The opinion of the court was delivered by: Irenas, Senior District Judge
Plaintiff Daisy Love ("Plaintiff") brought the instant lawsuit alleging medical malpractice by Rancocas Hospital ("Hospital"), Steven Oxler, M.D. ("Dr. Oxler"), Beth Slimm, R.N. ("Slimm"), and Beth Benn, R.N. ("Benn"). Presently before the Court are the Motions to Dismiss by Benn and Slimm on the ground that the claim against them is barred by New Jersey's two year statute of limitations for medical malpractice actions. For the reasons set forth below, this Court grants the Motions to Dismiss.
At approximately 5:00 p.m. on March 10, 2000, Plaintiff was brought to the Hospital by ambulance after experiencing episodes of syncope (a temporary loss of consciousness, generally due to an insufficient flow of blood to the brain), falling, and poorly controlled high blood pressure.*fn1 She was treated at the Hospital by Dr. Oxler, Slimm, and Benn. Dr. Oxler was Plaintiff's treating physician on that day. Slimm cared for Plaintiff from approximately 5:00 p.m. until 6:20 p.m., and Benn cared for Plaintiff from approximately 6:20 p.m. until Plaintiff was discharged later that night.
While in the emergency department of the Hospital, Plaintiff's blood pressure was taken by a nurse upon her arrival, as well as at 5:38 p.m., 5:45 p.m., 6:00 p.m., and 6:15 p.m. Plaintiff's blood pressure was later monitored by machine, which issued blood pressure readings at 15 minute intervals from 7:00 p.m. to 8:15 p.m. There are no records of blood pressure readings between 6:15 p.m. and 7:00 p.m. By 8:15 p.m., Plaintiff's blood pressure had been brought down from 200/110 to 133/91.*fn2 Plaintiff was discharged at approximately 8:30 p.m., and given written discharge materials signed by Benn instructing Plaintiff to discontinue taking Atenolol, a medication for hypertension, to follow up with her primary care physician in three days and when getting out of bed, to sit on the side of the bed for five minutes before standing up. An ambulance was called to take Plaintiff home.
After she was discharged and while waiting for the ambulance at approximately 8:40 p.m., Plaintiff fell off of the bed on which she was sitting. Her blood pressure was taken twice at this time by Benn, with readings of 180/110 and 170/100. Neither Dr. Oxler, Benn nor Slimm examined Plaintiff between 8:45 p.m., when her blood pressure was last taken, and when she left the Hospital at approximately 10:40 p.m. Plaintiff was nevertheless allowed to leave the Hospital and was brought back to her home by ambulance.
At his deposition, Dr. Oxler acknowledged that the readings taken at 8:40 p.m. indicated that Plaintiff's blood pressure was elevated, and her blood pressure would not have been considered stable at that point. Dr. Oxler testified that if he had known Plaintiff's blood pressure was 180/110 at 8:40 p.m., he would not have allowed her to leave. Benn testified at her deposition, however, that she remembered telling Dr. Oxler about the two blood pressure readings taken after Plaintiff's fall. Benn stated that she informed the doctor about Plaintiff's blood pressure readings after the discharge order had been given but before Plaintiff left the Hospital.*fn3
On or about March 12, 2000, Plaintiff was taken back to the Hospital and admitted as an inpatient. She suffered from the same symptoms as she had on March 10, 2000, in addition to right-sided weakness, slurred speech and a facial droop. At that time it was determined that Plaintiff had suffered a stroke.
On March 16, 2000, Plaintiff was discharged from the Hospital and transferred to a comprehensive inpatient rehabilitation program, where she stayed until April 17, 2000. Plaintiff received home health care for approximately a month after her release from the rehabilitation program, but was unable to continue living alone as a result of her stroke. Plaintiff moved to Mobile, Alabama, in June, 2000, to live with her daughter. Despite continuing therapy, Plaintiff is unable to live independently and requires the assistance of others for tasks such as meal preparation, bathing and dressing. Her mobility is limited, as she cannot ascend or descend stairs independently and requires a wheelchair to ambulate any distance or for a prolonged period of time.
Plaintiff filed her original complaint on November 27, 2001, naming Rancocas Hospital, Steven Oxler, M.D., and John Doe, Mary Doe, ABC Partnerships and XYZ Corporations as Defendants.*fn4 Plaintiff alleges that her injuries are a direct result of the failure of the Defendants to care for and properly treat her. In compliance with N.J.S.A. 2A:53A-27, Plaintiff attached to her original complaint an Affidavit of Merit by Ira Mehlman, M.D., attesting that the treatment Plaintiff received at the Hospital fell below the appropriate standard of care.
On February 23, 2004, Plaintiff filed a motion for leave to file a Third Amended Complaint in order to join Benn and Slimm as Defendants in their individual capacities.*fn5 Magistrate Judge Anne Marie Donio concluded that the proposed claim against the two nurses did not relate back to the November 27, 2001, filing date through fictitious party pleading and Fed. R. Civ. P. 15(c), because Plaintiff conceded that the identity of the nurses was available at that time she filed her Complaint. Love v. Rancocas Hospital, No. 01-5456 (D.N.J. Apr. 14, 2004).
Magistrate Judge Donio granted Plaintiff's motion, however, concluding that "the Court cannot say with certainty that the amendment is futile on statute of limitations grounds, as . . . the discovery rule may very well apply." Id. at 11. The Court noted that the crucial issue was whether the alleged responsibility of Benn and Slimm was discoverable by Plaintiff prior to the depositions taken in 2003, and stated that "these statute of limitations issues may be brought by way of dispositive motion as a result of facts developed during discovery." Id. Plaintiff filed the Third Amended Complaint on April 27, 2004.*fn6
Under Fed. R. Civ. P. 56(c)*fn7 a court may grant summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." The non-moving party may not simply rest on its pleadings to oppose a summary judgment motion but must affirmatively come forward ...