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Szczuvelek v. Harborside Healthcare Woods Edge

January 24, 2005

STEPHEN SZCZUVELEK, GENERAL ADMINISTRATOR OF THE ESTATE OF EUGENE BURNS, PLAINTIFF-APPELLANT,
v.
HARBORSIDE HEALTHCARE WOODS EDGE, T/A HARBORSIDE NURSING HOME AND SOMERSET MEDICAL CENTER, A DULY INCORPORATED PRIVATE HOSPITAL FACILITY, DEFENDANTS-RESPONDENTS, AND BARRY FREEMAN, M.D., JOHN DOE, FICTITIOUS NAME AND ROBERT ROE, FICTITIOUS NAME, DEFENDANTS.



On certification to the Superior Court, Appellate Division.

SYLLABUS BY THE COURT

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

The issue in this appeal concerns the timeliness of the filing of Stephen Szczuvelek's complaint against Harborside Healthcare Woods Edge t/a Harborside Nursing Home (Harborside) and Somerset Medical Center (Somerset).

In February 1999, Eugene Burns was admitted to Robert Wood Johnson Hospital (RWJH) in New Brunswick for treatment of an ascending aortic aneurysm. During surgery, a tracheotomy tube was inserted into Burns' throat. He was unable to speak and communicated by writing on a note pad. After two months of treatment at RWJH, Burns was transferred on April 13, 1999 to Harborside for rehabilitation. The medical order issued by RWJH directed that Burns' trachea-bronchial secretions be suctioned every four hours. Harborside issued its own order on April 14, 1999, requiring healthcare personnel to suction once per shift, three shifts per day and as needed.

Stephen Szczuvelek, a close friend of Burns, visited him at Harborside on April 15, 1999. During this visit, Burns wrote Szczuvelek a note stating, "Steve, you have to get me out of here. They're going to kill me. They left me in my own waste for three hours. They won't suction me. Please get me out of here. And I need to be suctioned now." Szczuvelek tried to get a nurse to help. Eventually, he found a nurse who took him to a conference room to speak to a social worker. After Szczuvelek gave Burns' note to the nurse and the social worker, he was assured that someone would help Burns. When he returned to Burns' room, Szczuvelek asked the nurse to suction Burns. She responded that she had just done it but Burns shook his head that she had not. Szczuvelek confronted the nurse who responded that it was the doctor's orders that Burns not be suctioned. After continued prodding from Szczuvelek to suction Burns, the nurse left the room. Szczuvelek left Harborside that evening concerned for Burns' health and determined to find an alternative placement for him.

The following day, Burns was rushed to Somerset because he was unresponsive. Szczuvelek visited Burns in the emergency room, saw his poor condition and observed that Burns seemed terrified, lapsing in and out of consciousness. On April 17, 1999, Burns suffered a heart attack brought on by respiratory complications and died a short while later. Burns was buried on April 20, 1999.

About three weeks after the funeral, Szczuvelek consulted with David Alperts, Esq. because he suspected that something had gone wrong with Burns' medical treatment. Alperts told Szczuvelek to obtain Burns' medical records from Harborside and Somerset, which he did. The records showed that the medical care Burns received at Harborside contributed to his death. Approximately three months later, Szczuvelek contacted a State agency to file a complaint against Harborside and urged an investigation into the events of April 15, 1999. The status of that complaint and investigation is unknown.

On August 31, 2000, Szczuvelek consulted another attorney, Larry Leifer, Esq., and filed suit against Harborside and Somerset on April 26, 2001, two years and nine days after Burns' death. The complaint, filed pursuant to the Survivor Act, N.J.S.A. 2A:15-3, alleged medical malpractice. On June 24, 2001, Szczuvelek received a report from Dr. Warren Widmann, a medical expert, who concluded that Burns had lapsed into a coma and died as a result of inadequate medical care by Harborside and Somerset.

Szczuvelek filed an amended complaint on July 9, 2002, alleging a cause of action pursuant to the New Jersey Nursing Home Responsibilities and Rights of Residence Act, N.J.S.A. 30:13-5(J), and the Nursing Home Reform Act, 42 U.S.C. 483.25 et seq., including provisions contained in 42 C.F.R. 488.410 and 42 C.F.R. 488.301.

Harborside and Somerset each moved for summary judgment dismissing the complaint, contending that the complaint was filed beyond the two-year statute of limitations period. In response, Szczuvelek argued that his complaint was timely because it was not until three weeks after Burns' funeral on April 20, 1999 that he contacted an attorney and thereafter became aware or should have become aware of Harborside's negligence, and even later for Somerset. The trial court granted both Harborside's and Somerset's motion. The trial court concluded that, based on Burns' April 15th note and Szczuvelek's observations that same day, along with the cause of Burns' death (respiratory complications), Szczuvelek knew or should have known that Harborside's actions or lack thereof were actionable at that time. The court's letter opinion of October 4, 2003 directly addressed only the circumstances involving Harborside.

The Appellate Division affirmed the decision of the trial court substantially for the reasons expressed in the trial court's opinion.

The Supreme Court granted certification.

HELD: The Court being equally divided on the issue of the timeliness of the filing of the complaint against Harborside, the judgment of the Appellate Division is affirmed in respect of Harborside. The Court unanimously finds that the trial court erred in entering judgment dismissing the complaint against Somerset and remands the matter to the trial court for further consideration.

1. In a medical malpractice action, a complaint must be filed within two years of the accrual date, which is generally the date of the negligent act or omission. To avoid the harsh effects of a mechanical application of that rule, the Court adopted the discovery rule, which provides that in an appropriate case, a cause of action will be held not to accrue until the injured party discovers, or by an exercise of reasonable diligence and intelligence should have discovered, that he or she may have a basis for an actionable claim. The standard is generally whether the claimant knew or should have known of sufficient facts to start the running of the statute of limitations. (Pp. 7-8)

2. Unlike the claim against Harborside, the trial court failed to discuss the application of the discovery rule to Somerset and to determine when Szczuvelek should have reasonably known of facts supporting a cause of action against Somerset that would have started the running of the statute of limitations. Because the record is incomplete, a remand is necessary for the trial court to determine the application of the discovery rule as to Somerset and when the cause of action arose against Somerset. However, the members of the Court being equally divided on the issue of the timeliness of the filing of the complaint against Harborside, the judgment of the Appellate Division dismissing the complaint against Harborside is unanimously affirmed. (Pp. 8-10)

Judgment of the Appellate Division is AFFIRMED IN PART and REVERSED IN PART and the matter is REMANDED to the trial court for further proceedings on the complaint against Somerset only.

CHIEF JUSTICE PORITZ and JUSTICES WALLACE AND RIVERA-SOTO, concurring, would affirm the judgment of the Appellate Division granting summary judgment in favor of Harborside based on their concurrence with the trial court's conclusion that Szczuvelek exceeded the statute of limitations time period for filing his complaint against Harborside. Szczuvelek provided no adequate basis for the application of the discovery rule. At the time of Burns' death, Szczuvelek knew or should have known of sufficient facts to alert a reasonable person exercising ordinary diligence that Harborside's conduct may have caused or contributed to Burns' death.

JUSTICE ZAZZALI, concurring in part and dissenting in part, in which JUSTICES LONG and ALBIN join, agrees with the remand as to Somerset but dissents from the conclusion that Szczuvelek exceeded the statute of limitations as to Harborside. Justice Zazzali considers this a complex medical causation case, requiring the application of the discovery rule. Burns suffered from many complications in the two months after his aneurysm and his cause of death is so unclear that the medical experts did not agree on the same cause of death. According to the defense expert, the obvious cause of death was septic shock, while Szczuvelek's expert found that the failure to suction contributed to Burns' death. Szczuvelek satisfied the statute of limitations period because he filed his complaint within two years of obtaining some reasonable medical support demonstrating a causal connection between Burns' death and Harborside's care. Justice Zazzali would not require Szczuvelek to differentiate between a case of medical malpractice and one of unavoidable death without the benefit of some reasonable medical support. Accordingly, Justice Zazzali would hold that the statute of limitations began to run when Szczuvelek obtained Burns' medical records.

CHIEF JUSTICE PORITZ and JUSTICES WALLACE and RIVERA-SOTO join in the PER CURIAM opinion in its entirety. JUSTICES LONG, ZAZZALI and ALBIN join only in that part of the opinion relating to the issue of the timeliness of the complaint against Somerset. CHIEF JUSTICE PORITZ and JUSTICES WALLACE and RIVERA-SOTO also filed a separate concurring opinion. JUSTICE ZAZZALI filed a separate opinion concurring in part and dissenting in part, in which JUSTICES LONG and ALBIN join. JUSTICE LaVECCHIA did not participate.

Per curiam.

Argued September 13, 2004

The members of the Court being equally divided on the issue of the timeliness of the filing of plaintiff's complaint against Harborside Healthcare Woods Edge t/a Harborside Nursing Home (Harborside), the judgment of the Appellate Division is affirmed in respect of that defendant.

The Court is unanimous that it was error to enter judgment dismissing the complaint against Somerset Medical Center (Somerset) and remands the matter to the trial court for further consideration.

I.

The facts are these. In February 1999, Eugene Burns was admitted to the Robert Wood Johnson Hospital in New Brunswick for treatment of an aneurysm. During a surgical procedure, a tracheotomy tube was inserted into Burns' throat. Thereafter, he was unable to speak, but he could communicate by writing on a pad. Burns was treated at Robert Wood Johnson for approximately two months following his operation. On April 13, 1999, he was transferred to Harborside for rehabilitation. The medical order issued by Robert Wood Johnson directed that Burns should be suctioned*fn1 every four hours. Harborside issued its own order on April 14, 1999, requiring healthcare personnel to "suction Q shift and PRN." (Q means once per shift three shifts per day, and PRN means as needed).

Stephen Szczuvelek (plaintiff), a close friend of Burns, visited him at Harborside on April 15, 1999. During plaintiff's visit, Burns wrote him a note stating, "Steve, you have to get me out of here. They're going to kill me. They left me in my own waste for three hours. They won't suction me. Please get me out of here. And I need to be suctioned now."

Plaintiff pressed the nurse's call button to obtain help for Burns, but he did not receive a response. After waiting an hour, plaintiff left Burns' room to seek help. He found a nurse, who took plaintiff to a conference room to speak with a social worker. After plaintiff gave Burns' note to the nurse and the social worker, they assured him that someone would assist Burns.

Upon his return to Burns' room, plaintiff asked the nurse on duty if she would suction Burns. The nurse responded, "I just did." Burns then shook his head indicating that the nurse had not suctioned him. Plaintiff confronted the nurse, "Ma'am, I've been here almost two hours and you haven't stepped foot in this room." She responded, "it's the doctor's orders, he's not to be suctioned." Upon further prodding from plaintiff to suction Burns the nurse said, "I don't have to take this crap," and left the room. Plaintiff departed Harborside that evening concerned for Burns' health and determined to find an alternative placement for him.

The following day, April 16, 1999, Burns was rushed to Somerset because he was unresponsive. Plaintiff visited Burns in the Somerset emergency room. He observed Burns' poor medical condition and believed that Burns was dying. Burns seemed terrified and lapsed in and out of consciousness. A doctor told plaintiff that Burns would not survive an operation and that the hospital would make Burns "as comfortable as possible."

While he was in the emergency room, a nurse informed plaintiff that Harborside had not suctioned Burns because there was a fire drill the prior evening. Later, the social worker at Harborside denied that any fire drill had occurred.

At some point a Somerset doctor asked plaintiff why Burns was not transferred to Robert Wood Johnson. Plaintiff indicated to the doctor that he had not participated in the decision to transfer Burns to Somerset. Apparently, the doctor was concerned because Burns had previously been treated at Robert Wood Johnson and his medical records were there.

On April 17, 1999, Burns suffered a heart attack brought on by respiratory complications and died a short while later. ...


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