On appeal from the Superior Court of New Jersey, Law Division, Middlesex County.
Approved for Publication March 21, 1997.
Before Judges Pressler, Stern and Humphreys. The opinion of the court was delivered by Stern, J.A.D.
The opinion of the court was delivered by: Stern
The opinion of the court was delivered by
Plaintiff appeals from an order dismissing her complaint against defendants, Martin Borsky, M.D., and St. Peter's Medical Center, alleging the failure to obtain informed consent before Dr. Borsky implanted an experimental intraocular lens into plaintiff's right eye. *fn1 The order was entered after a "Lopez hearing." See Lopez v. Swyer, 62 N.J. 267, 300 A.2d 563 (1973). The trial Judge "concluded that as of January 1988 at the latest, the plaintiff was aware of sufficient facts which would alert a reasonable person that the conduct of third parties had caused or contributed to her injuries and that said third parties might be at fault." As a result, the Judge dismissed the action which was filed on May 24, 1991, because "plaintiff did not file suit within the applicable period of time and that the Statute of Limitations was not tolled beyond January 1988." *fn2
It was undisputed for purposes of the motion for summary judgment that in March 1982 Dr. Borsky, an ophthalmologist, implanted a Surgidev Leiske Style 10 intraocular lens into plaintiff's right eye. For purposes of this appeal and to give defendants the benefit of all legitimate inferences, we will incorporate Borsky's recitation in his appellate brief of the facts developed at the Lopez hearing:
Plaintiff testified that shortly after the plaintiff's surgery she experienced consequences which were unexpected because Dr. Borsky had never told her of them. After Dr. Borsky's surgery, she expected no pain in the eye but had pain. She expected no worsening of her vision but her vision got worse right after the surgery. It continued to get worse and never got better. This development of unexpected problems began her suspicion that the lens and the surgery Dr. Borsky had performed had caused her injury, the possibility of which he had never warned her.
In 1985 Mrs. Lombardo travelled to New York City to see Dr. Dunn and Dr. Cotliar, two eye physicians. At the doctors' office in New York City the plaintiff's initial suspicions were confirmed and plaintiff was told she was blind by Dr. Dunn and was told the lens implanted by Dr. Borsky was cutting into her cornea. This was another unexpected complication which had never been warned of by Dr. Borsky.
In 1987 Mrs. Lombardo went to Wills Eye Hospital and saw Dr. Kane and Dr. Laibson. During these examinations she was told that the lens implanted by Dr. Borsky should be removed from the eye because the cornea was being damaged by the lens. Dr. Kane also told her that day the lens implanted by Dr. Borsky was the wrong size because it was too small. As a result of these conversations with the doctors in New York and Philadelphia and her own reasoning as to the development of these significant, unexpected and unwarned of complications by Dr. Borsky, she concluded that Dr. Borsky's operation had caused her the post-operative pain and caused the lens to cut into her cornea. In addition to concluding that his operation had caused her these injuries, she concluded Dr. Borsky had not done something right during his surgery. Mrs. Lombardo testified she thought Dr. Borsky did something wrong because she could not see out of her eye after he got done with her. She came to this Conclusion after she first developed ulcers, which was before she saw Dr. Laibson in 1987.
Although Mrs. Lombardo returned to Dr. Borsky's care in 1988 after Dr. Laibson's surgery, she unwaveringly continued to believe that he had done something wrong to cause her injury. When she returned to him she did not trust and she did not ask him as to whether he had done anything wrong. Thus, during the continuing care after she returned to him, he did not say anything about the surgery and the cause of her injuries, and did nothing to mislead her or change her thinking regarding the cause of her injury.
[(Record citations omitted.)]
The trial Judge believed the issue before him related to "when the plaintiff found information which reasonably could have lead [sic ] her to believe that she had a cause of action against the doctor for failure to tell her about the risks of the lens." The Judge concluded:
It's my determination that at the latest she became aware of that in January of 1988 when she concluded that or believed that the lens she had was defective and that the doctor had not told her about any risks from this defective lens and that the injury she was suffering was being caused by the lens and by extension the doctor's failure to tell her about it or failure to do something properly. I don't accept that may not have been enough if I believed that Dr. Borsky then undertook a course of trying to explain to her that this was not her problem and that all it was was the lens slipping rather than being defective. I can't really tell that Dr. Borsky kept telling her that or not but it was clear that she was only going back to Dr. Borsky, at least in my opinion, because Dr. Laibson was sending her back to Dr. Borsky, that she was sent back to him. She by this time I don't believe had much faith in him but nevertheless was going back because the doctor in Pennsylvania was telling her to go back there and he was her doctor and she would have to go there so she did go back there. I don't believe that she believed anything from him at ...