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Finding Injuries and Forgetting People in New Jersey.

What happens when an attorney does not name every party who may be responsible in a medical malpractice suit? Does forgetting a person rise to the level of legal malpractice?Dellaquila v. Bendit Weinstock P.A., A-5268-10T4, 2012 WL 1581219 (N.J. Super.Ct. App. Div. May 8, 2012), is a case which deals with this issue as well as how forgetting a person interacts with the statute of limitations which has previously been discussed on this blog.

The case arose based on Ms. Dellaquila receiving skin cancer treatments at a hospital in 1997. During that time period, the plaintiff sought treatment from 2 different doctors to aid in the removal of skin cancer from her scalp. The last treatment for the cancer was November, 1997, and there was no follow-up. Subsequently, in 2000, a radiologist reviewed x-ray imaging, and told the plaintiff she was "all clear." Because the plaintiff felt this report was at odds with the 1997 reports, she sought a second opinion which affirmed the "all clear."

4 years later, in January 2004, a cancerous legion was biopsied from the defendant's right eye. The result was a complete loss of sight in the right eye. Despite eye removal, the plaintiff underwent further surgery to remove a cancerous region from her lung. While performing follow-up treatment in February, the reviewing radiologist admitted she mistakenly read the films. After receiving further treatment from cancer specialists, the plaintiff was informed that the 2000 doctor, was also in the wrong, and had missed a tumor.

On March 21, 2006, the defendant attorneys discussed moving forward on a medical malpractice suit for Ms. Dellaquilla. At that time, she was informed that the statute of limitations was fats approaching, and that there was a chance the suit would be dismissed, if filed without the required certificate of merit. Ms. Dellaquilla was sent this information again in May, and acknowledged receipt of the same. One day after this letter, a medical malpractice suit was filed against only the doctor who missed the lung tumor. The defendant attorneys did not name either 1997 doctor in the complaint.

The attorneys being sued in this case withdrew from representation because the expert would not opine to causation. Ms. Dellaquilla was informed about this, and eventually, he suit was dismissed in July, 2007. In November, 2009, Delaquilla sued her former attorneys for legal malpractice because they failed to include all of the correct parties. In response, the defendant attorneys responded that the statute of limitations barred those other claims, which is why the doctors were not included. The court initially heard testimony on this fact, and decided to dismiss because the Judge believed the original malpractice was in 2000, and thus 2002 was the statute of limitations date. Thus, when attorneys were sought in 2006, the action was barred. The plaintiffs then appealed.

Delaquilla attempted to use the discovery rule to lengthen the statute of limitations in this case. The discovery rule states that an action can not begin to toll until discovery of the injury. The plaintiff was arguing that discovery was 2004. Furthermore, she argued that if necessary this fact could be the basis of a hearing. Since the defendants moved for summary judgment, plaintiff had to show at least the existence of an attorney-client relationship; the breach of duty by that defendant, and proximate causation of damages. Because the hospitals were inPennsylvania, the court needed to discuss bothPennsylvaniaandNew Jerseylaw. The discussion of this article will focus onNew Jersey.

New Jerseyrequires a personal injury case be brought within 2 years, which is why the 2004 discovery date was so important to the plaintiff. Statutes of limitation exist to prevent courts from litigating stale claims. However, the discovery rule liberalizes this limitation, by allowing a person to have 2 years from the time the plaintiff learns or reasonably should learn the existence of a state of facts which provides a cause of action. This was the crux of the issue in this case, which the defendants were fighting. The rule also requires a person search diligently for any pending action when they believe they have been harmed. The court then delved into the fact specific matters of dates in this case.

After in-person examination, the court believed the plaintiff knew, or should have known there was a mistake in 2000, when that diagnosis was at odds with the 1997 diagnosis. In fact, if you look at the facts, the plaintiff is the one who initially brings this fact to the attention of a different doctor. The court was unmoved however, by what they did not deem to be diligent efforts. While, it makes sense that her health was an issue in 2000, it is not an excuse that the plaintiff did not act on the suspected wrong. The February 2004 admission, however, certainly should have set a reasonably diligent person on an investigative path. The court ultimately believed the delay by the plaintiff in investigating resulted in barring this action. Thus, the court barred the action, and did not discuss whether the lack of names by the defendant attorneys contributed to any malpractice.

While it is unstated, I believe the court did not look at the absence of the names, because the attorneys acted correctly. It is implicit within the court's reasoning, that in upholding the non-application of the discovery rule, the attorneys made a right decision in not naming the doctors desired by the plaintiff. What could she have done differently then?

It seems that despite all the delay by the plaintiff, the court still provided until 2004 for an action to be filed. That is 4 years after the last "bad" doctor visit. She needed to recognize the injury upon the admission in 2000, and sought an attorney at that point. One must also assume that the case would have been much different had the plaintiff simply seen an attorney one month earlier. Personally, I would be curious to know, and the court does not answer, what would have happened if the reason these attorneys were used was because of a referral. That would be an interesting issue, and one, that in this day and age if it has not happened already with the proliferation of instant communication, is a predetermined eventuality.

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