On appeal from the Superior Court of New Jersey, Law Division, Middlesex County.
Before Judges Long, Kleiner and Kimmelman.
The opinion of the court was delivered by: Kleiner, J.A.D.
Plaintiff, Sylvia Bennett, appeals from the grant of summary judgment to defendants, Theodore Pearlman, M.D. and St. Clare's Riverside Hospital, *fn1 on plaintiff's complaint alleging that on September 22, 1982, plaintiff "submitted herself to the medical care and attention of [defendant] for the purpose of cataract removal and intraocular lens implant" and that "defendant was careless and negligent" because "he failed to advise the plaintiff that the lens which he intended to insert into plaintiff's eye . . . had not been approved by the Food & Drug Administration for any use other than investigational . . . ." Plaintiff's complaint also asserted that defendant "failed to advise [her] of choices that were available in terms of operative procedure, including procedures which would have allowed the use of a posterior chamber lens reducing the risk of injury . . . ."
The implantation of an intraocular lens in cataract surgery was first discussed in New Jersey in a reported decision in Lombardo v. Borsky, 298 N.J. Super. 658 (App. Div.), certif. granted, 150 N.J. 28 (1997), appeal dismissed, 153 N.J. 44 (1998), decided after the trial Judge's decision in this case. In Lombardo, the defendant Dr. Borsky, an ophthalmologist, implanted a Surgidev Leiske Style 10 intraocular lens into plaintiff's right eye in March 1982. Id. at 661. The plaintiff's complaint was premised solely on the failure of Dr. Borsky to obtain her informed consent prior to the 1982 surgery. Ibid. The trial Judge conducted a Lopez hearing, pursuant to Lopez v. Swyer, 62 N.J. 267 (1973), after which this court noted that "[t]he 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.'" Id. at 662. The trial Judge concluded that the plaintiff knew her lens was defective, at the latest, in January 1988, and thus her complaint filed on May 24, 1991, was untimely filed and barred by the two-year statute of limitations, N.J.S.A. 2A:14-2. Id. at 663.
Although the plaintiff in Lombardo was certainly aware in 1988, at the latest, that there was something wrong with the intraocular lens Dr. Borsky had implanted in her eye in March 1982, see id. at 662, this court reviewed the testimony presented at the Lopez hearing and concluded:
Before us Dr. Borsky's counsel candidly acknowledges that plaintiff's testimony indicated she did not learn the lens was experimental before late 1990 or early 1991, that the Judge did not find her incredible in this regard, and that counsel has no basis for suggesting that she knew earlier. As a result, we reverse the dismissal of plaintiff's complaint filed in May 1991 against defendants, and remand for further proceeding on the claim of informed consent.
Following Lombardo, the same appellate panel decided Baird v. American Med. Optics, 301 N.J. Super. 7 (App. Div.), certif. granted, 151 N.J. 467 (1997). In Baird, the plaintiff filed a complaint in February 1992 against the manufacturer of her intraocular lens, the physician who implanted it during surgery in 1983, and the hospital where the surgery was performed. Id. at 9. On appeal, this court noted:
The Judge who dismissed the action against [the physician] 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 [the physician]" shortly after the surgery, and "switched to other physicians" by 1985.
Further, the plaintiff in Baird signed an "`Informed Consent Form for Cataract Operation and/or Implantation of Intraocular Lenses' indicating the risks of the implant surgery and detailing alternatives." Id. at 11.
Still, in reviewing the testimony of the Lopez hearing, this court concluded that the plaintiff did not become aware that the implanted lens was experimental until March 1991, and thus her informed consent claim filed in February 1992 was timely filed. Id. at 11-12. We reversed the trial court and remanded for further proceedings on the plaintiff's informed consent claim. Id. at 19.
We respectfully disagree with this court's reasoning in both Lombardo and Baird, and hold that under circumstances almost identical to those two cases, plaintiff's informed consent claim here was properly time-barred. According to plaintiff's complaint, pre-trial deposition testimony and testimony at the Lopez hearing, she suffered extreme post-surgical complications. Despite those complications, plaintiff continued to see defendant. Ultimately, she changed her physician and was seen by a Dr. Greenspan. When plaintiff's complaints were not remedied, Dr. Greenspan referred her to a Dr. Witland, whom she first consulted in either December 1989 or January 1990, and who informed plaintiff that the intraocular lens implanted on September 22, ...