Opinion
DOCKET NO. A-1387-13T1
02-12-2015
AARON STYLMAN, Plaintiff-Appellant, v. SHERWOOD-DAVIS & GECK, TYCO INTERNATIONAL LTD., KENDALL COMPANY, COVIDEN, ROBERT WOOD JOHNSON UNIVERSITY HOSPITAL, Defendants, and DAVID LASKOW, M.D., Defendant-Respondent.
James S. Raban argued the cause for appellant (Gold, Albanese & Barletti, LLC, attorneys; Mr. Raban, on the briefs). Nicholas A. Rimassa argued the cause for respondent (Marshall Dennehey Warner Coleman & Goggin, attorneys; Walter F. Kawalec, III, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Waugh and Maven. On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-0897-06. James S. Raban argued the cause for appellant (Gold, Albanese & Barletti, LLC, attorneys; Mr. Raban, on the briefs). Nicholas A. Rimassa argued the cause for respondent (Marshall Dennehey Warner Coleman & Goggin, attorneys; Walter F. Kawalec, III, on the brief). PER CURIAM
Plaintiff Aaron Stylman appeals the Law Division's January 29, 2010 order granting summary judgment and dismissing his medical malpractice claim against defendant David Laskow, M.D. He also appeals the April 1, 2010 order denying his motion for reconsideration. We affirm.
I.
We discern the following facts and procedural history from the record on appeal.
Stylman, who suffered from renal failure, was scheduled for a kidney transplant in April 1999. On March 11, he was admitted to Robert Wood Johnson University Hospital (RWJ) for hemodialysis, which required placement of a catheter in a vein that empties into the right atrium. Prior to the treatment, Laskow, Stylman's treating physician, inserted a Shiley catheter through his jugular vein into his heart. RWJ's records reflect that Stylman "experienced several episodes of catheter dysfunction manipulated by Dr. Laskow."
On March 15, Laskow removed the Shiley catheter and inserted a Permcath catheter through Stylman's right internal jugular vein to the superior vena cava. It remained there for several months. The Permcath was observed in Stylman's chest x- ray on April 5.
There is a factual dispute as to whether part of the Shiley catheter was also visible. Laskow took the position that it was visible at that time, but one of Stylman's experts disagreed.
Stylman underwent the kidney transplant on April 11. The Permcath catheter was not removed at that time. According to Stylman, Laskow removed the Permcath during the early summer of 1999.
On January 27, 2004, Stylman returned to Laskow because of "acute-on-chronic" rejection of the transplanted kidney. In order to facilitate peritoneal dialysis, Laskow inserted a peritoneal catheter in Stylman's abdomen.
On February 5, Laskow inserted a Shiley catheter through the right femoral vein in Stylman's groin. Although the entry location was different from the ones used in 1999, that catheter was also placed adjacent to the atria. Laskow had originally intended to insert a Permcath catheter, but decided not to do so to avoid the use of a general anesthetic.
On February 6, Stylman developed an irregular heart rate and fever. A trans-esophageal echocardiogram revealed "catheter wire in the inferior vena cava, right atrium and superior vena cava; 4 mm mobile echodensity compatible with thrombus or vegetation on the right atrial portion of the catheter." A chest scan on February 12 revealed a "Shiley-type" catheter lodged in the upper inferior vena cava of the right side of Stylman's heart, measuring "approximately 14-16 cm in length."
On February 12, Stylman underwent open heart surgery to remove the catheter fragment imbedded in the atrial wall. His surgeon, Bernard G. Vasseur, M.D., characterized it as an "intracardiac foreign body." The fragment was described as a "segment of rubber tubing with a white tip at one end measuring 15 cm in length and 0.4 cm in diameter." Stylman's wife, Delilah Stylman, certified that she requested the catheter fragment be retained and that representatives of RWJ assured her it would be.
On February 19, Laskow met with Stylman and his wife. Laskow's hand written note in Stylman's chart noted that Stylman "was somewhat somnolent throughout the discussion" but that his wife understood the conversation. Laskow's notes reflect the following exchange:
I state that I was responsible for placing the Shiley catheter and changing over to Permacath. The [chest x-ray at] that time did not demonstrate any retained foreign bodies. But later - [at] the time of the [transplant] a [chest x-ray] (retrospectively) demonstrates the retained piece. . . . I felt that at the time of changing the catheter I was responsible for the retained piece as I could think of no other reasons for its presence. At this time Ms. Stylman's main concern is that her husband leaves the hospital . . . . She
understood that I was taking responsibility for the retained foreign body.
On January 31, 2006, Stylman filed a complaint sounding in products liability against Shiley Manufacturers, as well as fictitious parties who were potential manufacturers and designers of the catheter found in his heart. The complaint also named fictitious individual parties, none of whom were described as being doctors or surgeons. Stylman was granted leave to file an amended complaint to name the Kendall Company, which had originally been pled as a fictitious party. Kendall, a catheter manufacturer, removed the case to the United States District Court.
In December 2007, Stylman's expert issued a report stating that "[t]he ultimate fracture and embolization of the distal catheter fragment removed from Mr. Stylman's right atrium was not the result of any deviations of accepted standards of practice at any time during his care and treatment during the index Robert Wood Johnson University hospitalization beginning on February 5, 2004." However, the expert's report addressed only the placement of the catheter in 2004 and did not consider the placements in 1999.
Throughout discovery, Stylman's attorneys requested documents from RWJ, as well as the piece of catheter removed from Stylman's heart in February 2004. RWJ informed Stylman that it no longer had the catheter, despite its representations to Stylman's wife that it would be retained.
RWJ also had an independent obligation to retain the piece of catheter under N.J.S.A. 26:8-5.
On April 17, 2008, Kendall subpoenaed for production of Stylman's medical records and the films of his chest x-rays. Those documents had also been sought by Stylman during discovery. RWJ responded that "[t]he additional requested info is not in patient's chart."
It appears that Stylman never obtained his complete medical records prior to initiating the litigation, despite the fact that a patient ordinarily has a right to receive copies of medical records upon request. N.J.A.C. 8:43G-15.3(d).
On August 14, Laskow submitted an affidavit to the parties attesting to the following:
4. On February 12, 2004, Dr. Vasseur removed a catheter fragment from Mr. Stylman's heart. In his operative report, he noted that "a 6 inch catheter was found embedded inside the right atrial wall." It would take an extended period of time, i.e., at least a minimum of one year, for a catheter fragment to become embedded in the right atrial wall. This could not happen in seven (7) days.
5. On or about February 19, 2004, I reviewed Mr. Stylman's chest x-rays from 1999. The chest x-ray following the March 15, 1999 catheter removal/insertion did not demonstrate or show evidence of a retained catheter piece, but a chest x-ray taken three weeks later, on or about the date of Mr. Stylman's transplant on April 5, 1999,
did "(retrospectively) demonstrate the retained piece."
In December, Stylman sought and was granted leave to file a second amended complaint naming Laskow and RWJ as defendants. Shortly thereafter, Kendall was dismissed as a defendant without prejudice. In January 2009, the District Court remanded the case to state court because the addition of Laskow and RWJ destroyed complete diversity.
On January 18, Stylman provided a second expert report, which concluded that the retained piece of catheter was visible on a 1999 chest x-ray. On February 12, Stylman filed his second amended complaint naming Laskow and RWJ. Laskow answered in August, and asserted the running of the statute of limitations as a defense. He subsequently moved for summary judgment on that issue.
Following oral argument on January 22, 2010, the motion judge reserved decision. On January 29, the judge entered an order, accompanied by a letter opinion, granting Laskow's motion for summary judgment. The motion judge explained his reasons, in part, as follows:
Here, the Defendant admitted fault to the Stylmans in February of 2004, although he was not named as a defendant until February 23, 2009 in the Second Amended Complaint. That conversation in the hospital record triggered the two-year statute of limitations period. Furthermore, even
though it was not known which catheter had fragmented, the records show that Dr. Laskow inserted both the ones in 1999 and 2004. A reasonable person would have been put on notice that he was injured as a result of Dr. Laskow's actions.
Stylman then moved for reconsideration. On April 1, the motion judge entered an order denying Stylman's motion for reconsideration. Following the resolution of the claims against the other parties, Stylman appealed the dismissal of his claim against Laskow.
Without any citation to the record, Stylman asserts that RWJ notified his attorney that it had located the catheter fragment.
II.
Stylman argues that the motion judge should have denied Laskow's motion for summary judgment because, under the discovery rule enunciated by our Supreme Court in Lopez v. Sawyer, 62 N.J. 267 (1973), running of the statute of limitations was tolled until 2008, when he discovered that Laskow was negligent and that Laskow's negligence was the cause of his injury. He also contends that he merely substituted Laskow for one of the fictitious individual parties named in his original complaint, as a result of which his claim against Laskow related back to the filing of the first complaint in February 2006.
A.
We review a grant of summary judgment under the same standard as the motion judge. Rowe v. Mazel Thirty, LLC, 209 N.J. 35, 41 (2012). We must determine whether there are any genuine issues of material fact when the evidence is viewed in the light most favorable to the non-moving party. Id. at 38, 41; Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007) (quoting Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 536 (1995)) (internal quotation marks omitted). "[T]he legal conclusions undergirding the summary judgment motion itself [are reviewed] on a plenary de novo basis." Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 385 (2010).
Generally, the statute of limitations sets forth the period of time within which a party must initiate a lawsuit. Szczuvelek v. Harborside Healthcare Woods Edge, 182 N.J. 275, 281 (2005). A medical malpractice action, which is essentially a lawsuit seeking damages for personal injury caused by the wrongful act of another, must be filed within two years of the date of the alleged negligence or wrongful act. Ibid.; N.J.S.A. 2A:14-2.
"To avoid the harsh effects of a mechanical application of [the] statute of limitations," the Supreme Court adopted the discovery rule, which provides that, in appropriate cases, "'a cause of action will be held not to accrue until the injured party discovers, or by an exercise of reasonable diligence and intelligence should have discovered that he may have a basis for an actionable claim.'" Szczuvelek, supra, 182 N.J. at 281 (quoting Lopez, supra, 62 N.J. at 272). The discovery rule serves to suspend the statute of limitations "when the plaintiff is unaware of his or her injuries or of the culpability of another." Dunn v. Borough of Mountainside, 301 N.J. Super. 262, 274 (App. Div. 1997) (citations and internal quotation marks omitted), certif. denied, 153 N.J. 402 (1998). It is essentially a rule of equity. Lopez, supra, 62 N.J. at 273.
When conducting a Lopez analysis, a court must consider the following factors: the nature of the alleged injury; the length of time that has elapsed since the wrongdoing; whether the delay was deliberate; whether the defendant has been prejudiced by the delay; and the information available to the claimant. Id. at 276. The Lopez discovery rule will not excuse every late filing of a complaint. If "the facts presented would alert a reasonable person exercising ordinary diligence that he or she was injured due to the fault of another[,]" the discovery rule will not excuse a late filing. Martinez v. Cooper Hosp.-Univ. Med. Ctr., 163 N.J. 45, 52 (2000).
The injury in this case resulted from the embolization of a portion of a Shiley catheter in Stylman's right atrial wall. Our reading of the record is that Stylman commenced this litigation under the belief that the catheter at issue was the one inserted by Laskow in February 2004. Having been advised that Laskow's 2004 insertion of that catheter did not amount to practice outside of the standard of care, Laskow focused the litigation on the corporate entities responsible for the design and manufacture of the catheter. Consequently, he commenced timely products liability litigation in February 2006. Although he named fictitious individual defendants, none of them were described as medical practitioners.
At some point in 2008, possibly as a result of Laskow's August 2008 affidavit, focus shifted to the Shiley catheter that had been inserted and then removed in March 1999. That prompted Stylman to seek leave, which was granted, to file the second amended complaint naming Laskow as a defendant. Stylman contends that, as to Laskow, the statute of limitations did not begin to run until the focus of the litigation shifted to the March 1999 procedures, as a consequence of which his claim against Laskow was timely.
The motion judge found otherwise, based on the fact that Laskow advised Stylman and his wife in February 2004 that he took responsibility for the retained portion of the catheter left behind in March 1999 when he replaced the Shiley catheter with the Permcath. Laskow did so because he "felt that that at the time of changing the catheter [he] was responsible for the retained piece as [he] could think of no other reasons for its presence." The motion judge determined that the statute of limitation began to run as to Laskow in February 2004. As a result, he held that Stylman's 2009 amended complaint naming Laskow as a defendant was untimely. We agree.
Laskow's reasoning was amplified in his August 2008 affidavit, in which he stated that "[i]t would take an extended period of time, i.e., at least a minimum of one year, for a catheter fragment to become embedded in the right atrial wall. This could not happen in seven (7) days."
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We find no merit in Stylman's assertion that the running of the statute remained tolled because his expert found no fault with Laskow under the mistaken belief that the 2004 catheter caused the injury. It appears from the record that Sylman's expert never considered the possibility that the catheter was from the 1999 procedures, nor is it clear that he was asked to do so, despite the information conveyed to the Stylmans in 2004 by Laskow himself, which event is clearly reflected in the medical record. In addition, Stylman must have been aware that he underwent dialysis in 1999. All of these facts would have "alert[ed] a reasonable person exercising ordinary diligence" to the possibility that Laskow was at fault.
Stylman's reliance on Mancuso v. Neckles, 163 N.J. 26 (1998) in that regard is misplaced. In Mancuso, the Supreme Court held that, "when a patient has relied on competent expert advice that one or more of her treating physicians did not contribute to the patient's injuries, later assertions to the contrary by a competent expert would then provide the 'basis for an actionable claim.'" Id. at 37 (quoting Lopez, supra, 62 N.J. at 272). Stylman's case is clearly distinguishable because Laskow himself admitted responsibility and outlined his reasons for doing so prior to the filing of suit and prior to the issuance of Stylman's expert's report in 2007. We also note that Stylman's expert report, the third he submitted, which disagreed with Laskow's opinion about the April 15, 1999 x-ray, was not issued until shortly before oral argument of Laskow's summary judgment motion.
Certainty concerning Laskow's responsibility was not a requirement to start the statute of limitations running. See Lapka v. Porter Hayden Co., 162 N.J. 545, 555-56 (2000). Plaintiffs cannot delay their filings until obtaining an expert to support their cause of action. Brizak v. Needle, 239 N.J. Super. 415, 429 (App. Div.), certif. denied, 122 N.J. 164 (1990).
Applying the Lopez principles, we agree with Judge Vincent LeBlon that the statute of limitations began to run when Laskow told the Stylmans in February 2004 that the catheter at issue was from 1999 and that he took responsibility for the failure to completely remove it. 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 v. Old Bridge-Sayreville Med. Grp., 134 N.J. 241, 248 (1993). Stylman had knowledge of such facts in February 2004.
B.
Having reviewed Stylman's arguments with respect to the issue of the fictitious defendants, we find them to be without merit and not warranting extended discussion in a written opinion. R. 2:11-3(e)(1)(E). We add only the following.
"The fictitious defendant rule was promulgated to address the situation in which a plaintiff is aware of a cause of action against a defendant but does not know the defendant's identity." Carvaggio v. D'Agostini, 166 N.J. 237, 260 n.1 (2001). In Mancuso, supra, 163 N.J. at 38 n.1, the Supreme Court mentioned that the fictitious party rule "does not apply" in the setting where the identity of defendant-doctors was "always known to plaintiff." In the facts here, the record includes that Laskow first performed a procedure on Stylman in 1999. He then performed further procedures in 2004, and met personally with Stylman and his wife to take responsibility for the catheter fragment. Stylman was not unaware of Laskow's identity.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION