On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-1325-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 19, 2012
Before Judges Reisner, Harris and Hoffman.
Plaintiff Gloriana Urban appeals from a December 21, 2011 order granting summary judgment dismissing her medical malpractice complaint against defendants Lawrence Naame, M.D., Atlantic Bone and Joint Surgeons, and Atlanticare Regional Medical Center. For the reasons that follow, we reverse the order on appeal and remand this matter to the trial court. We review the trial court's grant of summary judgment de novo, employing the same standard used by the trial court. See Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).
If there are no material facts in dispute, we consider whether, viewing the undisputed facts in the light most favorable to the non-moving party, the moving party is nonetheless entitled to judgment as a matter of law. Agurto v. Guhr, 381 N.J. Super. 519, 525 (App. Div. 2005). We have kept that standard in mind when reviewing the record, including the statements of material fact, and responses thereto, that the parties filed in compliance with Rule 4:46-2. These are the most pertinent facts. On December 10, 2007, plaintiff fell and broke her right ankle while visiting an Atlantic City casino. On that same day, Dr. Naame performed an open reduction internal fixation on the ankle, using a plate and screws. He told plaintiff the operation went "perfect" and she would be able to walk without crutches in four to six weeks. However, according to plaintiff, she continued to have pain and difficulty putting weight on the ankle, but Dr. Naame kept telling her that recovery would take time. Her last appointment with Dr. Naame was on March 26, 2008.
Because plaintiff was concerned that something was still wrong with her ankle, she consulted with a second doctor on April 18, 2008; he told her the ankle was not healing properly and she needed more surgery. After consulting a third doctor on June 16, 2008, she had the surgery on September 11, 2008. She filed her complaint on March 24, 2010, less than two years after she finished treatment with Dr. Naame, and about two years and three months after the December 10, 2007 surgery.
After plaintiff and Dr. Naame were deposed, defendants moved for summary judgment, contending that the two-year statute of limitations, N.J.S.A. 2A:14-2, commenced on December 10, 2007, when Dr. Naame performed the surgery, and plaintiff therefore should have filed her complaint by December 9, 2009. Plaintiff asserted that the statute of limitations was equitably tolled by the discovery rule, Lopez v. Swyer, 62 N.J. 267, 274- 76 (1973), because she did not discover that Dr. Naame had improperly performed the surgery and had misread the subsequent X-rays of her surgically-repaired ankle, until she consulted with the second doctor. She also contended that because she alleged that Dr. Naame was negligent in his post-surgical treatment, the statute of limitations did not begin to run until she ceased treatment with him on March 26, 2008.
In his deposition, Dr. Naame admitted that there were problems with the ankle post-surgery, but blamed that result entirely on what he claimed was plaintiff's failure to use her crutches. Dr. Naame also admitted that additional surgery might have been needed, but he testified that he would not have considered recommending more surgery to this patient because she was putting weight on the ankle despite his instructions to the contrary. He testified that, if she put weight on the ankle after a second surgery, that surgery would be rendered useless as well. Dr. Naame conceded that, on March 26, 2008, when he last examined plaintiff, he "was thinking something's going on with her ankle" but he did not disclose this information to plaintiff or discuss with her the possible need for more surgery.
The motion judge based his summary judgment decision on his interpretation of plaintiff's deposition testimony. During the deposition, defense counsel repeatedly attempted to establish that plaintiff was aware of Dr. Naame's possible malpractice as early as February 2008. Plaintiff did not make that admission.*fn1 The following colloquy illustrates the exchange:
Q. In February  being that you are telling me that you were being told the same thing about your recovery, you were thinking something is wrong and that it was something that Dr. Naame wasn't doing that was causing the problem?
A. Or something that he did. I don't know.
Q. But you had that thought in February ?
Q. Did you lose confidence because you thought that there was something that the doctor wasn't doing ...