On appeal from the Superior Court of New Jersey, Law Division, Camden County.
Shebell and Long. The opinion of the court was delivered by Shebell, P.J.A.D.
Plaintiff, Frank G. Kisselbach, as an individual and as administrator ad prosequendum of the estate of his father, Frank H. Kisselbach, brought suit on December 20, 1990, against defendants, County of Camden and Lakeland Hospital (County defendants), and Care Inn. These defendants operated medical or nursing facilities in which decedent had been treated during the last year and a half of his life. The complaint and amended complaint alleged negligence and malpractice, intentional torts and wrongful death. The entire suit was eventually dismissed by the grant of a series of partial summary judgment motions. The counts of intentional torts as against the County defendants were dismissed under the Tort Claims Act. The wrongful death counts were dismissed due to the alleged lack of qualification of plaintiff's expert. Finally, the survival action counts were held to be barred by the statute of limitations. After final judgment, plaintiff presented an additional report by a medical expert, however, plaintiff's motion to reinstate the wrongful death counts was denied.
Plaintiff seeks reversal because: (1) the statute of limitations was erroneously applied in that the power of attorney making plaintiff the decedent's attorney-in-fact did not enable him to sue on the decedent's behalf while decedent was alive; (2) the power of attorney was defective, and thus without legal effect; (3) the motion to reinstate the wrongful death claims was timely; and (4) the additional medical report required vacation of the partial summary judgment on the wrongful death count.
Plaintiff's amended complaint contained seven counts. Count one alleged wrongful death by reason of negligent care by Care Inn; count two alleged the same against the County defendants; count three alleged wrongful death caused by negligent care provided by the John Doe defendants at Care Inn; count four alleged negligent care by the John Doe defendants at Lakeland Hospital; count five alleged wrongful death against all defendants; count six alleged outrageous and intentional infliction of emotional distress by all defendants; and count seven alleged intentional, wrongful, wanton and reckless misconduct against all defendants.
In April 1992, the County defendants moved for summary judgment seeking to dismiss: counts two and four based on the bar of the statute of limitations; counts two, four and five based on failure to provide expert reports; and counts six and seven based on the public entity immunity from liability for the intentional acts of employees provided in the Tort Claims Act, N.J.S.A. 59:2-10. Care Inn joined in the motion. Plaintiff conceded that counts six and seven should be dismissed as to the County defendants only, but argued that the survival counts were timely because they had been tolled by the decedent's insanity, and that an extension of time to provide expert reports should be afforded to plaintiff.
Oral argument was held on May 29, 1992, and on June 9, 1992, an order was entered that dismissed counts six and seven as to the County defendants. The Judge in that order scheduled a Lopez hearing*fn1 at which plaintiff was to produce evidence of the decedent's insanity. He also required that plaintiff produce expert reports and answer interrogatories.
On October 21, 1992, plaintiff produced an expert report dated July 13, 1992, by William L. Nellis, a hospital administrator, and a supplemental report dated October 15, 1992. The Judge ruled that the reports were sufficient to withstand summary judgment motions on the negligence and malpractice claims, but not on the
wrongful death claim. He dismissed both the County defendants and Care Inn on the wrongful death claim (count five). In his order of November 2, 1992, the Judge granted the motions to dismiss the wrongful death claim as against both the County defendants and Care Inn. He denied the motions to dismiss the negligence and malpractice claims subject to later determinations as to compliance with the statute of limitations.
On November 4, 1992, the court conducted a Lopez hearing to determine whether plaintiff was entitled to relief from the statute of limitations bar of N.J.S.A. 2A:14-2.
The court issued an opinion finding that the decedent was "insane" for the purposes of N.J.S.A. 2A:14-21 almost from the time of his admission to Care Inn on December 2, 1987, until the time of his death at Kennedy Memorial Hospital on December 20, 1988. The Judge held, however, that based on the power of attorney executed by decedent on March 25, 1987, plaintiff could have sued on behalf of his father and, therefore, the statute was not tolled. The Judge also held that plaintiff knew of the factual basis for the cause of action at least by December 8, 1988, which would render untimely any claim filed after December 8, 1990. Therefore, the remainder of the complaint against the County defendants and Care Inn was dismissed based on the statute of limitations bar.
On December 15, 1992, the court ordered dismissal of all counts remaining against Care Inn. On December 21, 1992, plaintiff filed a motion to vacate the November 2, 1992 order dismissing the wrongful death claims. After a hearing on January 8, 1993, the court, after reviewing a medical report and opinion submitted by plaintiff, denied that motion.
The undisputed facts reflect that on March 25, 1987, the decedent executed a power of attorney in favor of his son, Frank G. Kisselbach. Between December 2, 1987, and the decedent's death on December 20, 1988, at the age of 89, he was a patient in various institutions, including the facilities of defendants ...