NOT FOR PUBLICATION WITHOUT THE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-4057-16T1
JOSEPHINE GRINDLINGER,
Plaintiff-Appellant,
v.
JONATHAN M. ABENAIM, D.M.D.,
Defendant-Respondent.
______________________________
Argued May 30, 2018 – Decided July 13, 2018
Before Judges Manahan and Suter.
On appeal from Superior Court of New Jersey,
Law Division, Middlesex County, Docket No. L-
5697-15.
Michael J. Lunga argued the cause for
appellant.
Stephen H. Schechner argued the cause for
respondent (Schechner Marcus LLP, attorneys;
Stephen H. Schechner, on the brief).
PER CURIAM
Plaintiff Josephine Grindlinger appeals from an order
dismissing her dental malpractice complaint against defendant Dr.
Joseph M. Abenaim, D.M.D., on statute of limitations grounds. We
affirm.
The facts underlying this appeal are straightforward. We
recite those facts in a light most favorable to plaintiff.
Grindlinger was a patient of Dr. Abenaim. The doctor performed
oral surgery on Grindlinger. The surgery included the extraction
of teeth and the placement of numerous dental implants along with
a bridge. The surgery and related dental treatment took place
over a period of almost three years between July 2008 and May
2011.
In July 2013, Grindlinger saw Dr. Howard Spielman, D.D.S.,
on a complaint of mouth pain. The records of Dr. Spielman
indicated that the pain emanated from an area of Grinlinger's
mouth where Dr. Abenaim placed the implants. Dr. Spielman noted
upon his examination that there was swelling in the area of the
implants. The doctor prescribed antibiotics and referred
Grindlinger to Dr. Robert E. Weiner, D.M.D., a prosthodontist,1
for an evaluation.
1
According to "The American College of Prosthodontists,"
prosthodontics is a dental specialty recognized by the American
Dental Association. The practice pertains to, among other areas,
the diagnosis and treatment of clinical conditions associated with
missing or deficient teeth. A prosthodontist is trained in dental
implants. About ACP: Mission & Purpose, AM. COLL. OF
PROSTHODONTISTS, https://www.prosthodontics.org/about-acp/ (last
visited June 25, 2018).
2 A-4057-16T1
Dr. Weiner examined Grindlinger on August 9, 2013. According
to the health questionnaire completed by Grindlinger, her reason
for seeking medical treatment from Dr. Weiner was "implants."
Grindlinger also complained of bleeding and constant pain along
with sensitivity to "heat, cold, sweets and chewing."
After Dr. Weiner advised Grindlinger that one implant was the
cause of her pain, the implant was removed. Dr. Weiner advised
Grindlinger in November 2013, that other implants would also need
to be removed. After learning of the need for additional dental
work and the cost associated with that work, Grindlinger sought a
second opinion from Dr. Steven L. Greenbaum, D.M.D. in February
2014. After his examination, Dr. Greenbaum informed Grindlinger
that there was possible negligence by Dr. Abenaim.
After discovery, Dr. Abenaim filed a motion seeking dismissal
of the complaint based upon the statute of limitations. 2 In
granting the motion, the trial court, after reciting the arguments
raised by the parties, held:
It is clear by the records of various
dentists and by the plaintiff's own deposition
that she was aware, or at least should've been
aware, of defendant's neglect by at least
2
In opposition to the motion, Grindlinger submitted a
certification stating that it was only during the treatment by Dr.
Greenbaum that "any possible negligence of Dr. Abenaim first
arose." Although the motion was not filed as one for summary
judgment, we treat the motion as one brought pursuant to Rule
4:46-2 for purposes of our standard of review.
3 A-4057-16T1
August of 2013[,] which is outside the two-
year statute of limitations.
It should be noted that the plaintiff
cites Rule 4:46-1 to claim that defendant has
not complied with the court rules and
defendant has not filed a motion for summary
judgment under that rule. I do not find that
the cite to [Rule] 4:46-1 is proper and the
facts and dates are clear and a Lopez[3] hearing
is not required.
As such, I'm going to grant the
defendant's motion.
On appeal, Grindlinger argues that it was error to dismiss
the complaint on statute of limitations grounds. Grindlinger also
argues that procedural infirmities relating to the non-provision
of a separate statement of undisputed facts by movant precluded
the trial court from making an informed decision on the motion.
We review a grant of summary judgment de novo, observing the
same standard as the trial court. Townsend v. Pierre, 221 N.J.
36, 59 (2015). Summary judgment should be granted only if the
record demonstrates there is "no genuine issue as to any material
fact challenged and that the moving party is entitled to a judgment
or order as a matter of law." R. 4:46-2(c). We consider "whether
the competent evidential materials presented, when viewed in the
light most favorable to the non-moving party, are sufficient to
permit a rational factfinder to resolve the alleged disputed issue
3
Lopez v. Swyer, 62 N.J. 267 (1973).
4 A-4057-16T1
in favor of the non-moving party." Davis v. Brickman Landscaping,
Ltd., 219 N.J. 395, 406 (2014) (quoting Brill v. Guardian Life
Ins. Co. of Am., 142 N.J. 520, 540 (1995)). If no genuine issue
of material fact exists, the inquiry then turns to "whether the
trial court correctly interpreted the law." DepoLink Court
Reporting & Litig. Support Servs. v. Rochman, 430 N.J. Super. 325,
333 (App. Div. 2013) (quoting Massachi v. AHL Servs., Inc., 396
N.J. Super. 486, 494 (App. Div. 2007)).
Medical malpractice actions must be commenced within two
years after the cause of action has accrued. N.J.S.A. 2A:14-2(a).
In order to prevent the sometimes harsh result of a mechanical
application of the statute of limitations, this court has adopted
the discovery rule. Martinez v. Cooper Hosp.-Univ. Med. Ctr., 163
N.J. 45, 52 (2000) (citing Vispisiano v. Ashland Chem. Co., 107
N.J. 416, 426 (1987); Fernandi v. Strully, 35 N.J. 434, 449-50
(1961)).
The discovery rule tolls the statute of limitations when
injured parties reasonably are unaware that they have been injured,
or, although aware of an injury, do not know that the injury is
attributable to the fault of another. See Caravaggio v.
D'Agostini, 166 N.J. 237, 245-46 (2001).
The discovery rule is essentially a rule of equity. Lopez,
62 N.J. at 273. It "provides that in an appropriate case a cause
5 A-4057-16T1
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." Id. at 272.
Although the discovery rule does not require "knowledge of a
specific basis for legal liability or a provable cause of action,"
it does require "knowledge not only of the injury but also that
another is at fault." Martinez, 163 N.J. at 52 (citations
omitted). "To the extent that fault is not self-evident or
obviously revealed by the injury itself, the judicial search into
an aggrieved party's knowledge of possible fault must be . . .
exacting." Savage v. Old Bridge-Sayreville Med. Grp., PA, 134
N.J. 241, 247-48 (1993) (quoting Lynch v. Rubacky, 85 N.J. 65, 74
(1981)). A cause of action does not accrue until both of those
factors exist. Martinez, 163 N.J. at 53.
In many cases, knowledge of fault is acquired simultaneously
with knowledge of injury. Fault is apparent for example, where
the wrong tooth is extracted during surgery, or a foreign object
has been left within the body after an operation. In other cases,
however, a plaintiff may be aware of an injury, but not aware that
the injury is attributable to the fault of another. Id. at 53-
54.
6 A-4057-16T1
However, where 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.
Id. at 55.
The question in a discovery rule case is whether the facts
presented would alert a reasonable person, exercising ordinary
diligence, that he or she was injured due to the fault of another.
The standard is basically an objective one — whether plaintiff
"knew or should have known" of sufficient facts to start the
statute of limitations running. That does not mean that the
statute of limitations is tolled until a plaintiff has knowledge
of a specific basis for legal liability or a cause of action that
is provable. It does, however, require knowledge not only of the
injury but also that another is at fault. Both are critical
elements in determining whether the discovery rule applies. See
Caravaggio, 166 N.J. at 246; Savage, 134 N.J. at 248.
In this matter, the defining issue concerns when plaintiff
should have known that she had a basis for an action. The trial
court found, at the latest, plaintiff knew or should have known
that the dental implants were problematic by August 22, 2013; a
date more than two years earlier than the September 15, 2015 filing
date.
7 A-4057-16T1
The trial court concluded that because Grindlinger was aware
that she was injured and should have been aware of Dr. Abenaim's
"neglect" as of August 2013, summary judgment was appropriate.
The trial court based its finding on a review of relevant medical
records and "plaintiff's own deposition."
As noted, the critical considerations in determining the
application of the discovery rule are Grindlinger's knowledge of
injury and her knowledge of fault. Martinez, 163 N.J. at 52.
Stated otherwise, should Grindlinger, as a reasonable person
exercising ordinary diligence, have discovered she was injured due
to the fault of Dr. Abenaim more than two years prior to the
expiration of the statute of limitations? On the record before
us, we conclude that the answer to that query is in the
affirmative.
First, there can be no dispute that Grindlinger was aware of
an "injury" to her mouth when she saw Dr. Spielman. Her complaints
of pain and swelling were consistent with injury to her mouth in
the area of the implants. While the etiology of the injury may
have been uncertain then, by the time she sought treatment from
Dr. Weiner, she was aware of the etiology, i.e., the "implants"
as she noted in the health questionnaire. It is further without
dispute that Grindlinger knew Dr. Abenaim performed the implants.
8 A-4057-16T1
As such, as of August 2013, we are satisfied that Grindlinger had
knowledge of injury.
We next turn to the "fault" prong. In Savage, the court
addressed this prong in terms of "possibility" that another
person's conduct caused the injury.
"Fault" in the context of the discovery
rule is simply that it is possible — not
provable or even probable — that a third
person's conduct that caused the injury was
itself unreasonable or lacking in due care.
In other words, knowledge of fault does not
mean knowledge of a basis for legal liability
or a provable cause of action; knowledge of
fault denotes only facts suggesting the
possibility of wrongdoing. Thus, knowledge
of fault for purposes of the discovery rule
has a circumscribed meaning: it requires only
the awareness 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, 134 N.J. at 248 (emphasis in
original).]
Here, by virtue of her initial treatment by Dr. Weiner,
Grindlinger knew of her "injury," reasonably should have known it
was related to the implants, and reasonably could conclude that
Dr. Abenaim's conduct may have caused the injury. It follows that
it was therefore implicit, if not evident, that Dr. Abenaim's
conduct was "possibly" unreasonable or lacking in due care, even
though not "provable or even probable." Ibid.
9 A-4057-16T1
As such, we conclude that the statute of limitations for
commencing the action accrued as of August 22, 2013. We further
conclude that Grindlinger's remaining argument lacks sufficient
merit to warrant discussion in a written opinion. R. 2:11-
3(e)(1)(E).
Affirmed.
10 A-4057-16T1