On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, L-8325-99.
Before Judges Pressler, Wefing and Lesemann.
The opinion of the court was delivered by: Pressler, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Plaintiff Denise Gilles appeals from a summary judgment dismissing her legal malpractice complaint against defendants, the law firm of Wiley, Malehorn & Sirota, and its partner, Arthur L. Raynes, who had represented her. The gravamen of her complaint is that Raynes, voluntarily and without good cause attributable to her, terminated the representation without adequately protecting her against the running of the statute of limitations, thus causing her to lose her medical malpractice cause of action. We are satisfied that plaintiff made a sufficient showing of a prima facie case in resisting the motion to compel its denial.
Much of the critical factual background is not in dispute. Plaintiff's asserted medical malpractice cause had its genesis in a colonoscopy she underwent on February 26, 1996, to determine the cause of occult bleeding. Several polyps were found and removed and she was discharged the same day. She continued, however, to have bleeding, and a second colonoscopy was performed on February 28, 1996, which disclosed an ulcerated area as the source of the bleeding and which was treated. The gravamen of the asserted medical malpractice was that the physician who performed the second colonoscopy perforated her colon, requiring her to undergo an emergency surgical repair that day. During her week- long hospital stay following the surgery, she developed a right hydropneumothorax that retarded her recovery. She apparently did, however, fully recover.
Persuaded by advice she had received from a physician family member that the perforation resulting in the emergency surgery was caused by malpractice, she consulted Raynes in early April 1996. While the record does not indicate whether a retainer agreement was entered into at that time, Raynes candidly conceded at his deposition that a representation had been entered into and that he was her lawyer. Plaintiff, as she made clear in her deposition, certainly understood that he was representing her and was relying on him to take whatever steps were necessary to protect and advance her interests.
The record does not indicate exactly how much communication plaintiff and Raynes had with each other in the ensuing months. This much at least is clear. At Raynes's instruction, plaintiff obtained and delivered to him the relevant medical records. Raynes explained to her that before suit could be commenced, he would need a report from a medical expert opining that she had been the victim of malpractice. Accordingly, he sought an opinion from a forensic gastroenterologist, Dr. Andrew Lo of Beth Israel Medical Center in New York, who reported to him that he believed there had not been malpractice. By letter dated March 24, 1997, Raynes advised plaintiff of Dr. Lo's opinion but added that:
Let me make clear that the above opinions on your care are those of Dr. Lo, and not of this office. We are willing to pursue your case further. However, in order to make this case viable, we will need to find an expert witness who can testify authoritatively that the care you received did not meet acceptable medical standards. If we do proceed with your case, we will need to lay out additional monies to potential witnesses in order to find one who agrees that you have received substandard treatment. This means that you will incur several hundred more dollars of expenses.
The letter concluded with Raynes's request that plaintiff telephone him to "discuss this further and decide whether you want us to continue to search for an independent expert." Plaintiff communicated her desire to proceed and agreed to pay the expenses involved.
A little over three months later, Raynes received a report dated July 3, 1997, from Dr. Lawrence B. Stein, a board-certified gastroenterologist, who opined that the second colonoscopy had been incorrectly performed in that a hot biopsy forceps had been used, that instrument having the highest risk of the complication of perforation and not recommended by the medical literature to control bleeding. He referred to other available instruments, including a heater probe and bicap electrode, concluding that use of the hot biopsy forceps "greatly increased the likelihood of creating a colonic perforation and is a deviation from acceptable medical practice." Raynes mailed a copy of Dr. Stein's report to plaintiff on July 18, 1997, under cover of letter simply referring to it and making no further comment thereon.
On October 20, 1997, Raynes wrote to plaintiff again complaining that she had not yet paid the $1,204 she had been billed to cover expenses. The letter noted that the last payment he had received from her was the previous May. He then went on to say that:
I understand that you want us to continue representing you in this matter; if that has changed, please advise us accordingly. In any event, you must reimburse us for the monies we have disbursed in working on your case thus far, as well as any expenses which may result from future work on your case. We cannot continue as your attorneys unless you fulfill that responsibility.
I would ask that you pay us in full by no later than October 31, 1997. If we do not receive payment from you by that time, we may reconsider our ...