NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3269-16T2
LYNDA FERRARI,
Plaintiff-Appellant,
v.
JOAN F. O'SHEA, M.D.,
Defendant-Respondent,
and
VIRTUAL WEST JERSEY HOSPITAL,
Defendant.
_____________________________
Argued May 8, 2018 – Decided July 13, 2018
Before Judges Reisner and Hoffman.
On appeal from Superior Court of New Jersey,
Law Division, Camden County, Docket No.
L-3731-14.
Sherri L. Warfel argued the cause for
appellant (Stark & Stark, attorneys; Sherri
L. Warfel, of counsel; Alex J. Fajardo, on the
brief).
Thomas M. Walsh argued the cause for
respondent (Parker McCay, PA, attorneys;
Thomas M. Walsh and Mary Kay Wysocki, of
counsel; Kathryn A. Somerset, on the brief).
PER CURIAM
Plaintiff Lynda Ferrari appeals from a February 3, 2017 order,
dismissing her medical malpractice claim against Dr. Joan F. O'Shea
on statute of limitations grounds. Plaintiff also appeals from a
March 20, 2017 order denying her motion for reconsideration.1
Because we conclude plaintiff was entitled to the benefit of the
discovery rule, we reverse the orders on appeal and remand the
case to the trial court.
I
We briefly summarize the facts relevant to our disposition.
In April 2006, plaintiff fell down some steps at her place of
employment, and injured her right knee and lower back. She
received treatment for her injuries through her employer's
workers' compensation plan. On July 23, 2008, Dr. O'Shea, to whom
plaintiff was referred by the compensation carrier, performed
surgery to address plaintiff's right-sided herniated discs at L4-
L5 and L5-S-1.
The surgery did not alleviate plaintiff's pain and she began
to develop additional physical problems. According to plaintiff,
1
The court dismissed plaintiff's complaint against co-defendant
Virtua-West Jersey Health System, Inc. (improperly impleaded as
Virtual West Jersey Hospital), by order of August 21, 2015.
Plaintiff did not appeal from that order, and the co-defendant is
not participating in this appeal.
2 A-3269-16T2
when she told Dr. O'Shea that she was still in pain, Dr. O'Shea
assured her that "it's going to take time to heal, and it will
subside." Thereafter, plaintiff went to one workers' compensation
doctor after another, seeking treatment for her persistent pain.
None of them criticized the treatment Dr. O'Shea had provided,
until Dr. Anton Kemps issued a report in September 2012.
According to her complaint, filed on September 29, 2014,
plaintiff first learned that Dr. O'Shea may have committed
malpractice, when plaintiff received a September 28, 2012 report
from Dr. Kemps, stating that there was no indication that plaintiff
"had any material placed within her disc spaces to replace the
removed disc." Dr. Kemps stated that the absence of replacement
material made plaintiff vulnerable to develop new herniations.
According to the complaint, a review of Dr. O'Shea's operative
report did not show that any stabilization device was inserted to
replace the removed disc. In her deposition testimony, plaintiff
confirmed that she first learned that Dr. O'Shea may have done
something wrong, when she found out about Dr. Kemps' September 28,
2012 report.
Defendant filed an answer in January 2015, pleading the
statute of limitations, among other defenses. In February 2015,
the case was stayed for ninety days to allow plaintiff to retain
new counsel, due to the untimely death of her attorney. After
3 A-3269-16T2
plaintiff obtained new counsel, the parties completed fact
discovery, including plaintiff's deposition on July 14, 2016.
During the deposition, defendant's counsel reminded plaintiff's
counsel that "there is a statute of limitations issue in this
case. And it's a significant one." Defendant filed a motion to
dismiss on statute of limitations grounds on December 29, 2016.
The summary judgment record includes Dr. Kemps' September 28,
2012 report. It also includes a note from Dr. O'Shea, confirming
that plaintiff's "L4-5 recurrent disc herniation . . . does come
under the Workman's Compensation accident of April 29, 2006." The
note is dated April 4, 2012, however the correct date was
apparently April 4, 2013, because the note refers to information
taken from Dr. O'Shea's "last note . . . from February 28, 2013."
The February 28, 2013 note also confirms the presence of an
additional herniation at L4-5, attributable to the original
workers' compensation covered accident. In other words, viewed
most favorably to plaintiff, Dr. O'Shea admitted in her notes that
plaintiff experienced an additional herniation at the site of the
operation.
In granting defendant's motion, the trial court relied on a
January 29, 2009 report from Dr. Kemps to the workers' compensation
carrier, in which Dr. Kemps noted that plaintiff had developed
"arachnoiditis." The trial court also relied on an April 23, 2009
4 A-3269-16T2
letter from plaintiff's workers' compensation attorney written to
his adversary in the compensation case. The letter referred to
Dr. Kemps' report, noting that plaintiff had developed
arachnoiditis as a result of the surgery and asking that the
insurer provide plaintiff continued medical coverage for that
condition.2
Dr. Kemps' 2009 report stated that, according to Dr. O'Shea's
notes, an August 2008 follow-up MRI had revealed "minimal
enhancement of nerve roots of the L4-5 level consistent with
arachnoiditis."3 Dr. Kemps recommended a "five percent (5%)
increase" in plaintiff's "partial total disability of the lumbar
spine referable to surgical repair of disc herniations in the low
lumbar area." There is no testimony or evidence, however, that
Dr. Kemps' opinion would alert either a workers' compensation
attorney, or a layperson such as plaintiff, that the surgery was
a failure or that Dr. O'Shea had committed malpractice. To the
contrary, Dr. Kemps' evaluation was that the arachnoiditis was of
minimal significance, only warranting a five percent increase in
2
In Dr. O'Shea's deposition, she explained that arachnoiditis
was "clumping of the nerve roots within the thecal sac."
3
Dr. O'Shea's notes are in the summary judgment record. She
found some arachnoiditis, but on re-examination, found that the
arachnoiditis had gone away.
5 A-3269-16T2
plaintiff's partial total disability for workers' compensation
purposes.
In denying plaintiff's reconsideration motion, the trial
court relied on a March 6, 2012 evaluation by Dr. Goldstein,
another workers' compensation doctor. Dr. Goldstein stated that
"the operation did not help the patient, and as she recalls, it
made things worse." The judge also rejected plaintiff's argument
that defendant waived the statute of limitations defense through
delay in asserting it.
II
The trial court treated defendant's dismissal motion as one
for summary judgment. Accordingly, our review is de novo,
employing the same standard as the trial court. See Townsend v.
Pierre, 221 N.J. 36, 59 (2015) (citing Davis v. Brickman
Landscaping, Ltd., 219 N.J. 395, 405 (2014)). We review the denial
of a reconsideration motion for abuse of discretion. Pitney Bowes
Bank, Inc. v. ABC Caging Fulfullment, 440 N.J. Super. 378, 382
(App. Div. 2015).
A medical malpractice claim must be filed within two years
of the accrual date, which is usually the date of the negligent
act. Szczuvelek v. Harborside Healthcare Woods Edge, 182 N.J.
275, 281 (2005). In an appropriate case, however, "a cause of
action will be held not to accrue until the injured party
6 A-3269-16T2
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." Ibid. (alteration in original)
(quoting Lopez v. Swyer, 62 N.J. 267, 273 (1973)).
The goal of the discovery rule is to "avoid [the] harsh
results that otherwise would flow from mechanical application of
a statute of limitations." Kendall v. Hoffman-La Roche, Inc., 209
N.J. 173, 191 (2012) (alteration in original) (quoting Caravaggio
v. D'Agostini, 166 N.J. 237, 245 (2001)). The standard is
"basically an objective one—whether plaintiff knew or should have
known of sufficient facts to start the statute of limitations
running." Caravaggio, 166 N.J. at 246 (quoting Baird v. Am. Med.
Optics, 155 N.J. 54, 72 (1998)). In applying the rule, the court
must also consider "whether the delay may be said to have
peculiarly or unusually prejudiced the defendant." Lopez, 62 N.J.
at 275-76.
Plaintiff presents the following arguments on this appeal:
I. THE COURT ERRED IN DETERMINING THAT
PLAINTIFF SHOULD HAVE KNOWN THAT DEFENDANT'S
SURGERY WAS A DEVIATION FROM THE STANDARD OF
CARE BECAUSE HER LAWYER AUTHORED A LETTER THAT
CLAIMED SHE HAD A PERMANENT BACK INJURY
II. THE COURT ERRED IN FAILING TO CONSIDER
THAT THE DEFENDANT WAS NOT PREJUDICED BY
PROPER APPLICATION OF THE DISCOVERY RULE
7 A-3269-16T2
III. THE COURT ERRED IN FAILING TO CONSIDER
THAT THE DEFENDANT WAIVED THE STATUTE OF
LIMITATIONS DEFENSE BY LITIGATING THE CASE
THROUGH COMPLETION OF DISCOVERY TO THE EVE
[OF] TRIAL
Plaintiff's third point is without merit. Defendant timely
asserted the statute of limitations in its answer. Further,
defendant needed to conduct discovery in order to develop evidence
in support of the motion, and defense counsel reminded plaintiff's
counsel of the defense during discovery. See Cipriani Builders,
Inc. v. Madden, 389 N.J. Super. 154, 173-74 (App. Div. 2006).
However, we agree with plaintiff that Dr. Kemps' September
28, 2012 report was the first concrete information she received
suggesting that Dr. O'Shea made a mistake in performing the
surgery. None of the other information defendant cites was
reasonably likely to inform either plaintiff or her workers'
compensation attorney that Dr. O'Shea had done anything wrong.
"[W]here a plaintiff knows of an injury, but fault is not
self-evident or implicit in the injury itself, it must be shown
that a reasonable person would have been aware of such fault in
order to bar the plaintiff from invoking the discovery rule."
Martinez v. Cooper Hospital-Univ. Med. Ctr., 163 N.J. 45, 55
(2000). "A discovery rule analysis does not rise or fall on the
personal characteristics of plaintiffs, but on the circumstances
8 A-3269-16T2
in which they find themselves and their responses to those
circumstances." Id. at 56.
In this case, plaintiff was involved in a workers'
compensation case that went on for years. The source of
plaintiff's various medical problems was by no means clear or
self-evident. Dr. O'Shea herself told plaintiff that her
persistent pain could be attributed to the normal healing process.
The insurance company referred plaintiff to many different
doctors, each one trying to determine the cause of her persistent
back pain, leg pain, and other symptoms. Until Dr. Kemps'
September 28, 2012 report, none of the doctors suggested that Dr.
O'Shea was at fault. Plaintiff's expert report supports an
inference that the workers' compensation system itself tended to
obscure the problem, by compartmentalizing plaintiff's care among
many different doctors, none of whom took a holistic or global
view of her health condition.
We also agree with plaintiff that there is no evidence that
defendant would be prejudiced by application of the discovery
rule. See Lopez, 62 N.J. at 275-76. Defendant did not present
any evidence of prejudice through the passage of time. The medical
records themselves document plaintiff's condition before, during
and after the surgery. In her deposition, Dr. O'Shea did not
evince any lack of memory as to pertinent events. Although
9 A-3269-16T2
defendant had not yet served an expert report, fact discovery had
been completed and the case had a trial date, at the time the
court dismissed the complaint.
At this point, the issue is not whether plaintiff has a
meritorious case or whether she is likely to prevail at trial.
The only issue is whether she should have her day in court or
whether her complaint should be barred by the statute of
limitations. We conclude that plaintiff is entitled to the benefit
of the discovery rule. Accordingly, we reverse the orders on
appeal, reinstate the complaint, and remand this case to the trial
court.
Reversed and remanded. We do not retain jurisdiction.
10 A-3269-16T2