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Miller v. Estate of Sperling

January 22, 2001

CLETIS MILLER, INDIVIDUALLY AND AS EXECUTOR UNDER THE LAST WILL AND TESTAMENT OF ANN F. MILLER, DECEASED,
PLAINTIFF-APPELLANT,
V.
ESTATE OF WALTER SPERLING, COLETTA SPERLING, EXECUTRIX,
DEFENDANT-RESPONDENT.



The opinion of the court was delivered by: Zazzali, J.

Argued September 25, 2000

On certification to the Superior Court, Appellate Division, whose opinion is reported at 326 N.J. Super. 572 (1999).

The issue here is whether a plaintiff's failure to timely file a medical malpractice claim precludes a later wrongful death action arising out of the alleged malpractice.

Dr. Sperling treated plaintiff's wife from the early 1960s until 1985. During that period, Dr. Sperling prescribed a medication for her that allegedly was taken off the market because of adverse side effects. Plaintiff's wife passed away in 1996 without filing a medical malpractice action. Plaintiff filed suit two years later, alleging that improper treatment caused his wife's death. The Law Division granted summary judgment, Brill v. Guardian Life Ins. Co., 142 N.J. 520, 523 (1995), dismissing plaintiff's claims, and the Appellate Division affirmed, reasoning that a wrongful death action is derivative in nature and therefore contingent upon a viable malpractice action. Miller v. Estate of Sperling, 326 N.J. Super. 572, 583-84 (App. Div. 1999). Because a wrongful death claim is an independent cause of action that cannot be extinguished by the failure of a decedent to maintain a medical malpractice action within the applicable limitations period, we reverse.

I.

Giving plaintiff the benefit of all reasonable inferences, Brill, supra, 142 N.J. at 523, the facts are as follows.

Dr. Walter Sperling treated both plaintiff, Cletis Miller, and his wife, Ann T. Miller, from the early 1960s until 1985. Plaintiff claims that in 1972 Dr. Sperling prescribed birth control medication for Ann called Ovulen 28. She took that medication until 1985. According to plaintiff, however, Dr. Sperling did not tell Ann that the prescription was for a birth control medication, but told her that it was a tranquilizer for her nerves. He did not tell either Ann or her husband the true nature of the prescription until an office visit in 1985. The Millers left the office and never spoke to Dr. Sperling again. Ann Miller ultimately discontinued taking Ovulen 28. Dr. Sperling retired shortly thereafter.*fn1

Plaintiff and Ann attempted, unsuccessfully, to have Dr. Sperling criminally prosecuted. They also tried to retain an attorney to sue Dr. Sperling, but were unable to do so. Despite those efforts, neither plaintiff nor his wife initiated an action for malpractice or any other claim against Dr. Sperling during Ann's lifetime.

On March 30, 1996, Ann died at the age of sixty-six. Her death certificate states that she died of a suspected acute myocardial infarction accompanied by chronic interstitial lung disease. Dr. Sperling died in 1997. His wife, Coletta, who served as executrix of his estate, also died during the pendency of this appeal.

On March 17, 1998, thirteen days before the expiration of the two-year statute of limitations for a wrongful death claim, plaintiff filed a handwritten pro se complaint against the estate of Dr. Sperling. The complaint stated that Dr. Sperling's improper prescription of Ovulen 28 proximately caused Ann's myocardial infarction, leading to her death. Thus, the complaint sounded in survivorship, medical malpractice, and wrongful death. As noted, plaintiff states that his wife took Ovulen 28 from 1972 until 1985. The pharmacy records submitted by him in discovery demonstrate only that Ovulen 28 was prescribed from 1974 to 1976. Defendant maintains that Dr. Sperling last prescribed the drug for plaintiff's wife in 1976. The estate's attorney represents that Dr. Sperling's office records for Ann Miller were discarded long before the complaint was filed. We do note that there was a suggestion by plaintiff's attorney at oral argument that medical records are in the possession of the Office of the Essex County Prosecutor.

Before the Law Division, defendant argued that plaintiff's claims were barred because he failed to comply with the two-year statute of limitations that governs medical malpractice claims, N.J.S.A. 2A:14-2. The Law Division, citing Baird v. American Optics, 155 N.J. 54, 66 (1998), found that plaintiff knew or should have known about his claims against Dr. Sperling in 1985 and granted summary judgment for the estate. The Law Division did not address plaintiff's claim for wrongful death.

Plaintiff appealed and retained present counsel after filing a pro se brief before the Appellate Division. Although not raised in the Appellate Division brief, plaintiff's counsel addressed the wrongful death claim at oral argument before that court. Counsel contended that the two-year wrongful death statute of limitations, N.J.S.A. 2A:31-3, governed plaintiff's claim that Dr. Sperling's conduct contributed to decedent's death in 1996. Because plaintiff filed that claim within two years of Ann's death, counsel asserted it was timely filed. Although noting that it could disregard that claim because it was not raised below, the Appellate Division nonetheless decided to address the issue "in the interest of justice." Miller, supra, 326 N.J. Super. at 578.

The Appellate Division affirmed the grant of summary judgment concluding that "even though [the wrongful death] claim did not ripen or ?accrue' until plaintiff's wife died, decedent's failure to bring a personal injury action before the statute of limitation[s] expired barred the action due to the death claim's derivative nature." Id. at 578 (citing Knabe v. Hudson Bus Transp. Co., 111 N.J.L. 333 (E. & A. 1933) (citation and footnote omitted)). The court reasoned that Knabe has binding precedential force because it was decided by this Court's predecessor, the Court of Errors and Appeals. Id. at 580. The Appellate Division also agreed with the rationale of that decision, stating, "[i]n our view, Knabe presents a sensible rule which has withstood the test of time." Id. at 581. Because the Appellate Division agreed that Ann's claim for medical malpractice was untimely, the panel also concluded that Knabe barred plaintiff's wrongful death claim. Id. at 584.

Finally, the Appellate Division determined that the application of Knabe to this case obviated the need for the court to reach defendant's contention that the Affidavit of Merit statute, N.J.S.A. 2A:53A-27, applied and also required dismissal of the complaint. Miller, supra, 326 N.J. Super. at 583.

This Court granted certification, 163 N.J. 397 (2000). We now overrule Knabe and hold that plaintiff filed a timely complaint for wrongful death.

II.

The view widely embraced at English common law was that, in the words of Lord Ellenborough, "in a civil court, the death of a human being could not be complained of as an injury." Baker v. Bolton, 170 Eng. Rep. 1033 (K.B. 1808). Many American courts followed the English common-law trend and resisted wrongful death claims because judges generally believed that such claims would improperly require them "to judicially calculate the value of human life; . . . would lead to endless cases with large verdicts; that . . . human life is sacred and it would be revolting to compensate its loss with money; and that it is impossible to calculate the pecuniary value of human life." Farley v. Sartin, 466 S.E.2d 522, 526 (W. Va. 1995) (citations omitted). Whether New Jersey followed that trend is still a subject of debate. Negron v. Llarena, 156 N.J. 296, 315-16 (1998) (Handler, J., concurring). "This rule remained the dominant view despite the illogical result that, under this rule, it was cheaper to kill one's victim than to merely injure him or her. For if one's victim were to live, the victim could bring an action against the tortfeasor. If the victim died, however, the right to bring an action met a similar fate." Gary A. Meadows, Wrongful Death and the Lost Society of the Unborn, 13 J. Legal Med. 99, 100 (1992).

The lack of a remedy for families of those who died because of the fault of another often led to destitution. W. Keeton, D. Dobbs, R. Keeton & D. Owen, Prosser & Keeton on the Law of Torts § 127 at 945 (5th ed. 1984). To alleviate that hardship, the English Parliament passed the Fatal Accidents Act of 1846, also known as Lord Campbell's Act. Ibid. Recognizing the need to protect beneficiaries, New York led this nation's movement with the 1847 passage of the first wrongful death act modeled after Lord Campbell's Act. 22A Am.Jur.2d Death §7 (1988). New Jersey followed suit in 1848 with L. 1848, p. 151, which was also patterned after Lord Campbell's Act. Negron v. Llarena, supra, 156 N.J. at 315 (citations omitted). The current version of New Jersey's Wrongful Death Act provides in part that a wrongful death action may be pursued "[w]hen the death of a person is caused by a wrongful act, neglect or default, such as would, if death had not ensued, have entitled the person injured to maintain an action for damages resulting from the injury, the person who would have been liable in damages for the injury if death had not ensued shall be liable." N.J.S.A. 2A:31-1. The Act further states that "[e]very action brought under this chapter shall be commenced within 2 years after the death of the decedent, and not thereafter." N.J.S.A. 2A:31-3.

New Jersey's Wrongful Death statute has spawned five decisions that bear on this case. The first is Knabe v. Hudson Bus Transp. Co., supra, 111 N.J.L. 333, relied upon by the Appellate Division. The others are Graf v. Taggert, 43 N.J. 303 (1964), Lawlor v. Cloverleaf Mem. Park, Inc., 56 N.J. 326 (1970), Alfone v. Sarno, 87 N.J. 99 (1981), aff'g and modifying 168 N.J. Super. 315 (App. Div. 1979), and Silverman v. Lathrop, 168 N.J. Super. 333 (App. Div. 1979). Those opinions represent first a gradation, and then a polarization, of various approaches.

A. Knabe

In Knabe, an injury befell the decedent on January 12, 1927, and he died on July 3, 1930. An action was commenced under the Death Act on June 29, 1932. The Court of Errors & Appeals accepted the reasoning in Coulter v. New Jersey Pulverizing Co., 11 N.J. Misc. 5 (Sup. Ct. 1932), and concluded that a "right of action" under the Wrongful Death Act did not vest when the decedent died. Knabe, supra, 111 N.J.L. at 334-35. The Court stated, "[w]e agree [with Coulter] that, where any right of action by the living party injured was barred by limitation before his death, the Death Act . . . does not create a right of action in the personal representative." Id. at 335. Knabe adopted Coulter's perception of the legislative intent underlying the Wrongful Death Act:

[If D]ecedent lingered for twenty years and made no move, his representative could then assert a right of action to recover for an injury forgotten by every one but the injured, who had slept on his rights for twenty years. Such could not have been the legislative intention. [Coulter, supra, 11 N.J. Misc. at 7.]

Based on that understanding, Knabe determined that the Act required a viable personal injury claim at the time of death in order for decedent's representative to maintain a wrongful death cause of action. Knabe did not, however, base that conclusion on the statutory language of the Wrongful Death Act, but, rather, relied solely ...


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