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Wednesday Whelan and v. Dr. Antoine I. Sara


February 14, 2012


On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-4368-10.

Per curiam.


Argued January 24, 2012

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 warrant in July 2008, the police found the photographs of plaintiff on defendant's home computer.

On June 17, 2008, the same day Dr. Rothberg told plaintiff that defendant's conduct was "inappropriate" and "unprofessional," plaintiff filed a complaint with BME, alleging in her written complaint to BME that she "felt completely violated and taken advantage of" when defendant examined her breasts and took pictures of her naked body. After receiving a complaint from another female patient about defendant's conduct during a 2002 rectal examination, BME conducted a hearing on July 22, 2009 and questioned defendant under oath.

As the proceedings before that body are not germane to the issues before us on appeal, we will abbreviate our discussion accordingly. On March 11, 2010, the Board issued a consent order in which defendant agreed that he had violated applicable portions of the Administrative Code by failing to advise patients of their right to request a chaperone during rectal exams; failing to afford patients with privacy while disrobing and failing to provide them with gowns or other forms of draping; failing to maintain proper notes of patient examinations; neglecting to place photographs of the patient into the patient's medical record; and downloading photographs of a patient's unclothed body onto his personal home computer, thereby committing a "serious violation" of the confidentiality requirements applicable to physicians. For these violations, the Board issued a reprimand, required defendant to complete a record-keeping course, and imposed a civil penalty of $3000.

On May 20, 2010, plaintiff and her husband filed the Law Division complaint that is the subject of this appeal. Plaintiff asserted claims of professional negligence, medical malpractice, invasion of privacy, and assault and battery. Specifically, in count one, plaintiff alleged that defendant deviated from accepted standards of medical care by "conducting a breast exam and other inappropriate touching, participating in undressing the plaintiff, taking digital photos of plaintiff's vagina and her naked body," "failing to provide her with notice of her right to have a chaperone present," "failing to provide plaintiff with sufficient privacy when disrobing," and "misappropriat[ing] [the] photos for his private use by downloading the [images] on his private computer."

In count two, plaintiff alleged that defendant "failed to obtain [her] informed consent" by neglecting to advise her of her right to have a chaperone present during the rectal examination, "failing to advise [her] of her right to privacy when disrobing and right to use a gown" and "[failing to] advis[e] plaintiff the photos he was taking were not necessary for diagnosis or treatment and would be downloaded for his personal or professional use onto his personal home computer."

In count three, plaintiff alleged that defendant "invade[d] plaintiff's privacy" by "violating her person" and "misappropriat[ing] her likeness for his private purposes." In the fourth count, plaintiff alleged that defendant "invade[d] [her] body without colorable consent or authorization" when he "pull[ed] down [her] panties without her consent, lift[ed] up her shirt, unhook[ed] her bra, and [took] . . . multiple digital photos of plaintiff's body including her vagina." In the fifth count, plaintiff demanded punitive damages, and in the sixth count, plaintiff Sean Whelan asserted damages based upon a loss of consortium.

During her deposition, plaintiff acknowledged that she believed while in defendant's office both that defendant's conduct was "inappropriate" and that "he was a creepy guy." She stated:

I was in pain. I was uncomfortable. I wanted to leave his office. . . I felt that he was a creepy guy. I didn't like the way he was interacting with me and it made me feel uncomfortable. . . . [T]he way he touched my breasts was inappropriate. . . . I knew I was uncomfortable with the breast exam that he gave me 'cause it was not similar to other breast exams that I ha[ve] had.

When asked why she waited until her consultation with Dr. Rothberg to report defendant to the Bloomfield police and to the BME, she responded:

I did not know it was wrong when I was at Dr. Sara's office. I did not know what to expect from his exam. I knew I felt uncomfortable, but I did not know it was wrong. Dr. Rothberg told me, he was -- he is the same kind of doctor as Dr. Sara, so I took his word when he told me that it was wrong. Then I knew that it was wrong.

Two weeks after taking plaintiff's deposition, defendant moved for summary judgment, contending plaintiff's claims were time-barred by the two-year statute of limitations because she filed her complaint nineteen days beyond the two-year anniversary of her May 1, 2008 examination by defendant. During oral argument on defendant's motion, the judge suggested that a Lopez*fn2 hearing be conducted to determine when plaintiff knew, or should have known, that she had a cause of action against defendant. Both parties agreed that a Lopez hearing was unnecessary, and proceeded to argue their respective positions.

Defendant argued that plaintiff was aware the very day she left defendant's office on May 1, 2008, that defendant had "violated" her and exceeded the legitimate boundaries of a rectal examination. Defendant also argued that plaintiff was so disturbed by defendant's conduct during the rectal examination that she reported it to her husband as soon as she left defendant's office, and discussed it with her sister and a lawyer at her office the next day. Although defendant denied any wrongdoing, he asserted that plaintiff was aware on May 1, 2008 that she had a cause of action, and there was no justification for her failure to file her complaint within the applicable two-year statute of limitations. In support of that contention, defendant pointed to a portion of plaintiff's June 18, 2008 statement to the Bloomfield police, in which she remarked:

I knew it wasn't right from the time he was pulling down my pants. Every doctor that I have ever been to leaves the room when I get undressed. Also, when he asked me to lift my shirt and unbutton my bra, I felt that wasn't right. I was having a rectal problem and I didn't understand why he had to do a breast exam.

For her part, plaintiff urged the judge to deny defendant's motion. She argued that she was not aware until she saw Dr. Rothberg on June 17, 2008, that the applicable regulations required defendant to provide her with a chaperone and with privacy while disrobing. Plaintiff asserted that had a chaperone been provided, she would have been spared the groping and other indignities committed by defendant; and because her visit with Rothberg did not occur until June 17, 2008, her May 20, 2010 complaint was timely filed.

On June 7, 2011, the judge issued a written opinion granting defendant's motion for summary judgment. The judge found plaintiff's complaint was time-barred, having been filed nineteen days beyond the applicable two-year statute of limitations. Specifically, the judge concluded that the Lopez v. Swyer discovery rule did not excuse the untimely filing of plaintiff's complaint because "plaintiff knew at the very moment of [defendant's] examination that it was 'inappropriate' and 'wasn't right,' [and] was upset by the experience and knew it was 'not good.'"

Pointing to plaintiff's own remarks to her husband, her sister, a lawyer at plaintiff's office, the Bloomfield police and the BME, the judge found that plaintiff was aware as soon as she left defendant's office on May 1, 2008, that what he had done was wrong and that she had been "violated." As a result, the judge held plaintiff's May 20, 2010 filing to be barred by the statute of limitations, as there was no dispute about the fact that she was aware on May 1, 2008 that she had a cause of action against defendant.

In making that ruling, the judge expressly rejected plaintiff's assertion that, at a minimum, the informed consent allegations contained in count two, which were based on defendant's failure to advise plaintiff of her right to have a chaperone present during a rectal examination, should survive the dismissal of the other counts. The judge held that "[f]or the statute of limitations to run, the injured party need not know a specific cause of action or an articulable basis in the law for damages," so long as the plaintiff has knowledge of the facts that "'may equate in the law with a cause of action.'" (Citation omitted).

In contrast, the judge did not separately determine whether the cause of action in count three, including the downloading of the photographs onto defendant's home computer, was barred by the statute of limitations. The judge did not address plaintiff's assertion that not until the police executed the search warrant in July 2008 did she learn that defendant had transferred the photographs to his home computer. Concluding that all counts asserted in plaintiff's complaint were barred by the statute of limitations, the judge signed a confirming order on June 7, 2011 granting summary judgment to defendant and dismissing plaintiff's complaint in its entirety.

On appeal, plaintiff contends the judge committed reversible error by: 1) improperly confining his analysis of the Lopez v. Swyer discovery rule to only one of the four Lopez factors; and 2) incorrectly rejecting her equitable tolling argument.


The statute of limitations sets forth the period of time within which a party must initiate a lawsuit. Szczuvelek v. Harborside Healthcare Woods Edge, 182 N.J. 275, 281 (2005). A medical malpractice action, or a lawsuit seeking damages for personal injury caused by the wrongful act of another, must be filed within two years of the date the alleged negligence or wrongful act occurred. N.J.S.A. 2A:14-2; Szczuvelek, supra, 182 N.J. at 281.

"To avoid the harsh effects of a mechanical application of [the] statute of limitations," the Court has adopted the discovery rule, which provides that, in appropriate cases, "'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.'" Szczuvelek, supra, 182 N.J. at 281 (alteration in original) (quoting Lopez, supra, 62 N.J. at 272). The discovery rule serves to suspend the statute of limitations "'when the plaintiff is unaware of his or her injuries or of the culpability of another.'" Dunn v. Borough of Mountainside, 301 N.J. Super. 262, 274 (App. Div. 1997) (citation omitted), certif. denied, 153 N.J. 402 (1998). The discovery rule is essentially a rule of equity. Lopez, supra, 62 N.J. at 273.

When conducting a Lopez analysis, a court must consider: the nature of the alleged injury; the length of time that has elapsed since the wrongdoing; whether the delay was deliberate; whether the defendant has been prejudiced by the delay; and the information available to the claimant. Id. at 276.

The Lopez discovery rule will not excuse every late filing of a complaint. If "the facts presented would alert a reasonable person exercising ordinary diligence that he or she was injured due to the fault of another[,]" the discovery rule will not excuse a late filing. Martinez v. Cooper Hosp., 163 N.J. 45, 52 (2000). In determining when the statute of limitations starts to run, the court must apply an "objective" standard, "whether plaintiff 'knew or should have known' of sufficient facts to start the statute of limitations running." Szczuvelek, supra, 182 N.J. at 281 (quoting Martinez, supra, 163 N.J. at 52). As the Court observed in Baird v. American Medical Optics, 155 N.J. 54, 66 (1998):

Critical to the running of the statute is the injured party's awareness of the injury and the fault of another. The discovery rule prevents the statute of limitations from running when injured parties reasonably are unaware that they have been injured, or, although aware of an injury, do not know that the injury is attributable to the fault of another. [(Citations omitted).]

When conducting that analysis, "plaintiffs are divided into two classes: those who do not know that they have been injured and those who know they have suffered an injury but do not know that it is attributable to the fault of another." Martinez, supra, 163 N.J. at 53. "A cause of action does not accrue until both of those factors exist." Ibid. As the Court observed in Martinez, there are many instances where "knowledge of fault is acquired simultaneously with knowledge of injury," such as when "the wrong tooth is extracted during surgery." Ibid. In other cases, a plaintiff may be aware of an injury, as where a plaintiff suffers severe pain and nausea after undergoing radiation therapy, but does not learn until much later that the pain and nausea were the result of the physician negligently exposing the patient to too much radiation. Ibid.

In circumstances where a plaintiff knows that she has been injured, and knows that the injury was the fault of another, she cannot take refuge in the Lopez discovery rule. Ibid. Notably, knowledge of a specific basis for legal liability or a provable cause of action is not required so long as the plaintiff is aware of the injury and knows who was responsible for causing it. Id. at 52. It is only in those circumstances where a plaintiff is unaware of the injury, or is unaware of the culpability of another, that the Lopez discovery rule will apply. Ibid.

Applying these principles, we are satisfied that the judge correctly concluded that the Lopez discovery rule did not apply. The undisputed evidence in the record establishes that as soon as plaintiff left defendant's office on May 1, 2008, she knew that defendant's actions were "wrong." Her failure to institute suit within the time established by the statute of limitations was not due to a belated discovery of the alleged wrong. As plaintiff told the Bloomfield police, she was aware "right from the time he was pulling down [her] pants," that "it wasn't right." She also told the police that when defendant asked her to unhook her bra, she "felt that wasn't right" either. She stated to the police that she "was having a rectal problem" and "didn't understand why [defendant] had to do a breast exam." Indeed, she told BME that "[d]uring" her examination by defendant, she "felt very uncomfortable and violated."

As is evident from her statements to the police and BME, plaintiff was aware on May 1, 2008 that she was injured "due to the fault of another." Martinez, supra, 163 N.J. at 52. For that reason, the discovery rule is inapplicable. Plaintiff had actual knowledge of her injury and was able to identify its cause on the date of her May 1, 2008 examination. Indeed, her complaints to her husband, to her sister and a lawyer at the law firm where she worked all demonstrate that she was well aware on May 1, 2008 that defendant had exceeded the bounds of a normal rectal examination and that he had groped her and invaded her privacy by undressing her, photographing her naked body and examining her breasts. There was nothing complicated or exotic about the wrongful conduct of defendant. It is clear that on May 1, 2008, the facts known to plaintiff were sufficient to start the statute of limitations running. Because plaintiff knew that she had been injured, and knew the identity of the responsible party, the trial judge correctly held that the discovery rule did not excuse violation of the two-year statute of limitations.

We reject plaintiff's contention that not until her office visit with Dr. Rothberg on June 17, 2008 was she aware that she had the right to a chaperone. As the Court observed in Martinez, supra, 163 N.J. at 52, a plaintiff's knowledge of her "specific basis for legal liability" is not required so long as she knows she has been wronged and knows the identity of the tortfeasor. Those requirements were satisfied here.


We turn to plaintiff's claim that the judge erred by rejecting her equitable tolling argument. This argument lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(A) and (E). As the trial judge correctly found, equitable tolling is unavailable where, as here, there was no evidence suggesting that plaintiff was "induced or tricked by [her] adversary's misconduct into allowing the filing deadline to pass." Dunn, supra, 301 N.J. Super. at 280.

We affirm the dismissal of counts one, two and four.


We reach a different result concerning count three. As we have noted, plaintiff did not learn that defendant had downloaded the photographs of her naked body onto his home computer until after the Bloomfield police executed the search warrant in mid-July 2008. Plaintiff would have had no reason to suspect that defendant had done so. Under such circumstances, the discovery rule potentially applies to count three. We reverse the dismissal of count three and remand for consideration of whether the allegations in count three are subject to the Lopez discovery rule, thereby surviving defendant's statute of limitations claim. On remand, if the judge concludes that count three must be dismissed, he or she*fn3 shall dismiss counts five and six as well, thereby dismissing the entire complaint. If, in the contrast, the judge denies defendant's statute of limitations motion on count three, then the judge shall enter whatever orders are necessary to limit the scope of the punitive damages and loss of consortium claims on counts five and six to only those allegations contained in count three.

Affirmed in part; reversed and remanded in part. Jurisdiction is not retained.

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