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Lombardi v. Simon

February 4, 1993


Sciuto, J.s.c.


[266 NJSuper Page 710] This case involves a medical malpractice action where Steven Lombardi, as executor for his father's estate, has brought suit against his father's treating doctors sounding in both negligence and wrongful death. Plaintiff in the third count of his complaint named Wen-Hong Chen, the anesthesiologist who plaintiff mistakenly believed was present at the operation where Mr. Lombardi expired, as a defendant. Plaintiff amended his complaint on July 16, 1992 to include Dr. Te-Hong Chen, the anesthesiologist who was in fact present at the operation where William Lombardi expired.

The amendment to the complaint naming Te-Hong Chen as a defendant was filed more than two years after the death of William Lombardi. Defendant, Dr. Te-Hong Chen, is now seeking summary judgment on the plaintiff's wrongful death claim. The basis for defendant Chen's motion is that it is time barred since it was brought more than two years after Mr. Lombardi's death.

The relevant facts are as follows. In September of 1989 the decedent, William Lombardi, was a patient of the defendant, Clifford Simon, M.D., in connection with an endobronchial polypoid tumor. On September 13, 1989, the decedent was admitted to Englewood Hospital by Dr. Simon for a procedure to remove the entire tumor. This operation was terminated before the procedure was completed because Mr. Lombardi had a cardiac episode causing a decrease in his pulse. The anesthesiologist during the procedure was Wen-Hong Chen.

Mr. Lombardi was admitted by Dr. Simon to Englewood Hospital sixteen days later to complete the removal of the tumor. During surgery on September 29, 1989, William Lombardi suffered an acute cardiorespiratory failure and died on the operating table. The anesthesiologist during this second procedure was Te-Hong Chen.

Both Wen-Hong Chen and Te-Hong Chen used the initial of their first names when signing the hospital notes and records from the two operative procedures. Both doctors operated out of the same medical group at Englewood Hospital at the time of Mr. Lombardi's death, provide the same medical specialty and at the time of service of the original complaint shared the same office, address, phone number and liability carrier.

The right to sue for wrongful death is purely statutory since no such right existed at common law. Alfone v. Sarno, 87 N.J. 99, 104, 432 A.2d 857 (1981). The Wrongful Death Act, N.J.S.A. 2A:31-1, et seq., creates a separate cause of action whereby the beneficiaries of the deceased may recover pecuniary

losses which arose as a result of that individual's early demise. Id. at 107, 432 A.2d 857.

N.J.S.A. 2A:31-3 states that: "Every action brought under this chapter shall be commenced within two years after the death of the decedent and not thereafter." There is a plethora of case law which stands for the proposition that this provision is not a statute of limitations but rather a condition which is an integral part of the right to sue and therefore must be present before one secures the right to file a wrongful death action. See Marshall v. Geo. M. Brewster & Son, Inc., 37 N.J. 176, 182, 180 A.2d 129 (1962); Park v. Beech Aircraft Corp., 11 Terry 413, 50 Del. 413, 132 A.2d 54 (1957). Where an action for wrongful death is not brought within two years of decedent's death, it is barred. Whalen v. Young, 28 N.J. Super. 543, 101 A.2d 64 (Law Div.1954).

A court has no discretion in construing the wrongful death statute and may not "ingraft any exception for public policy reasons." See Presslaff v. Robins, 168 N.J. Super. 543, 548, 403 A.2d 939 (App.Div.1979); Peters v. Public Service Corp., 132 N.J. Eq. 500, 29 A.2d 189, 193 (1942).

The provision of the Wrongful Death Act, requiring every action to be commenced within a two year period "operates as a limitation of the liability of the wrongdoer as well as of the remedy." Id. Thus, the aforementioned wrongful death provision differs from N.J.S.A. 2A:14-2, in that it focuses on the date of death as opposed to the accrual of the action. Cockinos v. GAF Corp., 259 N.J. Super. 204, 611 A.2d 1154 (Law Div.1992).

It is undisputed that plaintiff properly instituted a wrongful death action within two years of decedent's death, thereby satisfying N.J.S.A. 2A:31-3. Thus, plaintiff in his initial complaint met the aforementioned ...

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