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Wendy Dellaquila and Michael Dellaquila v. Bendit Weinstock

May 8, 2012

WENDY DELLAQUILA AND MICHAEL DELLAQUILA, PLAINTIFFS-APPELLANTS,
v.
BENDIT WEINSTOCK, P.A., PETER I. BERGE, ESQUIRE AND ABBOTT S. BROWN, ESQUIRE, DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-5759-09.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued March 14, 2012

Before Judges Cuff, Lihotz and Waugh.

Plaintiffs, Wendy Dellaquila and Michael Dellaquila, appeal from a Law Division order awarding summary judgment in favor of defendants, Bendit Weinstock, P.A., and two of its licensed New Jersey attorneys, Peter I. Berge and Abbott S. Brown, who plaintiffs hired to provide legal representation in their pursuit of medical negligence claims. Plaintiffs' legal malpractice action alleged defendants, when they initiated the medical negligence complaint, failed to include all appropriate party defendants, resulting in the dismissal of said causes of action as barred by the statute of limitations. Defendants contend the statute of limitations had expired prior to plaintiffs' request for legal representation. The Law Division judge agreed. We affirm.

I.

The following facts are taken from the record submitted by the parties in support of their cross-motions for summary judgment, viewed in a light most favorable to plaintiffs. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995). Plaintiffs engaged defendants to pursue medical malpractice claims based on a missed cancer diagnosis. The facts surrounding that claim are as follows.

In 1997, in the course of providing treatment to Wendy for skin cancer removed from her scalp, Faith Nathan, M.D. and/or Linda Earle, M.D., two doctors affiliated with Thomas Jefferson University Hospital in Philadelphia, Pennsylvania (Jefferson physicians), reviewed radiological tests revealing a lump in Wendy's left breast. Wendy was advised the lump was benign and it was tagged for future review and monitoring. Wendy was last treated by the Jefferson physicians in November 1997, and thereafter, did not engage in follow-up treatment. In 2000, Wendy underwent a mammogram, CT scan, MRI, and chest x-ray at Our Lady of Lourdes Hospital in Camden (Lourdes).*fn1 The films were reviewed by Kathleen Greatrex, M.D., a radiologist, who told Wendy, she was "all clear." Wendy recognized this report was at odds with the 1997 information given by the Jefferson physicians. She retrieved a copy of her Jefferson films and asked Allen Pope, M.D., a pulmonologist at Lourdes, to review the 2000 radiographic tests, in light of the prior breast mass tagged in 1997 by the Jefferson physicians. Dr. Pope told plaintiff, "Dr. Greatrex said [the films] were all clear."

In January 8, 2004, a cancerous tumor found in Wendy's right eye was biopsied. The biopsy resulted in the loss of sight in Wendy's right eye. On March 17, 2004, a neuroendocrine cancerous tumor was discovered in Wendy's left lung. She underwent surgery at Lourdes to extract the tumor, resulting in the removal of her lung.

In February 2004, Dr. Pope performed a bronchoscopy, reviewed Wendy's recent chest x-rays and pulmonary scans. Finding a tumor, he told her he had been mistaken when reviewing her prior films. On July 2, 2004, Wendy was told by her then treating pulmonologist, Earl King, M.D., of Fox Chase Cancer Center, that Dr. Greatrex may have missed the breast tumor in 2000. Dr. King later stated the mass was visible on the 1997 films. In contrast, a subsequent treating physician opined the tumor was likely of thirty years duration and had potentially metastasized prior to her 1997 treatment by the Jefferson physicians.

On March 21, 2006, plaintiffs consulted with defendants regarding the pursuit of medical negligence claims. Defendant Berge called Wendy on March 24, 2006, and conducted a telephone interview regarding the nature of her claims. Wendy described her course of treatment by the Jefferson physicians who removed her skin cancer and tagged a breast mass; Dr. Greatrex and Dr. Pope's review of recent scans and tests, resulting in being informed the films were "all clear"; Dr. Pope's 2004 admission of error; and Dr. King's treatment. Defendants agreed to investigate Wendy's potential medical malpractice claims. File notes reflect Berge informed Wendy if a suit was filed it would be without first obtaining an affidavit of merit because of the statute of limitations and if an affidavit of merit could not be obtained within sixty days, the action would most likely be dismissed with prejudice.

In correspondence to Wendy dated May 20, 2006, Berge advised: "This will confirm that you understand that the statute of limitations may have already expired, and if it did not it may expire in July of 2006." Berge explained there was sufficient information to file an action, but insufficient evidence of causation to obtain an affidavit of merit. Berge reiterated that if an affidavit of merit was not secured, the action would be dismissed and any claims barred. He advised his position was "based on the assumption that a court would agree that the statute of limitations will expire in July of 2006." Further, Berge advised: "You should also know that we cannot predict what a court's decision would be regarding the statute of limitations[,]" noting the determination could be the limitations period had already expired and her right to litigate her claims may "have already been lost" when she consulted defendants. Wendy acknowledged receipt of the information by signing and returning a copy of the letter on May 20, 2006.

On May 27, 2006, Wendy executed a contingency fee agreement with defendants, who thereafter filed a professional negligence action against Lourdes, Dr. Greatrex, and various fictitiously named parties. The Jefferson physicians were not named as defendants. Further, defendants did not examine whether the Jefferson physicians were subject to suit in New Jersey and, if not, note they could not pursue plaintiffs' claims in Pennsylvania because defendants were not licensed to practice law in the Commonwealth.

On July 19, 2006, defendants' expert declined to file an affidavit of merit. Defendants informed plaintiffs no underlying facts supported causation, making it unethical to continue the medical malpractice action. Defendants advised that without securing an expert to opine regarding causation, defendants would seek to be relieved as counsel and plaintiffs would assume their own legal representation. On July 26, 2007, defendants were relieved ...


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