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Wendy Dellaquila and Michael Dellaquila v. Bendit Weinstock


May 8, 2012


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

Per curiam.


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.


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 as plaintiffs' counsel by plaintiffs' consent. Ultimately, the court ordered a summary dismissal of the complaint.

On November 12, 2009, plaintiffs filed a one count complaint alleging defendants committed legal malpractice by failing to include the Jefferson physicians in the underlying medical negligence action. On cross-motions for summary judgment, defendants asserted the statute of limitations with respect to any claims against the Jefferson physicians had expired prior to plaintiffs' initial legal consultation.

After initial review, the judge continued the motion to allow additional discovery, including the limited depositions of Wendy and Dr. King. In her deposition, Wendy discussed her prior medical treatment. Wendy was asked, "Going back to the year 2000[,] when you were at Lourdes, when Dr. Greatrex said to you after reviewing your scans that you were clear, did you understand that to mean that you were cancer free?" She responded, "I didn't believe it." Further in response to the question, "What did you understand the meaning of the scans are clear to be[,]" Wendy said, "that they were wrong." Wendy clarified this point, stating:

When [Dr. Greatrex] told me that the film was clear, I questioned it because at the same time a mammogram was done and they told me that [it] was clear. I knew that was impossible. I had a biopsy sometime '97, '98, and they tagged a lump in my breast and they told me that there was no tag. They don't disappear. That led me to believe that there was somebody not reading something right and in fact I had my husband go back to Jefferson, get the films from Jefferson so that they could be compared.

So when you ask me the question, I'm just saying that I did not believe that the films were clear.

Wendy stated she did not consider pursuit of possible malpractice claims in 2000, despite believing there was a mistake, or even in February 2004, after Dr. Pope stated he was mistaken when he told her she was all clear in 2000, asserting "until I was informed by Dr. King in the early part of July 2004, it never crossed my mind about malpractice. . . . All I wanted to do was get better."

Following continued oral argument, held on May 27, 2011, the motion judge concluded the statute of limitations with regard to plaintiffs' underlying medical malpractice claims commenced in 2000, requiring plaintiffs to have filed their claims by 2002. Therefore, the medical negligence claims were time barred when plaintiffs consulted with defendants in March 2006. Defendants' request for summary judgment was granted and plaintiffs' complaint was dismissed. This appeal ensued.


In conformity with well-established principles, we review the motion judge's grant of summary judgment de novo. Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 382 (2010). No deference is given to the legal conclusions reached, which are subject to plenary appellate review. City of Atl. City v. Trupos, 201 N.J. 447, 463 (2010).

Summary judgment is appropriate when, viewing the facts in the light most favorable to the non-moving party, Hodges v. Sasil Corp., 189 N.J. 210, 215 (2007), "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 the moving party is entitled to judgment as a matter of law. R. 4:46-2(c).

On appeal, plaintiffs challenge the motion judge's conclusion that Wendy's underlying medical negligence claims were time barred. They assert defendants were negligent in not pursuing Wendy's alleged claims against the Jefferson physicians. Although Wendy was last treated by the Jefferson physicians in 1997, she seeks to avail herself of the discovery rule, arguing she did not learn of medically negligent acts until her conversation with Dr. King in July 2004. Further, plaintiffs argue, if necessary, they were entitled to a hearing to determine the facts concerning the date of the discovery. See Lopez v. Swyer, 62 N.J. 267, 272-74 (1973).

"[A] legal malpractice action has three essential elements: '(1) the existence of an attorney-client relationship creating a duty of care by the defendant attorney, (2) the breach of that duty by the defendant, and (3) proximate causation of the damages claimed by the plaintiff.'" Jerista v. Murray, 185 N.J. 175, 190-91 (2005) (quoting McGrogan v. Till, 167 N.J. 414, 425 (2001)). Furthermore, "[t]o survive a grant of summary judgment in the legal malpractice action, plaintiffs had to show that they could have presented a prima facie case in the [underlying] action." Id. at 191.

The record does not clearly show defendants advised plaintiffs that they were unable to pursue possible claims against the Jefferson physicians because they were not licensed to practice law in the Commonwealth of Pennsylvania. Nevertheless, in defending against plaintiffs' professional negligence action, defendants assert any claims against the Jefferson physicians were barred by the time of plaintiffs' consultation. To assess these competing positions and determine the timeliness of plaintiffs' medical malpractice claims against the Jefferson physicians, we must examine the parameters of the law setting forth the statute of limitations in New Jersey and Pennsylvania.

In this state, N.J.S.A. 2A:14-2 requires a personal injury case "be commenced within [two] years next after the cause of any such action shall have accrued." "As the Court explained in Farrell v. Votator Div. of Chemetron Corp., 62 N.J. 111 (1973), the purpose of statutes of limitations is to stimulate litigants to pursue their causes of action diligently and to 'spare the courts from litigation of stale claims.'" Vispisiano v. Ashland Chem. Co., 107 N.J. 416, 426 (1987) (quoting Farrell, supra, 62 N.J. at 115).

"Where, however, the plaintiff does not know or have reason to know that he [or she] has a cause of action against an identifiable defendant until after the normal period of limitations has expired, the considerations of individual justice and the considerations of repose are in conflict and other factors may fairly be brought into play." [Ibid. (quoting Farrell, supra, 62 N.J. at 115).]

"[T]o avoid harsh results that otherwise would flow from mechanical application of a statute of limitations" in the face of a party's allegations of lack of knowledge of a cause of action, the courts have devised the "discovery rule," which modifies "the conventional statutory period but only to the extent of postponing the accrual of a cause of action until the plaintiff 'learns, or reasonably should learn, the existence of that state of facts which may equate in law with a cause of action.'" Ibid. (quoting Burd v. N.J. Tel. Co., 76 N.J. 284, 291 (1978)).

"The test for the application of the discovery rule is 'whether the facts presented would alert a reasonable person, exercising ordinary diligence, that he or she was injured due to the fault of another.'" McDade v. Siazon, 208 N.J. 463, 475 (2011) (quoting Caravaggio v. D'Agostini, 166 N.J. 237, 240 (2001)). Accord Roa v. Roa, 200 N.J. 555, 571 (2010). When the discovery rule applies, it equitably delays the accrual of a cause of action "'until the injured party discovers, or by the exercise of reasonable diligence and intelligence should have discovered[,] that he [or she] may have a basis for an actionable claim.'" Vispisiano, supra, 107 N.J. at 419 (quoting Viviano v. CBS, Inc., 101 N.J. 538, 546 (1986)). The law does not require a plaintiff actually know or specifically be informed she had a cause of action before the statute begins run. Rankin v. Sowinski, 119 N.J. Super. 393, 401 (App. Div. 1972).

Pennsylvania also imposes a two year statute of limitations for medical malpractice actions. 24 Pa.C.S. § 5524. The Commonwealth's version of the "discovery rule" is more restrictive than New Jersey's as "[t]he statute begins to run when the injured party possesses sufficient critical facts to put him [or her] on notice that a wrong has been committed and that he [or she] need investigate to determine whether he [or she] is entitled to redress." McDonald v. Rosen, 621 A.2d 128, 130 (1993) (citations and internal quotations omitted). See also Gleason v. Borough of Moosic, 15 A.3d 479, 484 (2011) ("Pennsylvania's formulation of the discovery rule reflects a narrow approach to determining accrual for limitations purposes and places a greater burden upon Pennsylvania plaintiffs vis-avis the discovery rule than most other jurisdictions." (citations and internal quotations omitted)). Under Pennsylvania law, [w]hen the discovery rule applies, the statute of limitations does not commence to run at the instant that the right to institute suit arises, i.e., when the injury occurs. Rather, the statute is tolled, and does not begin to run until the injured party discovers or reasonably should discover that he has been injured and that his injury has been caused by another party's conduct. [Fine v. Checcio, 870 A.2d 850, 859 (2005) (internal citations omitted).]

With these guidelines, we examine the facts in this matter.

Wendy states she understood there was some mistake in 2000 when told of Dr. Greatrex's "all clear" assurances, because she knew such a diagnosis was irreconcilable with the visible tumor tagged in 1997 by the Jefferson physicians. Under these circumstances, although Wendy did not have actual knowledge of negligence by the Jefferson physicians, she had constructive knowledge of a problem because the 1997 and 2000 radiographic results could not both be correct. The discrepancy between what she was told by the Jefferson physicians and Dr. Greatrex alerted her sufficiently such that she retrieved her 1997 films to compare the results. Dr. Pope was asked to compare the two films and repeated Dr. "Greatrex said you're all clear."

Wendy suggests the retrieval of the 1997 films was sufficiently diligent. We disagree because she never acted to investigate the medical significance of the divergence between the 1997 and 2000 films. Wendy does not suggest Dr. Pope's assurances that she was "all clear" undercut her understanding that the tumor and "the tag do[] not disappear" and she retained her belief that she was not "all clear." It is understandable Wendy's time and attention were focused on her health in 2000, rather than definitively investigating whether the Jefferson physicians were negligent. Nevertheless, the facts available to her at that time reasonably alerted her to a medical problem that she could not simply ignore.

Subsequently, Dr. Pope's February 2004 discovery of a cancerous tumor, accompanied by his admission he had made a mistake when reviewing the prior radiographic results, definitively provided Wendy with actual knowledge of medical error and a possible injury, prompting a reasonable person to diligently exercise efforts to discern the extent and nature of the injury caused by the error. Wendy now knew she had cancer in her chest, a fact that called into question the accuracy of the benign diagnosis in 1997 by the Jefferson physicians as well as Dr. Greatrex's "all clear" diagnosis in 2000.

These facts triggered the need to exercise reasonable diligence to determine the parameters of the negligence by past treating medical professionals. See Gleason, supra, 15 A.3d at 484 ("It is the duty of the party asserting a cause of action to use all reasonable diligence to properly inform him- or herself of the facts and circumstances upon which the right of recovery is based and to institute suit within the prescribed period."). Under Pennsylvania's discovery rule, Wendy was obligated to act as there are no facts reflecting she was unable to discover the extent of the medical negligence by the Jefferson physicians, if any. See Pocono Int'l Raceway, Inc. v. Pocono Produce, Inc., 468 A.2d 468, 471 (1983) ("The 'discovery rule' . . . arises from the inability of the injured, despite the exercise of due diligence, to know of the injury or its cause.").

Here, Wendy did not act despite: (1) knowing a tumor was tagged in 1997 by the Jefferson physicians; (2) learning she had conflicting radiographic results in 2000; (3) learning she had a cancerous chest tumor in February 2004; and (4) understanding the Jefferson physicians diagnosed the 1997 tumor as benign. She had every reason to conduct a diligent inquiry as minimal vigilance would have disclosed (1) whether the initial benign diagnosis was error, (2) there was a relationship between the tagged tumor and the cancerous tumor, and (3) the Jefferson physicians' acts or omissions caused or contributed to her injury. Wendy's failure to inform herself of facts supporting a possible right to recovery for negligence against the Jefferson physicians and the delay in initiating her action within the requisite two years of this knowledge, barred her right to seek recovery.

As these were cross motions for summary judgment, the salient facts were not disputed. The parties agree what plaintiff was told by the physicians in 1997, 2000, and 2004. We conclude from this review as a matter of law, the discovery rule does not apply as "reasonable minds would not differ in finding that a party [Wendy] knew or should have known on the exercise of reasonable diligence of his [or her] injury and its cause," allowing the court to determine "the discovery rule does not apply as a matter of law." Fine, supra, 870 A.2d at 858-59 (citations and internal quotation marks omitted). See also Gleason, supra, 15 A.3d at 485-86 (stating a party who has not used reasonable diligence in ascertaining her injury and its cause, is barred as a matter of law that from asserting her claim under the discovery rule).

Under New Jersey law, "[t]he linchpin of the discovery rule is the unfairness of barring claims of unknowing parties." Mancuso v. Neckles, 163 N.J. 26, 29 (2000). "Critical to the running of the statute is the injured party's awareness of the injury and the fault of another." Baird v. Am. Med. Optics, 155 N.J. 54, 66 (1998). The undisputed facts presented "would alert a reasonable person, exercising ordinary diligence, that he or she was injured due to the fault of another." Caravaggio, supra, 166 N.J. at 246. By 2000, Wendy's admissions reflect her knowledge of some error. Further, by February 2004, Wendy had all the necessary information and "knew or should have known" she needed to examine the extent and nature of the negligence by all past treating medical professionals to start the statute of limitations period. Baird, supra, 155 N.J. at 72. Further, these facts, which are not in dispute, obviate the need for a Lopez hearing.

We reject Wendy's suggestion that she lacked knowledge of the Pennsylvania physicians' culpability until July 2004 when Dr. King implicated them. Both Pennsylvania and New Jersey law proscribe plaintiffs from waiting until an expert identifies a potential cause of action to spark discovery and commencement of the statute of limitations. See Mancuso, supra, 163 N.J. at 35 (stating plaintiff need not have an expert report in hand before the statute of limitations begins to run); Brizak v. Needle, 239 N.J. Super. 415, 429 (App. Div.) (holding accrual of the statute of limitations will not be deferred until a plaintiff received concrete proof of liability from an expert), certif. denied, 122 N.J. 164 (1990); see also Gleason, supra, 15 A.3d at 484 ("The commencement of the limitations period is grounded on inquiry notice that is tied to actual or constructive knowledge of at least some form of significant harm and of a factual cause linked to another's conduct, without the necessity of notice of the full extent of the injury, the fact of actual negligence, or precise cause." (citations and internal quotation marks omitted)). We conclude, applying either New Jersey's version of the discovery rule or the more restrictive parameters delineated by Pennsylvania, plaintiffs' claims against the Jefferson physicians were "discovered" in February 2004, so that pursuit of the claims needed to be perfected by February 2006. See 42 Pa.C.S. § 5524; N.J.S.A. 2A:14-2. Plaintiffs did not contact defendants until March 2006, over two years after the commencement of the limitations period. Plaintiffs' claims against all parties -- the Jefferson physicians, as well as Drs. Pope and Greatrex -- had expired.

Consequently, plaintiff had an affirmative obligation under the discovery rule to perform due diligence and inquire to whether she had an actionable claim against the parties who were responsible for the irreconcilable films. She may not remain idle until a treating physician later identified a potential cause of action. Mancuso, supra, 163 N.J. at 35; McDonald, supra, 621 A.2d at 130. Accordingly, the statute of limitations was expired when plaintiffs sought legal counsel from defendants in March 2006.


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