On appeal from the Superior Court of New Jersey, Law Division, Bergen County.
As Corrected May 28, 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 STERN, J.A.D.
Plaintiff Eleanor Baird appeals from the dismissal of her complaint filed in February 1992 against the manufacturer of her intraocular lens (IOL), American Medical Optics (AMO), the physician who implanted it during surgery in 1983, Frederick Newman, M.D., and the hospital where the operation occurred, Valley Hospital. The case against the IOL manufacturer was dismissed on grounds of federal preemption. The hospital was granted summary judgment based on its lack of duty to obtain "informed consent." The case against Dr. Newman was dismissed on statute of limitations grounds because the trial Judge concluded after a Lopez hearing, *fn1 that the plaintiff's cause of action accrued "no later than 1987." The Judge who dismissed the action against Newman reasoned that plaintiff "was well-aware that she had a problem, she was well-aware that it came from the surgery," became "dissatisfied with the treatment by Dr. Newman" shortly after the surgery, and "switched to other physicians" by 1985.
We reverse the grant of summary judgment to each defendant.
In 1983, Eleanor Baird (plaintiff) consulted Dr. Newman, an ophthalmologist, because she was "having trouble" with the vision in her left eye. Upon examination, Dr. Newman explained to her that she had a cataract in her left eye. Plaintiff testified that, upon diagnosis, Dr. Newman "said [she] was going to need an operation, have the cataract removed and an implant put in." Plaintiff further testified that aside from arrangements to go to the hospital, "nothing much" was explained to her about the implant. According to plaintiff, Dr. Newman never asked if she would "participate in a study to determine if the lens is safe." Plaintiff maintains that she would not have "participated," if she had been asked. She also asserts that the doctor never "told [her] that the lens was not approved," and that she would not have "submitted to the surgery" if she knew that.
Dr. Newman removed the cataract on November 8, 1983 and implanted the IOL in plaintiff's left eye. Plaintiff testified that after the surgery Dr. Newman advised plaintiff and her husband that she "would have to stay [in the hospital for] at least three days because there was a problem. He never told me what the problem was or anything." Plaintiff continued to have problems with her eye, consulted other doctors and ultimately learned in the late 1980's that the sight in her left eye "was gone."
One of plaintiff's daughters, who attended to her during the surgery and related hospitalization and on subsequent visits to Dr. Newman, testified that the doctor never told her mother that the lens was not FDA approved; that her father would never have allowed her mother to receive an experimental lens in her eye, and that Dr. Newman never told her that anything was wrong with the lens. Another daughter testified that she "never thought Dr. Newman would . . . give her the lens that wasn't approved."
On March 24, 1991, plaintiff read an article in the Bergen Record regarding problems with IOLs. Because the problems "sounded so much like what [she] had experienced," she contacted an attorney. Upon subsequent inquiry, plaintiff learned that an experimental IOL had been implanted in her eye.
It is uncontested that plaintiff signed an "Informed Consent Form for Cataract Operation and/or Implantation of Intraocular Lenses" indicating the risks of the implant surgery and detailing alternatives. Plaintiff signed the line "I wish to have a cataract operation with an intraocular implant." The form contained information to the effect that plaintiff understood she was "taking part" in a "clinical investigation." At the Lopez hearing, plaintiff acknowledged signing the form, but said she did not "remember" doing it and insisted that neither the doctor nor the nurse explained the form to her.
We reverse the grant of summary judgment to Dr. Newman for the reasons detailed in Lombardo v. Borsky, 298 N.J. Super. 658, 690 A.2d 150 (App. Div. 1997). We remand for further consideration of the informed consent claim against him. *fn2 Lombardo involved a similar claim and we reversed on discovery-rule grounds. In this case, as in Lombardo, there is no contest as to when plaintiff learned of the implantation of an experimental lens. The motion Judge expressly found that plaintiff "was very candid . . . [and] straight-forward with the Court."
It is undisputed that Plaintiff was not aware the implanted lens was an experimental IOL until March 1991 and her complaint was filed within a year thereafter. Under these circumstances, the statute of ...