June 8, 2021

The Superior Court of New Jersey Appellate Division (“New Jersey Appellate Court”) stated in its May 24, 2021 opinion in a New Jersey medical malpractice case where the plaintiff alleged that the defendants failed to timely diagnose and drain his spinal abscess that led to permanent paralysis from the waist down: “a plaintiff in a personal injury action must file suit within two years after the cause of action has accrued. N.J.S.A. 2A:14-2. In medical and dental malpractice actions, the accrual date is generally the date on which the negligent act or omission occurred … Here, plaintiff alleged that the JCMC defendants drained plaintiff’s abscess on November 13, 2016, but their surgical “intervention proved to be too late as the abscess leaked prior to the drainage and as a result the plaintiff was paralyzed from the waist down” … Thus, the only negligent action plaintiff complained of was the JCMC defendants’ alleged failure “to intervene in a timely fashion.” That cause of action clearly accrued no later than November 13, 2016, and the two-year statute of limitations therefore expired on November 13, 2018, well before plaintiff filed his amended complaint against the JCMC defendants.”

Discovery Rule Did Not Apply

The New Jersey Appellate Court further held that the discovery rule did not apply: “we discern no basis for disturbing Judge Isabella’s conclusion that the discovery rule was simply inapplicable to the facts of this case. Here, plaintiff knew as soon as the surgery was completed that he was paralyzed. He knew the name of the physician who drained the abscess, Dr. El Khashab, and, after his attorney obtained plaintiff’s medical records, he knew the names of all of the other JCMC doctors who treated him during the period between November 11 and November 13, 2016. Yet, plaintiff did not file a complaint against any of the JCMC defendants until February 4, 2019, after the statute of limitations had expired. Because defendant knew the extent of his injury and who at JCMC might have injured him, we agree with Judge Isabella that the discovery rule did not apply in this case.”

Equitable Tolling Did Not Apply

The New Jersey Appellate Court further held: “there was no basis for “equitably tolling” the application of the statute of limitations under the facts of this case. While Dr. El Khashab told plaintiff he should pursue Christ Hospital for not draining his abscess when he first complained of back pain in July 2016, the doctor never told plaintiff that he or JCMC might not also be at fault. In fact, Dr. El Khashab informed plaintiff he was paralyzed as soon as the surgery was over. From the JCMC medical records, plaintiff’s attorney was also able to identify all of the other medical professionals who treated plaintiff at that hospital.”

“Here, Dr. El Khashab did not misrepresent the extent of plaintiff’s condition or exclude his or JCMC’s liability for his paralysis. He merely discussed Christ Hospital’s potential role. Within two months of leaving JCMC, plaintiff had retained an attorney, who investigated the matter by seeking plaintiff’s medical records from JCMC. Thus, Dr. El Khashab’s post-operative statement to plaintiff provided no basis for equitably tolling the statute of limitations.”

Source Blair v. Care Point Health – Christ Hospital, Docket No. A-2066-19.

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