In its opinion filed on December 7, 2016, the Superior Court of New Jersey Appellate Division (“Appellate Court”) held that the trial court should have granted summary judgment to the medical malpractice defendant where the plaintiff failed to file the survival action within the two-year statute of limitations applicable to the survival claim.
The Underlying Alleged Facts
The plaintiff’s husband visited his primary care physician in 2007, complaining of migraine headaches. As part of the medical workup, blood samples were taken and sent for testing, which showed his PSA level was 15.4, significantly higher than normal, which was indicative of prostate cancer. It was disputed whether the physician conveyed the significance of the PSA level to the plaintiff’s husband at this time.
In September 2009, the husband’s complaints of groin pain caused him to visit his primary care physician again. At that time, his PSA level was 1244.88. Following a third examination in October, 2009, the primary care physician diagnosed him with prostate cancer, which was later confirmed by biopsy. Over the next two years, despite chemotherapy and other treatment, the cancer progressed and metastasized to the man’s brain and spine. He died on September 27, 2011 as a result of complications from the cancer.
The man’s wife filed her New Jersey medical malpractice case against her husband’s primary care physician on January 18, 2013. Included in her New Jersey medical malpractice complaint were counts seeking damages for her husband’s pain, suffering, medical expenses and lost earnings while alive; damages for her loss of consortium during her husband’s life; and, damages for the severe emotional distress she suffered from witnessing the effects of her husband’s illness.
The New Jersey medical malpractice defendant filed a motion for summary judgment as to those counts, arguing that those counts were barred by the two-year statute of limitations applicable to medical malpractice claims. The trial court granted the defendant’s motion for summary judgment as to the plaintiff’s count seeking damages for the severe emotional distress she suffered from witnessing the effects of her husband’s illness, but denied the motion as to the other two counts, reasoning, in part: “When one reads the [Survivor Act] as a whole, it seems clear . . . that what the [L]egislature intended is that the decedent must have a cause of action that is not barred by the statute of limitations when he dies. If the person dies with a claim not time-barred, then from the date of death, the administrator or executor has the extended two years from the date of death to file survival actions … “
The defendant subsequently moved to appeal, which was granted by the Appellate Court.
The Appellate Court’s Decision
The Appellate Court stated that unlike a wrongful death action, which is a derivative action arising in favor of beneficiaries named under that act and provides to decedent’s heirs a right of recovery for pecuniary damages for their direct losses as a result of their relative’s death due to the tortious conduct of another, the Survivor Act preserves to the decedent’s estate any personal cause of action that the decedent would have had if he or she had survived.
The Wrongful Death Act contains a statute of limitations, with some exceptions not relevant to this case: every action brought under this chapter shall be commenced within two years after the death of the decedent, and not thereafter.
In 2009, the New Jersey Legislature established a statute of limitations for survival actions (there was no statute of limitations for survival actions before the 2009 amendment): “Every action brought under this chapter shall be commenced within two years after the death of the decedent, and not thereafter, provided, however, that if the death resulted from murder, aggravated manslaughter or manslaughter for which the defendant has been convicted, found not guilty by reason of insanity or adjudicated delinquent, the action may be brought at any time.”
The Appellate Court held that the New Jersey Legislature’s purpose for enacting the 2009 amendment was not to establish a new two-year statute of limitations that commenced upon death for all claims brought under the Survivor Act, but rather to eliminate any statute of limitations that already existed for a Survivor Act claim in certain, limited situations.
The Appellate Court stated that the trial court’s construction of the 2009 amendment effectively extends the statute of limitations applicable to numerous causes of action, not themselves dependent on death, based solely upon the happenstance of death within the limitations period. Such an interpretation does not serve the well-recognized purposes of every statute of limitations, namely to reduce uncertainty concerning the timeliness of a cause of action.
The Appellate Court remanded the matter to the trial court to enter an order dismissing with prejudice the two counts of the plaintiff’s medical malpractice complaint that it had allowed because they are time-barred.
Source Warren v. Muenzen
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