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CARTER v. UNIVERSITY OF MED. & DENTISTRY OF NEW JE

December 6, 1993

Neal Anthony Carter, a minor by Gail P. Carter and Craig A. Carter, his Natural Parents and Next Friends, and Gail P. Carter and Craig A. Carter, individually
v.
University of Medicine and Dentistry of New Jersey - Rutgers Medical School d/b/a Robert Wood Johnson Medical School, Lawrence T. Taft, M.D., John Doe, M.D., Victor Tuma, M.D., and Metuchen Pediatric Associates, P.A.



The opinion of the court was delivered by: NICHOLAS H. POLITAN

 This matter comes before the Court on the motion of defendants Victor Tuma, M.D. and Metuchen Pediatric Associates, P.A., for partial summary judgment dismissing the individual claims of plaintiffs Gail P. Carter and Craig A. Carter on the grounds that such claims are barred by the applicable statute of limitations. I heard oral argument in this matter and reserved decision. For the reasons set forth herein, defendants' motion for partial summary judgment is hereby DENIED.

 STATEMENT OF FACTS

 Plaintiffs Gail P. Carter and Craig A. Carter, individually and on behalf of their infant son Neal A. Carter, instituted this malpractice action on August 16, 1991. Plaintiffs' original Complaint alleged that defendants University of Medicine and Dentistry of New Jersey ("UMDNJ"), Victor Tuma, M.D. (a board certified pediatrician), Lawrence Taft, M.D., and Metuchen Pediatrics Associates, P.A. ("Metuchen"), failed to diagnose and treat properly the infant plaintiff's neurological medical condition, hydrocephalus. *fn1" An amended Complaint was filed with leave of this Court on June 23, 1993, adding Eleftherios Halivopoulos, M.D., also a board certified pediatrician, as a defendant.

 Neal Carter was born on December 15, 1983, at the John F. Kennedy Hospital in Orange, New Jersey. Upon observing various abnormalities in the newborn infant, including a flattened lower lip, a large head and only two umbilical veins, the attending obstetrician, Dr. Drucker (who is not a defendant in this action) referred plaintiffs to defendants Metuchen, Dr. Tuma and Dr. Halivopoulos for both in-patient newborn care as well as follow-up pediatric treatment. The infant remained under the care of these doctors until July 1, 1984. In April 1984, the child also was examined by defendant Dr. Taft at UMDNJ. Sometime in 1984, plaintiffs relocated to Maryland where Neal received pediatric and neurological care from various physicians in the Washington, D.C. area. Subsequent to this move the named defendants rendered no further medical care to the infant.

 Plaintiffs Gail and Craig Carter assert that when they left the care of defendants, they were unaware that Neal was suffering from any type of neurological impairment. See Deposition of Gail P. Carter, at 48:5-9. Although Gail Carter testified that she first observed developmental problems with Neal in the first year of his life, plaintiffs insist that, because of statements made by Drs. Tuma and Taft, they had no reason to believe that Neal was suffering from any neurological abnormality. *fn2"

 In 1987, Mr. and Mrs. Carter consulted an attorney regarding the medical care provided to Neal. Deposition of Gail P. Carter, at 116:19-24. Plaintiffs assert that at the time they consulted this attorney they had no reason to know that Neal's medical problems were related to the medical care rendered by defendants. They argue that "this determination could not have been made until 1990, after plaintiffs' attorneys had obtained all of Neal Carter's medical records and had them reviewed by experts. Plaintiffs' Brief at 3. The attorney consulted by plaintiffs did, however, forward authorizations from plaintiffs for the release of Neal's medical records in April 1987, to Dr. Tuma and Dr. Taft. Defendants' Exhibit B. There is nothing before the Court to indicate when those materials were actually forwarded to the attorney for review, but the authorizations clearly establish that all of the medical records were available for review in April 1987. Thereafter, in 1990 plaintiffs obtained an opinion from a medical expert that the care rendered by defendants was below acceptable standards. The present action was subsequently instituted.

 DISCUSSION

 According to Rule 56, summary judgment may only be granted if, from an examination of the pleadings and the proofs before the court, no genuine issue as to a material fact remains for trial and the movant is entitled to judgment as a matter of law. See Goodman v. Mead Johnson & Co., 534 F.2d 566, 573 (3d Cir.), cert. denied, 429 U.S. 1038, 50 L. Ed. 2d 748, 97 S. Ct. 732 (1977). Inferences flowing from the proofs before the court must be viewed in the light most favorable to the non-moving party. Id. Summary judgment may be granted against a party who fails to adduce facts sufficient to establish the existence of any element essential to that party's case, for which that party will bear the burden of proof at trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). The moving party bears the initial burden of identifying evidence which demonstrates the absence of genuine issue of material fact. Celotex, 477 U.S. at 322-23. Once that burden has been met, the non-moving party must set forth "specific facts showing that there is a genuine issue for trial," or the factual record will be taken as presented by the moving party and judgment will be entered as a matter of law. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986) (quoting Fed.R.Civ.P. 56(e)).

 The instant summary judgment motion is directed solely at the adult plaintiffs's claims for (1) the extraordinary medical expenses incurred in providing their son the necessary medical care and (2) loss of consortium, companionship, society and services of their son. I will address each claim in seriatim.

 A. Claim for Extraordinary Medical Expenses

 Defendants contend that the adult plaintiffs' claims are barred by the applicable two year statute of limitations, which provides:

 
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.

 N.J.S.A. 2A:14-2 (West 1987). While the statute is explicit in its mandate that a negligence action be brought within two years of its accrual, it is silent as to when the accrual of any such cause of action in fact occurs. See Goodman v. Mead Johnson & Co., 534 F.2d 566, 570 (3d Cir. 1976).

 In its first effort to determine the moment of accrual, the New Jersey Supreme Court held that the two year limitations period did not begin to run until the plaintiff knew or had reason to know of the post-operative presence of a foreign object in her body. See generally Fernandi v. Strully, 35 N.J. 434, 173 A.2d 277 (1961). In time, the court articulated the present discovery rule, under which "a cause of action will be held not to accrue until the injured party discovers, or by an exercise of reasonable diligence and intelligence should have discovered that he may have a basis for an actionable claim. Lopez v. Swyer, 62 N.J. 267, 272, 300 A.2d 563 (1973). Furthermore, the court held that the burden of avoiding the statutory time bar rests upon the party seeking the discovery rule's particular indulgence. Lopez, 62 N.J. at 276, 300 A.2d 563. Indeed, the plaintiff must establish that she did not know the fact of the injury's existence or to whom the injury was attributable, nor could she, under all of the circumstances, reasonably have known it. Id. at 276 n. 4, 300 A.2d 563.

 Plaintiffs filed the instant Complaint on August 16, 1991. Consequently, in order to avoid dismissal on the basis of the expiration of the statute of limitations, plaintiffs' cause of action must not have accrued prior to August 16, 1989. In an effort to employ the aforementioned discovery rule, plaintiffs assert that their claim did not accrue until 1990 when they received confirmation from a medical expert that the doctors named in the Complaint were negligent in failing properly to diagnose and treat Neal's condition. Defendants conversely contend that the cause of action accrued when the adult plaintiffs first visited an attorney in 1987 regarding the medical care rendered to Neal.

 I am satisfied that the undisputed facts establish the plaintiffs' cause of action was known or should have been known to plaintiffs prior to August 16, 1989. *fn3" The deposition testimony reveals that Mrs. Carter observed abnormalities in Neal's development in the first year of his life. Admittedly, the Carters may have been misled by the reassurances of Drs. Tuma and Taft that Neal's head circumference was normal and as such it could be reasonably inferred that while under the care of these physicians, plaintiffs could not reasonably have known that a cause of action existed.

 However, this inference, though reasonable, does not constrain me in any way since it is clear that in 1987 the adult plaintiffs at the very least strongly suspected possible negligence in the level of care defendants provided to Neal. The proofs indicate that at sometime in 1984, the Carters relocated to Maryland and Neal subsequently received treatment from physicians in the Washington, D.C. area. Neither party has informed the Court as to what type of medical treatments and analyses were performed during this period and at what point in time plaintiffs were actually told that Neal suffered from hydrocephalus. It is undisputed that as early as April 1987, however, the parents consulted an attorney regarding the care rendered to Neal by defendants. Moreover, in that same month the adult plaintiffs authorized defendants to release Neal's medical records.

 But, it was not until almost three years following the authorization of the release of the records that plaintiffs obtained an expert medical opinion that defendants were negligent in their care for Neal. Instead of proffering an explanation for this delay, plaintiffs merely assert that they did not know at that time that Neal's medical problems were related to the care rendered by defendants and could not have known until they obtained expert medical determination in 1990. But any contention that the cause of action did not accrue until plaintiffs received confirmation from medical experts that the care rendered to Neal was below acceptable standards is contrary to New Jersey law. See Brizak v. Needle, 239 N.J. Super. 415, 426-27, 571 A.2d 975 (App. Div.), certif. denied, 122 N.J. 164, 5 ...


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