JOSEPHINE GRINDLINGER VS. JONATHAN M. ABENAIM, D.M.D. (L-5697-15, MIDDLESEX COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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.

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