May 8, 2017
appeal from an interlocutory order of the Superior Court of
New Jersey, Law Division, Mercer County, Docket No.
A. Petraske argued the cause for appellants (Buckley,
Theroux, Kline& Petraske, LLC, attorneys; Mr. Petraskeand
Teresa C. Finnegan, on the briefs).
J. Hubert argued the cause for respondent (Szaferman, Lakind,
Blumstein & Blader, PC, attorneys; Mr. Hubert, of counsel
and on the brief; Keith L. Hovey and Brandon C. Simmons, on
Drew Britcher argued the cause for amicus curiae New Jersey
Association for Justice (Britcher Leone, LLC, attorneys; Mr.
Britcher, of counsel; Jessica E. Choper, on the brief).
H. Mergner, Jr. argued the cause for amicus curiae New Jersey
State Bar Association (New Jersey State Bar Association,
attorneys; Thomas H. Prol, President, of counsel; Mr. Mergner
and Liana M. Nobile, on the brief).
Judges Sabatino, Haas and Geiger.
GEIGER, J.S.C. (temporarily assigned).
appeal raises the unresolved issue of what statute of
limitations applies to a common-law invasion of privacy claim
arising out of a defendant harmfully revealing private facts
about a plaintiff to a third party. It also raises the
related question of what limitations period applies to a
statutory cause of action for a defendant's improper
disclosure of a plaintiff's HIV-positive
status committed in violation of the AIDS
Assistance Act (Act), N.J.S.A. 26:5C-1 to -14. The trial
court held that both such claims are subject to a two-year
statute of limitations. The trial court further ruled that
plaintiff's medical malpractice claim was also subject to
a two-year statute of limitations. We affirm.
civil action seeks monetary damages and an award of
attorney's fees for invasion of privacy, violation of the
Act, and medical malpractice. The first legal issue presented
by this appeal is whether the tort of invasion of privacy by
public disclosure of private facts is an "injury to the
person" barred by the two-year limitation period set
forth in N.J.S.A. 2A:14-2, or instead by the one-year
limitation period for defamation set forth in N.J.S.A.
2A:14-3. The second legal issue is whether a violation of the
Act is subject to a one-year or two-year limitation period.
The third issue is whether a claim of medical malpractice
based upon the same wrongful public disclosure of private
medical facts is subject to a one-year or two-year limitation
addressing these issues, we note the standard of review that
governs our analysis. Defendants moved to dismiss the
complaint under Rule 4:6-2(e) for "failure to
state a claim upon which relief may be granted." Because
this appeal is from the denial of such a dismissal motion, we
must accept as true plaintiff's version of the events.
Rumbauskas v. Cantor, 138 N.J. 173, 175 (1994).
Here, the issues raised by defendants do not involve a
challenge to fact-finding on the part of the trial court, but
rather involve pure questions of law.
appeal, we engage in a de novo review from a trial
court's decision to grant or deny a motion to dismiss
filed pursuant to Rule 4:6-2(e). Rezen Family
Assoc., LP v. Borough of Millstone, 423 N.J.Super. 103,
114 (App. Div.), certif. denied, 208 N.J. 366
(2011). Moreover, when analyzing pure questions of law raised
in a dismissal motion, such as the application of a statute
of limitations, we undertake a de novo review. See
Royster v. N.J. State Police, 227 N.J. 482, 493 (2017);
Town of Kearny v. Brandt, 214 N.J. 76, 91 (2013). A
"trial court's interpretation of the law and the
legal consequences that flow from established facts are not
entitled to any special deference." Manalapan
Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366,
limited record in this interlocutory appeal reflects that
plaintiff John Smith was a patient of defendant, Dr. Arvind R.
Datla, a board-certified nephrologist. Co-defendant,
Consultants in Kidney Diseases, PA, is a medical practice
employing or owned by Dr. Datla. Dr. Datla was treating
plaintiff for acute kidney failure. During an emergent
bedside consultation in plaintiff's private hospital room
on July 25, 2013, Dr. Datla discussed with plaintiff his
medical condition. While doing so, Dr. Datla disclosed
plaintiff's HIV-positive status in the presence of an
unidentified third party who was also in the
room. Plaintiff claims that Dr. Datla thereby
revealed his HIV-positive status to the third party without
sued defendants, pleading various related theories. In his
original complaint, plaintiff alleged invasion of privacy
based on the inappropriate disclosure of private,
confidential medical information to a third-party without
plaintiff's consent, in violation of the Health Insurance
Portability and Accountability Act of 1996
("HIPAA"), 13 U.S.C.A. § 1320 (count
one). He also alleged medical malpractice based
on the inappropriate disclosure (count two). Plaintiff
further alleged that after the disclosure, Dr. Datla
attempted "to create a fraudulent ruse by which [Dr.
Datla] would allege in front of the unauthorized third party
and plaintiff that the medical information that had been
disclosed referred, in fact, to a different patient."
filed his complaint on July 1, 2015, almost two years after
the July 25, 2013 disclosure event. Plaintiff contends that
the disclosure of his HIV-positive status by defendant was
negligent, careless, reckless, willful and wanton. Plaintiff
claims that the disclosure caused him to endure pain and
suffering, emotional distress, other emotional injuries and
insult, and permanent injury with physiological consequences.
answer, Dr. Datla identifies himself as a board-certified
specialist in nephrology and asserts that he was practicing
nephrology in this case. After a
Ferriera conference, plaintiff produced an
affidavit of merit (AOM) from a board-certified specialist in
to the filing of plaintiff's amended complaint,
defendants simultaneously filed two separate motions to
dismiss plaintiff's complaint. One motion sought
dismissal of plaintiff's medical malpractice claim (count
two) on grounds that an AOM by a physician who is not a
board-certified nephrologist violates the Patients First Act,
N.J.S.A. 2A:53A-27, N.J.S.A. 2A:53A-41, and the Court's
holding in Nicholas v. Mynster, 213 N.J. 463, 487
(2013). The other motion sought dismissal of plaintiff's
invasion of privacy claim (count one) on grounds that HIPAA
does not provide for a private right of action. The trial
court denied each motion in separate orders dated August 19,
2016. The judge found that because plaintiff's medical
malpractice claim did not involve Dr. Datla's specialty
as a nephrologist, an AOM by a board-certified internist was
sufficient. The judge further found that although there is no
private right of action under HIPAA, plaintiff adequately
pleaded and could proceed under a common-law invasion of
privacy claim. Defendants did not move for leave to appeal
either of those orders.
same day, the trial court granted plaintiff leave to amend
his complaint. Plaintiff's amended complaint asserts
three causes of action: (1) invasion of privacy based on
public disclosure of private facts (count one); (2) medical
malpractice based on the improper disclosure (count two); and
(3) violation of the Act (count three). Plaintiff demands
judgment for compensatory damages, interest, attorney's
fees, and costs of suit, but he did not seek an award of
in September 2016, defendants filed a third motion to dismiss
the now-amended complaint, arguing that all three claims were
time-barred by a one-year statute of limitations.
Specifically, defendants argued that all three claims were
predicated on the public disclosure of private facts and
should be subject to the same statute of limitations.
Although New Jersey courts have not established a statute of
limitations for the public disclosure of private facts,
defendants analogized that type of invasion of privacy claim
to claims for placing plaintiff in a false light in the
public eye and defamation. Citing Rumbauskas,
supra and Swan v. Boardwalk Regency, 407
N.J.Super. 108 (App. Div. 2009), defendants further argued
that a one-year statute of limitations should apply to all
three counts because each count arose from the same operative
facts, albeit under different legal theories. Plaintiff
countered that he does not claim defamation, and that the
general two-year statute of limitations for personal injury
claims should apply to all three counts.
purposes of their motion, defendants assumed that the facts
alleged in plaintiff's amended complaint were true.
Namely, they assumed that the unauthorized and improper
disclosure allegedly made by Dr. Datla in the presence of a
third party that plaintiff was HIV-positive violated the Act,
and constituted invasion of privacy and medical malpractice.
concedes that, as his medical provider, Dr. Datla lawfully
possessed the confidential record that plaintiff was
HIV-positive. Plaintiff further concedes that the disclosure
that he was HIV-positive was truthful.
appeal from the October 19, 2016 order denying their motion
to dismiss. The judge held that a two-year statute of
limitations applied to all three counts. The judge focused on
the fact that the alleged harm resulted from the
dissemination of a truthful statement to a third party
without plaintiff's consent, rather than publication of a
false statement about plaintiff. In his oral decision, the
There are three separate claims here. There's no doubt
that there are three separate claims but they arise from a
common core set of facts, which is the disclosure of private
information to the public.
judge rejected the argument that the common set of facts
precluded different legal claims, concluding that "each
claim has different elements surrounding those common set of
facts." The judge found plaintiff's claims to be
similar to an intrusion claim. In describing defendants'
conduct, the judge stated:
So it's not someone creating words or creating a
document, it's words or a document that was disclosed
improperly, at least that's the allegation. So it goes to
the issue of an intrusion [into] somebody's private life.
judge also held that plaintiff's malpractice claim was
subject to the two-year statute of limitations, as was his
claim under the Act because it was "a personal injury
claim" that has "an impact on the plaintiff's
granted defendants' motion for leave to appeal the
October 19, 2016 order. On appeal, defendants raise the
following arguments: (1) the disclosure of private medical
information constitutes invasion of privacy; (2) New Jersey
case law imputes a one-year statute of limitations on
invasion of privacy claims based on words; (3) an invasion of
privacy based on public disclosure of private facts is
directly analogous to claims for placing plaintiff in a false
light and defamation; (4) claims for public disclosure of
private facts are governed by the one-year statute of
limitations for defamation; and (5) plaintiff's claim for
public disclosure of private facts is grossly dissimilar to
invasion of privacy by intrusion.
of limitations are essentially equitable in nature, promoting
the timely and efficient litigation of claims."
Montells v. Haynes, 133 N.J. 282, 292 (1993) (citing
Ochs v. Federal Ins. Co., 90 N.J. 108 (1982)). They
spare courts from litigating stale claims, penalize
dilatoriness, and serve as measures of repose. Farrell v.
Votator Div., 62 N.J. 111, 115 (1973); Rosenau v.
City of New Brunswick, 51 N.J. 130, 136 (1968).
for personal injuries must be commenced within two years
after the cause of action accrues. Baird v. Am. Med.
Optics, 155 N.J. 54, 65 (1998) (citing N.J.S.A.
2A:14-2). "Where the damages sought are for injuries to
the person, the applicable statute is [N.J.S.A. 2A:14-2]
which fixes the period of two years irrespective of the form
of the action." Burns v. Bethlehem Steel Co.,
20 N.J. 37, 39-40 (1955) (two-year personal injury statute of
limitations applied to hearing loss claim of third-party
beneficiary of contract between union and
for defamation are subject to the one-year statute of
limitations imposed by N.J.S.A. 2A:14-3, and must be filed
within one year after the publication of the alleged libel or
slander. Rumbauskas, supra, 138 N.J. at
applicable statute of limitations for three of the four types
of invasion of privacy have already been determined by our
courts. Specifically, claims for invasion of privacy based on
intrusion on seclusion are subject to the two-year statute of
limitations imposed by N.J.S.A. 2A:14-2. Id. at 182.
Claims for invasion of privacy based on placing plaintiff in
a false light are subject to the one-year statute of
limitations imposed by N.J.S.A. 2A:14-3. Swan,
supra, 407 N.J. Super, at 122-23. Claims for
invasion of privacy based on a person's name or likeness
are subject to the six-year statute of limitations imposed by
N.J.S.A. 2A:14-1. Canessa v. J.I. Kislak, Inc., 97
N.J.Super. 327, 355 (Law Div. 1967).
McGrogan v. Till, 167 N.J. 414 (2001), the Court set
forth the test to be employed when determining the