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Czepas v. Schenk

July 3, 2003

TADEUSZ CZEPAS AND DOROTA CZEPAS, PLAINTIFFS-APPELLANTS/ CROSS-RESPONDENTS,
v.
RICHARD S. SCHENK, M.D., JANET EINHORN, P.T., AND OVERLOOK HOSPITAL, DEFENDANTS-RESPONDENTS/ CROSS-APPELLANTS, AND JOSEPH D. ZUCKERMAN, M.D., DEFENDANT.



On appeal from the Superior Court of New Jersey, Law Division, Essex County, L-9355-99.

Before Judges Skillman, Lefelt and Winkelstein.

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

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 20, 2003

In September 1997 plaintiff Tadeusz Czepas was injured as he tried to jump into a rolling car which was about to strike his wife, plaintiff Dorota Czepas.*fn1 He was treated for his injuries by defendant medical providers. Believing he received inadequate medical care, in the spring of 1999 plaintiff contacted counsel who had an orthopedic specialist review plaintiff's medical records. Although the specialist suggested that one or more of the healthcare providers may have deviated from the standard of care, he was unable to specify any particular deviation or attribute responsibility to any particular provider.

To avoid the running of the statute of limitations, plaintiff filed suit against defendants in September 1999. However, because plaintiff's counsel had been unable to obtain Affidavits of Merit, he intentionally delayed issuing summonses and serving defendants with the complaint for approximately two years.

Defendants moved for dismissal of the complaint based on plaintiff's failure to comply with Rule 4:4-1, which requires issuance of the summons within ten days of the filing of the complaint. The motion judge dismissed plaintiff's complaint without prejudice. On appeal, plaintiff claims that because defendants suffered no prejudice by reason of the delay between the filing and service of the complaint, dismissal of his complaint was not warranted. In their cross-appeal, defendants claim the judge should have dismissed the complaint with prejudice.

We agree with the motion judge that plaintiff's counsel's intentional delay in serving the summonses and complaint in order to avoid application of the Affidavit of Merit statute warranted dismissal of plaintiff's complaint. Accordingly, we affirm.

Furthermore, because a dismissal without prejudice does not foreclose a statute of limitations defense, we affirm the Law Division's without prejudice dismissal of plaintiff's complaint.

I.

To understand the context in which plaintiff's complaint was dismissed, we examine the procedural and factual background in some detail. This is what happened.

After being injured on September 2, 1997, plaintiff was first taken to defendant Overlook Hospital but was transferred to Morristown Memorial Hospital several days later, where he was seen by defendant Richard S. Schenk, M.D., an orthopedist. Dr. Schenk diagnosed plaintiff with bilateral rib fractures, a right scapula fracture, and pulmonary and renal contusion. Plaintiff was discharged from the hospital on September 7, 1997.

Following his discharge, plaintiff continued to see Dr. Schenk. On September 24, 1997, plaintiff complained to Dr. Schenk of severe pain in his ribs and right shoulder; plaintiff was unable to lift his right arm. Dr. Schenk ordered an MRI to rule out a rotator cuff tear, and recommended physiotherapy. Upon receipt of the MRI results, Dr. Schenk determined that plaintiff had a"displaced fracture of his greater tuberosity" and a"posterior subluxation of his humeral head." Based on that diagnosis, Dr. Schenk scheduled surgery for plaintiff.*fn2

About a year-and-a-half later, plaintiff contacted counsel about what plaintiff believed was defendants' negligent medical treatment. In March 1999, plaintiff's attorney requested plaintiff's medical records from Dr. Schenk, and received them about a week later. Counsel sent the records to an orthopedist for review. The doctor confirmed that plaintiff had residual medical problems, and he intimated that one or more health care providers may have deviated from the standard of care; ...


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