On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-4368-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Baxter and Nugent.
Plaintiff Wednesday Whelan and her husband Sean Whelan, who sued per quod, appeal from a June 7, 2011 Law Division order that dismissed their medical malpractice complaint against defendant Antoine I. Sara, M.D., a proctologist, based upon a finding that their May 20, 2010 complaint was filed beyond the applicable two-year statute of limitations.*fn1 In the first, second and fourth counts of the complaint, plaintiff alleged that defendant committed intentional torts when he touched parts of her body that were not within the scope of a rectal examination, photographed her rectal and vaginal areas, pulled down her pants and underpants, and failed to advise her that she had the right to the presence of a chaperone during the rectal examination. We agree with the judge's determination that counts one, two and four are barred by the statute of limitations, as plaintiff recognized on May 1, 2008 when she underwent the rectal exam, that defendant's conduct was wrongful. Consequently, the statute of limitations began to run that day.
We reach a different result on count three, which alleges a cause of action for breach of plaintiff's privacy rights based on defendant downloading onto his home computer the photographs he took of plaintiff's naked body. As to count three, we conclude the motion judge erred by not conducting a separate analysis of the accrual date for count three in light of plaintiff's assertion that not until July 2008 did she learn that defendant had downloaded the photographs onto his home computer. We reverse the dismissal of count three and remand for reconsideration.
As to count five, the punitive damages claim, and count six, the per quod claim asserted by plaintiff Sean Whelan, the disposition of those counts shall abide the remand determination pertaining to count three.
On May 1, 2008, plaintiff visited defendant's Bloomfield office because she had been experiencing rectal pain. In the examination room, defendant took a history and inquired as to the reason for her visit. He then instructed plaintiff to lie on the examination table and unbutton her pants. After she did so, defendant "pulled [her] pants down to [her] knees" and then did the same with her underpants. Next, he directed plaintiff to lift up her shirt and unhook her bra. When she asked him why that was necessary, defendant responded that he needed to examine her "whole body." After plaintiff unhooked her bra, defendant "used both of his hands and grabbed [her] breasts" and "went from [her] breasts down [her] stomach all the way down to right above [her] vagina." According to plaintiff, defendant "was pushing as he was going."
After conducting a digital examination of plaintiff's rectum, defendant left the room and returned with a camera. According to plaintiff, before she "could say anything, he snapped a picture of [her] from behind." He then proceeded to take additional pictures of her unclothed body, and in "at least two of them he used his hands to spread [her] cheeks to where he could see [her] vagina." At the conclusion of the examination, defendant informed plaintiff that she should schedule another office visit. At that point, plaintiff "was not paying too much attention to what he was saying . . . because [she] knew [she] was never coming back."
Upon leaving defendant's office, plaintiff immediately called her husband and told him that her experience with Dr. Sara was "not good," and that she wanted to discuss it with him when she got home. When plaintiff returned home and told her husband what had happened, he told her "it didn't sound right to him and maybe [she] should talk to someone else . . . [and] report it." Plaintiff's husband told her "she got molested" and that she should "call the police."
The next day, May 2, 2008, plaintiff described her experience to her sister, with whom plaintiff worked at a local law firm. After listening to plaintiff's account, plaintiff's sister said "it didn't sound right[.]" Her sister recommended that plaintiff discuss the matter with one of the attorneys in the firm. The attorney advised plaintiff to report defendant to the Board of Medical Examiners (BME or Board).
On June 17, 2008, plaintiff saw Robert Rothberg, M.D., a proctologist in Montclair, to whom she had been referred by a friend. During the visit, plaintiff told Dr. Rothberg what defendant had done during the rectal exam on May 1, 2008. According to plaintiff, Dr. Rothberg told her that defendant's conduct was "completely inappropriate" and urged her to report it to BME. Dr. Rothberg also told her:
[t]hat [defendant] should have never touched [her] breasts at all, . . . that [she] could have had a chaperone present in the room with [her], that he should have not taken any pictures of [her], that he should not have assisted with taking [her] clothing down. . . . and that [she] needed to report it to the Medical Board.
After leaving Dr. Rothberg's office, plaintiff contacted the Bloomfield police department to file a complaint. After she provided the police with a sworn statement, the police sought, and received, a search warrant authorizing a search of defendant's office and home and the seizure of the photographs plaintiff had described. Upon executing the search ...