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Mancuso v. Neckles

November 10, 1998

PIA MANCUSO AND LENNY MANCUSO, HER HUSBAND, PLAINTIFFS-APPELLANTS,
v.
SPERO NECKLES, M.D., BY PETER J. NECKLES, AS ADMINISTRATOR OF THE ESTATE OF SPERO NECKLES; KARL G. KLINGES, M.D., DAVID G. BUTLER, M.D., JAMES C. VAN ELSWYK, M.D., SPERO NECKLES, M.D., PROFESSIONAL ASSOCIATION ALSO KNOWN AS DRS. KLINGES, BUTLER, VAN ELSWYK, NECKLES, P.A.; HERBERT A. GOLDFARB, M.D.; HERBERT A. GOLDFARB, M.D., P.A.; MONTCLAIR IMAGING CENTER; AND STEVEN SIRECI, M.D., DEFENDANTS, AND CLIFFORD BEINART, M.D., DEFENDANT-RESPONDENT.



Before Judges Muir, Jr., Eichen, and Coburn.

The opinion of the court was delivered by: Coburn, J.A.D.

[9]    Argued October 14, 1998

On appeal from the Superior Court of New Jersey, Law Division, Bergen County.

In this medical malpractice case, the Law Division Judge granted summary judgment to the remaining defendant, Clifford Beinart, M.D. On appeal, plaintiffs, Pia Mancuso and her husband, Lenny Mancuso, who sues per quod, contend that the Judge erred in dismissing their case on the ground that the statute of limitations had run by misapplying the discovery rule of Lopez v. Swyer, 62 N.J. 267 (1973). We disagree, and therefore, we affirm the judgment.

The relevant facts are not in dispute. *fn1 On two occasions, the first in 1988 and the second in 1989, Pia Mancuso, hereinafter referred to as plaintiff, had mammography (radiological studies of the breasts) performed at the Montclair Imaging Center. Dr. Beinart, a radiologist, interpreted the films and prepared and signed mammogram reports for plaintiff's physician. In each instance, Dr. Beinart noted the existence of a cyst as a possible abnormality of the right breast and described the cyst as "most likely benign." In the first report, he recommended a follow-up mammogram in six months, and in the second report he recommended another mammography in a year. He had no further involvement with plaintiff.

In June 1991, plaintiff entered Holy Name Hospital for a hysterectomy, which included a mammogram as part of the pre-operative work-up. Plaintiff arranged for her 1988 and 1989 mammogram films to be sent to the hospital as a baseline. A radiologist found ovoid densities in the right breast and recommended to plaintiff's surgeon, Spero Neckles, that she undergo a follow-up mammogram in four months. Plaintiff contends that Dr. Neckles failed to advise her of either the abnormal findings or the recommendation for a follow-up in four months. These allegedly abnormal findings and the failure to provide plaintiff with appropriate advice in relation to them formed the initial basis for this civil action.

On July 8, 1992, plaintiff underwent another mammography. The report indicated the cyst identified in the 1988 and 1989 films had not changed, but it also revealed the existence of a suspected malignancy in the right breast in the area of the ovoid densities. Shortly thereafter, the cancer in the right breast, and its extension into eighteen lymph nodes, was confirmed.

Because of the extent of her tumor and metastases to her lymph nodes, plaintiff was confronted with an extremely poor prognosis. Consequently, she underwent an autologous bone marrow transplant and months of debilitating radiation therapy. In December 1992, shortly before the transplant, plaintiff learned for the first time of the abnormality reflected by the June 1991 mammogram and the radiologist's recommendation for a four month follow-up mammogram.

In June 1993, plaintiff consulted counsel with her immediate concern being the failure of Dr. Neckles in June 1991 to advise her of the recommendation for a follow-up mammogram in four months. Plaintiff certifies that at no time did she suspect that her 1988 or 1989 mammogram had been misread. The retainer agreement indicated that she felt the responsible party was defendant Spero Neckles, the surgeon who performed the hysterectomy in June 1991. However, the retainer also said that she was retaining the law firm to "make a claim on [her] behalf against others who are responsible for [her] injuries or damages."

Acting pursuant to the retainer, plaintiff's counsel submitted all of plaintiff's mammograms to a radiologist. On June 24, 1994, the radiologist, Stephen V. LoCurcio, M.D., reported that in his opinion there had been malpractice in 1991, not with respect to the reading of the mammogram by that radiologist, but because of the failure of the surgeon to recommend follow-up studies in a timely fashion. However, with respect to Dr. Beinart's interpretations of the 1988 and 1989 mammographies, LoCurcio said, "I agree with . . . the . . . interpretations and reports . . . . I would have reached the same Conclusion and [rendered] similar reports as [the] Radiologist!"

Plaintiff filed suit on July 6, 1994, against Neckles, his partners, and their medical group on the basis suggested by Dr. LoCurcio. On February 4, 1997, as a result of reviewing defense expert reports that pointed a finger at additional physicians, including the April 25, 1996 report of Dr. Richard Creech, plaintiff filed an amended complaint adding as defendants Drs. Sireci and Goldfarb, and the Montclair Imaging Center.

Creech's report included this statement: "In retrospect, this area represented an early breast cancer that can be seen on the November 3, 1989 films." As a result of Creech's comment, plaintiff's counsel asked Dr. Howard Miller to review the 1988 and 1989 films. Dr. Miller submitted a report on November 22, 1996, indicating that a possible malignancy was evident on those films and that the interpreting physician had "deviated from accepted standards of radiological care." Neither Creech nor Miller referred to Dr. Beinart by name, and plaintiff's counsel certified that he did not learn of Beinart by name until April 25, 1997, when an attorney for one of the other defendants provided the information in response to a letter mailed ten days earlier. However, as noted above, Dr. Beinart signed his reports in 1988 and 1989, and plaintiffs had copies of them. Even assuming that his signature was difficult to read, there is no evidence that he could not have been identified as easily in 1993 as he was in 1997. On July 7, 1997, plaintiff obtained court approval for the filing of a second amended complaint adding Dr. Beinart to the case as a defendant. The second amended complaint was filed on July 14, 1997, and an answer, raising the statute of limitations defense, was filed on September 11, 1997.

The statute of limitations governing actions for personal injuries requires a plaintiff to commence the action within two years after the cause of action shall have accrued. N.J.S.A. 2A:14-2. Medical malpractice actions generally accrue on the date the alleged act or omission occurred. Bauer v. Bowen, 63 N.J. Super. 225, 230-31 (App. Div. 1960). However, the discovery rule is always potentially available to ameliorate the harsh results that would flow from a rigid adherence to the general rule. See Lopez v. Swyer, supra, 62 N.J. at 273-74. The discovery rule delays the accrual of the cause of action until "the injured ...


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