from a medical expert that the one-year delay in diagnosis and excision of the lesion increased the possibility of Karol's dying from melanoma during the next 7 1/2 years from 3% to 23%. In light of that report and the absence of clinical evidence of disease, Karol voluntarily dismissed his complaint without prejudice.
In 1989, a nodule appeared adjacent to the surgical scar. Following surgery on June 13, 1989, the growth was diagnosed as metastatic malignant melanoma. On February 22, 1991, Karol and his wife filed a new complaint against Berkow, alleging the same malpractice pleaded in the earlier complaint and a resultant recurrence of melanoma. Berkow moved for
summary judgment, contending that the cause of action accrued in 1984 and thus was time-barred. In response, Karol argued that prior to the recurrence of the melanoma, his increased risk of death, i.e., from 3% to 23%, was "a damage for which he would never have been able to make a claim." Upon that recurrence, he maintained, the risk of death from melanoma became a probability; counsel tells us that the risk is now approximately 70%. In dismissing the complaint, the motion Judge reasoned that Karol would have been entitled to recover damages for the pre-recurrence increased risk of death. He concluded that the cause of action thus had accrued in 1984 even though Karol may not have then known "the full extent of the injury."
We reverse. Our reading of the case law persuades us that Karol's increased-risk-of-future-harm cause of action did not accrue until that harm occurred in 1989, less than two years before this action was filed.
The increased-risk-of-harm cause of action was first recognized in Evers v. Dollinger, 95 N.J. 399, 471 A.2d 405 (1984). There plaintiff had consulted a doctor about a lump in her breast. Although the doctor told her it was of no significance, the lump continued to grow and seven months later was diagnosed as a malignancy. At the time of trial, defendant was disease-free; she offered expert reports that 25% of patients with her type of cancer would have a recurrence even after prompt and accurate diagnosis and treatment, but that a seven-month delay would increase the risk to an extent which "cannot be assessed." Id. at 405, 471 A.2d 405. The trial Judge rejected the proffer because the experts "were unable to determine the magnitude of the risk of recurrence and distant spread of the cancer." Id. The Appellate Division affirmed, finding "no showing of any damages proximately flowing" from the malpractice. Id. at 406, 471 A.2d 405.
The Supreme Court reversed, holding that the proofs showed that the tumor increased in size and infiltrated the adjoining duct before it was correctly diagnosed and excised; that alone was a "sufficient physical injury to withstand defendant's motion." Id. Moreover, plaintiff could recover for mental distress attributable not only "to her having the cancer but also to the growth of the tumor during the time proper treatment was withheld and from the realization, following the confirmation of her malignancy, that defendant's delay in her treatment had increased the risk that she would again fall victim, perhaps fatally, to the disease."*fn1 Id.
With respect to the claim for increased risk of harm, the Court noted that, while her appeal was pending before it, plaintiff's breast cancer was found to have metastasized to the lung and she was now "faced with a terminal illness." Id. at 403-404, 471 A.2d 405. The Court found that plaintiff was entitled to damages if she proved that the delay in diagnosis and treatment "increased the risk of recurrence and that such increased risk was a substantial factor in bringing about the condition from which plaintiff now suffers, or, put differently, that the harm of which there was but increased risk ...