Opinion
DOCKET NO. A-4053-09T3
08-16-2011
ADELINA GAPAC, Plaintiff-Appellant, v. VITREO-RETINAL ASSOCIATES OF NEW JERSEY, P.A. and FRANCIS CANGEMI, M.D., Defendants-Respondents.
Paul R. Garelick argued the cause for appellant (Lombardi & Lombardi, attorneys; Mr. Garelick and Anthony Sarno, Jr., on the brief). Jill R. O'Keeffe argued the cause for respondents (Orlovsky, Moody, Schaaff, Conlon & Gabrysiak, attorneys; Ms. O'Keeffe, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges A. A. Rodríguez and C. L. Miniman.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-6820-05.
Paul R. Garelick argued the cause for appellant (Lombardi & Lombardi, attorneys; Mr. Garelick and Anthony Sarno, Jr., on the brief).
Jill R. O'Keeffe argued the cause for respondents (Orlovsky, Moody, Schaaff, Conlon & Gabrysiak, attorneys; Ms. O'Keeffe, on the brief). PER CURIAM
Adelina Gapac appeals the summary judgment dismissing her suit against Vitreo-Retinal Associates of New Jersey, P.A., (VRA) and Francis Cangemi, M.D. for medical malpractice. We affirm.
The counts against Columbus Hospital and Patrick Clancy, M.D. were dismissed by stipulation on June 4, 2009 and March 2, 2007 respectively.
Gapac's eye doctor referred her to VRA in 1995 because of her vision problems. After an examination, VRA doctors Caesar Pitta and Francis Cangemi explained to Gapac that although surgery was not strictly necessary, there was an elective procedure which could correct her vision problems by removing the epiretinal member from her left eye. Cangemi had performed approximately five thousand of these surgeries, and explained that there was about a two-percent risk of suffering a retinal detachment which could result in partial blindness.
Gapac testified that the doctors never mentioned the risk of partial blindness. According to her, she raised the possibility of blindness and Cangemi "assured [her] it's not going to happen."
During the following months, Gapac visited two more doctors to get second opinions about the surgery. She testified that both doctors recommended the surgery, but were evasive about the risks, saying only that "[y]ou are not going to go blind."
Gapac was afraid of the risks of the surgery. Her daughters also feared that she would lose her eyesight and attempted to dissuade her from having the surgery. Nevertheless, Gapac "was determined to go ahead" with the procedure.
On April 24, 1997, Cangemi performed the surgery at Columbus Hospital. Unfortunately, it was clear shortly after her surgery "[t]hat something was wrong." Her retina had detached and follow-up surgery was necessary. Despite the corrective surgery, Gapac lost the central vision in her left eye. The condition has not improved since April 1997.
Gapac continued post-operative treatment with Cangemi until approximately December 1999. According to Gapac, Cangemi routinely advised her that the condition would heal and that her eyesight would return. The condition did not improve. During the post-operative treatment period, Gapac became concerned that Cangemi was not giving her an accurate diagnosis and decided to visit other doctors.
The first doctor she saw was Dr. Eric Kanter. Kanter blamed her partial blindness on the surgery. In a June 24, 1999 letter to another of Gapac's eye doctors on which Gapac was copied, Kanter stated that Gapac would not "realize any improvements in central visual function," from additional treatment, "given the extent of her macular scarring" in the left eye. In another letter on which Gapac was copied, Kanter explained that Gapac's "[s]tatus [was] post repair of retinal detachment."
Gapac testified that she did not receive either of these letters and was unaware of their contents. She alleges that Kanter only told her that her "eye [was] fine" and would not answer when her vision would return.
During the next three years, Gapac visited at least six more ophthalmologists. According to her, these doctors did not attribute her injury to her surgery or inform her that the damage to her left eye was permanent.
It was only on December 3, 2004, when she visited with Dr. Marco Zarbin that Gapac alleges she first learned of the permanency of her injury. She then met with Dr. Uri Shabto in New York on March 8, 2005. He "confirmed Dr. Zarbin's findings" and opined that Cangemi had removed her macula and performed the second surgery "to disguise the permanent injury caused during the first surgery." At this point, Gapac sought the assistance of an attorney.
Gapac filed suit on September 20, 2005, alleging negligence, fraud, emotional distress, res ipsa loquitur, lack of informed consent and breach of contract. VRA answered the complaint asserting that Gapac's suit was barred by the statute of limitations.
Judge Vincent LeBlon conducted a pre-trial Lopez hearing to determine whether Gapac's complaint was timely. After hearing testimony, the judge issued a written opinion on April 1, 2010, explaining that Gapac knew of the risks of the surgery and was aware of her injury in 1999. This knowledge, taken with her partial blindness during the year after the surgery "was sufficient to alert her to the possibility that the surgery had failed and to put her on notice of any potential claim for medical negligence."
Lopez v. Swyer, 62 N.J. 267 (1973).
The judge also found that Gapac was not credible because her demeanor "suggested . . . that she was being less than truthful and was stating facts so as to attempt to avoid the application of the statute of limitations." Thus, the judge did not believe that the doctors she visited after her surgery did not inform her that her partial blindness was attributable to her surgery. Accordingly, Judge LeBlon dismissed the complaint on April 1, 2010.
We review an interpretation of law de novo. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). A judge's findings of fact, however, are entitled to deference where they "'are supported by adequate, substantial and credible evidence on the record.'" MacKinnon v. MacKinnon, 191 N.J. 240, 253-54 (quoting N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007)), stay denied, 551 U.S. 1177, 128 S. Ct. 7, 168 L. Ed. 2d 784 (2007). Credibility findings are entitled to similar deference because they "'are often influenced by matters such as observations of the character and demeanor of witnesses and common human experience that are not transmitted by the record.'" In re Taylor, 158 N.J. 644, 660 (1999) (quoting State v. Locurto, 157 N.J. 463, 474 (1999)).
Pursuant to N.J.S.A. 2A:14-2(a_, a plaintiff must bring a personal injury action "within two years next after the cause of any such action shall have accrued." A cause of action for medical malpractice accrues within the meaning of N.J.S.A. 2A:14-2(a) on "the date the alleged act or omission occurred." Baird v. Am. Med. Optics, 155 N.J. 54, 65 (1998).
To remedy the "harsh and unjust results which flow from a rigid and automatic adherence" to the statute of limitations, our courts adopted the discovery rule. Lopez, supra, 62 N.J. at 273-74. The discovery rule "delays accrual of a cause of action '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.'" Guichardo v. Rubinfeld, 177 N.J. 45, 51 (2003) (alterations in original) (quoting Lopez, supra, 62 N.J. at 272). This is a rule of equity, preventing courts from "barring claims of which a party is unaware." Roa v. Roa 200 N.J. 555, 571 (2010).
Mere discovery of an injury is not sufficient to trigger the statute of limitations where the injury results from a complex medical procedure. See Mancuso v. Neckles, 163 N.J. 26, 34 (2000). Instead, the statute of limitations begins to run once the plaintiff receives a medical opinion attributing his or her injury to a doctor's fault. See Vispisiano v. Ashland Chem. Co., 107 N.J. 416, 437 (1987). Thus, the statute of limitations is tolled until the plaintiff knows of the injury, its cause and that it results from another's fault. Savage v. Old Bridge-Sayreville Med. Grp., 260 N.J. Super. 417, 421 (App. Div. 1992), aff'd, 134 N.J. 241 (1993). Awareness of fault requires only that the plaintiff is cognizant of "facts that would alert a reasonable person exercising ordinary diligence that a third party's conduct may have caused or contributed to the cause of the injury and that conduct itself might possibly have been unreasonable or lacking in due care." Savage, supra, 134 N.J. at 248.
For example, in Lopez, the plaintiff brought suit five years after suffering severe burns from negligently administered radiation therapy. Lopez v. Swyer, 115 N.J. Super. 237, 242-43 (App. Div. 1971), aff'd, 62 N.J. 267 (1973). Although the plaintiff knew of her injuries (burns), and the cause (radiation), the Supreme Court held that the statute of limitations was tolled until the plaintiff knew that the injury was the product of her former doctor's malpractice. Lopez, supra, 62 N.J. at 271-72, 277.
Similarly, in Baird, the plaintiff suffered injuries after eye surgery in 1983. 155 N.J. at 58, 61. After more than a year of post-operative treatment with the same doctor during which time the condition did not improve, the plaintiff left the care of that doctor in 1984. Id. at 61-62. She brought suit in 1992, and the judge dismissed the action as untimely pursuant to Lopez. Id. at 58, 64. The Supreme Court affirmed:
[Plaintiff's] own testimony establishes that no later than 1985 she knew enough to discover her cause of action against [the defendant doctor]. [Plaintiff] believed that she had been injured by [defendant's] surgery, . . . she knew who had performed the surgery, . . . her eyesight worsened as a result of the surgery, and . . . she became dissatisfied with [defendant's] treatment and switched to another physician. Under the standard set forth in Lopez, [plaintiff] knew at least by 1985 of facts that would have alerted a reasonable person that her eye injuries were possibly, if not probably, caused by the fault of another.
[Id. at 68.]
Here, the judge's findings are amply supported by the record. Gapac knew of her injury and its cause immediately after the surgery. She admitted that her "main concern" prior to the procedure was the risk that she would go blind. Like Baird, Gapac should have been able to determine that her post-operative condition resulted from the surgery because she was cognizant of that specific risk before the procedure.
Indulging Gapac's contention that she was not aware of the risk of blindness prior to surgery, however, does not yield a different result. Kanter explained to her that her injuries were attributable to the surgery in a March 1998 letter. Gapac claims that Kanter did not tell her this, and that the letter was sent to the wrong address, but the judge found that "completely unfounded based upon [Gapac's] testimony, as well as the records of Dr. Kanter." As the judge explained, the entire purpose for visiting with Kanter, rather than Cangemi, was to get "honest answers" about her post-operative condition.
Lastly, Gapac's contention that none of the four ophthalmologists with whom she visited after the operation identified her post-operative injury borders on the incredible. The judge did not credit this testimony, and the record supports this determination.
Affirmed
I hereby certify that the foregoing is a true copy of the original on file in my office.
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CLERK OF THE APPELLATE DIVISION