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Mancuso v. Neckles

February 16, 2000

PIA MANCUSO AND LENNY MANCUSO, HER HUSBAND, PLAINTIFFS-APPELLANTS,
V.
SPERO NECKLES, M.D., BY PETER J. NECKLES, 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; STEVEN SIRECI, M.D. AND JOHN DOE 6 THROUGH 7 (BEING FICTITIOUS NAMES, TRUE NAMES PRESENTLY UNKNOWN), DEFENDANTS,
AND
CLIFFORD BEINART, M.D., DEFENDANT-RESPONDENT.



The opinion of the court was delivered by: O'hern, J.

Argued November 8, 1999

On certification to the Superior Court, Appellate Division, whose opinion is reported at 316 N.J. Super. 128 (1998).

This appeal and that in Gallagher v. Burdette-Tomlin Medical Hospital, ___ N.J. ___ (2000), also decided today, present difficult exercises in the application of the discovery rule. Each case arises in the context of a claim for medical malpractice.

"The history and principles underlying the discovery rule have been examined by us on numerous occasions." Abboud v. Viscomi, 111 N.J. 56, 62 (1988)(citing Vispisiano v. Ashland Chem. Co., 107 N.J. 416, 425-27 (1987)).

Suffice it to say that the rule's "essential purpose * * * is to avoid harsh results that otherwise would flow from mechanical application of a statute of limitations." [Vispisiano, supra, 107 N.J.] at 426. Accordingly, the doctrine "postpon[es] the accrual of a cause of action" so long as a party reasonably is unaware either that he [or she] has been injured, or that the injury is due to the fault or neglect of an identifiable individual or entity. Id. at 426-27; accord Lynch v. Rubacky, 85 N.J. 65, 70 (1981); Lopez v. Swyer, [62 N.J. 267, 274 (1973)]. Once a person knows or has reason to know of this information, his or her claim has accrued since, at that point, he or she is actually or constructively aware "of that state of facts which may equate in law with a cause of action." Burd v. New Jersey Tel. Co., 76 N.J. 284, 291 (1978). [Abboud v. Viscomi, supra, 111 N.J. at 62-63.]

The linchpin of the discovery rule is the unfairness of barring claims of unknowing parties. Statutes of limitations are primarily statutes of repose. They are designed to stimulate litigants to pursue their actions diligently.

They penalize dilatoriness and serve as measures of repose. * * * When a plaintiff knows or has reason to know that he [or she] has a cause of action against an identifiable defendant and voluntarily sleeps on his [or her] rights so long as to permit the customary period of limitations to expire, the pertinent considerations of individual justice as well as the broader considerations of repose, coincide to bar his [or her] action. Where, however, the plaintiff does not know or have reason to know that he [or she] has a cause of action against an identifiable defendant until after the normal period of limitations has expired, the considerations of individual justice and the considerations of repose are in conflict and other factors may fairly be brought into play.

[Farrell v. Votator Div. of Chemetron Corp., 62 N.J. 111, 115 (1973) (citation omitted).]

To reach a just accommodation of these considerations, courts have developed the so-called "discovery" principle adopted first in New Jersey in Fernandi v. Strully, 35 N.J. 434 (1961).

I.

The facts of the case are more fully set forth in the opinion of the Appellate Division reported at 316 N.J. Super. 128 (App. Div. 1998). The plaintiff, Pia Mancuso, is a breast cancer victim whose relevant mammography history began in 1988 when she was thirty-seven-years-old. Because her breast cancer was not timely diagnosed until 1992, she has had to undergo bone marrow transplants and debilitating radiation therapy. Her chance of surviving the cancer may have been reduced. Plaintiff asserts that she had no reason to be aware until April 1996 that a mammogram taken in 1989 may have been misread. In 1996, she was alerted to that misreading by an expert report prepared for a defendant in this case. As a result, plaintiff contends that her malpractice claim filed within two years of that date in 1996 was within the two-year statute of limitations. Here is the time line in summary form:

Date The Medical Procedures or Legal Steps The Indicators Taken to the Patient of Fault or Neglect of a Treating Doctor 1988/ The patient, Pia Mancuso, undergoes two None. 1989 routine mammograms. The radiologist, Dr. Beinart, reads them as showing a benign cyst in the patient's right breast. 1991 The patient has a mammogram anticipatoryNone. The to an hysterectomy. The patient patient was not arranges to have the 1988/1989 films informed of any sent to Dr. Sireci, the radiologist abnormalities in interpreting the 1991 film. Dr. Sireci the mammogram interprets the 1991 film and reviewed films or of the the 1988/1999 films for comparison. Theadvice to Dr. radiologist observes, in the 1991 Neckles. films,"ovoid densities" (nodules or lesions) in the patient's right breast and cautions the surgeon, Dr. Neckles, to order follow-up studies within four months. July 1992 The patient has a mammogram that None. discloses the onset of cancer. The radiologist's report indicated that the cyst identified in the 1988/1989 films had not changed but that a disturbance in the same area revealed suspected malignancy. Later tests revealed that the tumor was cancerous and had spread to the lymph nodes. December Because of the extent of her tumor and For the first 1992 its spread, the patient endures bone time, the marrow transplant and months of patient learns chemotherapy. of the abnormalities shown in the 1991 pre-hysterectomy film and the radiologist's recommendation of a four-month follow-up. June 1993 The patient consults an attorney because of her concern about Dr. Neckles' failure to follow up. June 1994 The attorney submits all the patient's The expert medical reports to a qualified medical reports that expert. medical malpractice took place in 1991 when Dr. Neckles failed to order follow-up studies. July 1994The attorney files suit against Dr. No indication of Neckles (the physician identified by thefault other than patient's expert as the physician whose on the part of fault had caused the patient's cancer toDr. Neckles whom spread), his medical partners and a the patient has number of John Doe defendants. sued within the two years of December 1992 - the date when she was informed that his fault may have caused the cancer to spread. April 1996 Dr. Neckles' expert witness submits a The patient for report that expresses an opinion that the first time the 1989 mammogram showed a possible is informed that malignancy. Dr. Beinart may have failed to read the 1989 mammogram correctly. November1996The patient's attorney retains a new expert who reports that a possible malignancy was evident in the 1989 mammographic films and that Dr. Beinart who interpreted the films "deviated from accepted standards of radiological care." The patient files an amended complaint to include Dr. Beinart as an added July 1997 defendant.

II.

The trial court dismissed plaintiff's complaint against Dr. Beinart on the basis that the statute of limitations had run. The Appellate Division affirmed ...


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