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Tamberelli v. Simon

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


February 28, 2008

MICHELINA TAMBERELLI AND ANTHONY TAMBERELLI, HUSBAND AND WIFE, PLAINTIFFS-APPELLANTS,
v.
STANLEY SIMON, M.D. AND FEMALE CARE ASSOCIATES, P.A., DEFENDANTS-RESPONDENTS.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-6594-05.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued December 11, 2007

Before Judges Coburn, Fuentes and Chambers.

Plaintiff Michelina Tamberelli*fn1 appeals from the order of the Law Division dismissing her medical malpractice suit against defendant Dr. Stanley Simon, a specialist in the field of obstetrics and gynecology (OB/GYN). The matter came before the trial court by way of defendant's motion for summary judgment, arguing that plaintiff's claims were time-barred under the relevant statute of limitations. After reviewing the record developed before the motion judge, and in light of prevailing legal standards, we affirm.

On August 8, 2001, plaintiff consulted with Dr. Simon for the purpose of terminating her ability to become pregnant. From this discussion, Dr. Simon agreed to perform a tubal ligation. At a follow up visit on September 10, 2001, Dr. Simon informed plaintiff of the potential risks associated with this surgical procedure, and that the procedure was not one hundred percent effective.

On September 14, 2001, plaintiff underwent the tubal ligation surgery. She recovered normally and did not experience post-operative difficulties. In the latter part of 2002, plaintiff missed several menstrual cycles. On January 7, 2003, plaintiff visited Dr. Simon's office and discovered she was pregnant. During this visit, plaintiff contends that Dr. Simon informed her that she had a "normal intra-uterine pregnancy." Thus, according to plaintiff, Dr. Simon did not even mention the possibility that she had an ectopic pregnancy.

Three days later, plaintiff began to experience severe abdominal pain; she was taken to a hospital, and underwent emergency surgery stemming from a ruptured ectopic pregnancy and ovarian cyst. Dr. Isaac Victor, a partner of Dr. Simon, was the physician who performed that surgery. Plaintiff recovered normally and returned to work eight weeks later.

Plaintiff did not seek legal counsel after the surgery, because, based on these facts, she contends she did not suspect that Dr. Simon had deviated from medical standards. Plaintiff continued to see Dr. Simon as her OB/GYN physician until October 16, 2003.

On October 18, 2004 plaintiff visited her primary care physician, Dr. Gianella, and recounted what had happened to her. Dr. Gianella advised her to consult with an attorney. On February 28, 2005, plaintiff's counsel agreed to investigate allegations of malpractice. After conferring with a board certified OB/GYN physician, counsel filed a formal complaint on plaintiff's behalf on August 15, 2005.

With these facts as background, Judge Santiago held that the event that triggered the running of the two-year statute of limitations occurred on January 7, 2003. On this date, plaintiff became aware that, despite having undergone a specific surgical procedure to prevent pregnancy, she was in fact pregnant. The receipt of this information would alert a reasonable woman of the need to conduct an investigation to ascertain whether the tubal ligation was performed in a medically sound manner.

We agree. The statute of limitations begins to run when the "facts presented would alert a reasonable person exercising ordinary diligence that he or she was injured due to the fault of another." Szczuvelek v. Harborside Healthcare Woods Edge, 182 N.J. 275, 281 (2005) (quoting Martinez v. Cooper Hosp. Univ. Med. Ctr., 163 N.J. 45, 52 (2001). Here, plaintiff's complaint should have been filed on or before January 7, 2005. From January 7, 2003, plaintiff was aware that the tubal ligation had not prevented her from becoming pregnant. Although, like all surgeries, this procedure is not one hundred percent effective, the occurrence of the pregnancy was sufficiently inconsistent with the expressed intent of the surgery as to give rise to a duty to investigate. Because the complaint was not filed until August 14, 2005, her cause of action is barred as a matter of law. N.J.S.A. 2A:14-2.

Affirmed.


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