LaFage v. Jani

• Citation: 766 A.2d 1066,166 N.J. 412
• Decision Date: 22 February 2001
• Docket Number: No. 1 through No. 6,1 through No. 6
• Parties: Carmella R. LaFAGE, individually; Carmella R. LaFage, as Executrix of the Estate of Richard A. LaFage, deceased, Plaintiff, v. Devendra JANI, M.D.; Diana Mathias, R.N.; Diane Klein, R.N.; Karen Martin, R.N.; John Hobson, R.N.; D.L. Seals, R.N. and Victoria Mills, R.N.; Defendants-Appellants and Cross-Respondents, and Jane Doe, R.N. being a name/names fictitious , Defendants, v. Angelo J. Falciani, PA and Angelo J. Falciani, Esquire, Intervenors-Respondents and Cross Appellants.
• Court: New Jersey Supreme Court

766 A.2d 1066

166 N.J. 412

Carmella R. LaFAGE, individually; Carmella R. LaFage, as Executrix of the Estate of Richard A. LaFage, deceased, Plaintiff, v. Devendra JANI, M.D.; Diana Mathias, R.N.; Diane Klein, R.N.; Karen Martin, R.N.; John Hobson, R.N.; D.L. Seals, R.N. and Victoria Mills, R.N.; Defendants-Appellants and Cross-Respondents, and Jane Doe, R.N. being a name/names fictitious (No. ), Defendants, v. Angelo J. Falciani, PA and Angelo J. Falciani, Esquire, Intervenors-Respondents and Cross Appellants.

Supreme Court of New Jersey.

Argued September 11, 2000.

Decided February 22, 2001.

Timothy P. O'Brien, Pleasantville, argued the cause for appellants and cross-respondents Diana Mathias, R.N.; Diane Klein, R.N.; Karen Martin, R.N.; John Hobson, R.N.; D.L. Seals, R.N.; Victoria Mills, R.N.; (Paarz, Master, Koernig, Crammer, O'Brien, Bishop & Horn, attorneys; Mr. O'Brien and Mary Ann C. O'Brien, on the letter briefs).

Stacy L. Moore, Jr., Marlton, argued the cause for appellant and cross-respondent Devendra Jani, M.D. (Parker McCay & Criscuolo, attorneys).

William J. Martin, Westwood, argued the cause for intervenors-respondents and cross-appellants (Martin, Gunn & Martin, attorneys).

The opinion of the Court was delivered by COLEMAN, J.

This is a medical malpractice-wrongful death case. The critical issue raised is whether our Wrongful Death Act, N.J.S.A. 2A:31-1 to -6, permits equitable tolling of its two-year statute of limitations for minors whose wrongful death claims were filed twenty-seven days late. The trial court held that the Wrongful Death Act permits such tolling. The Appellate Division declined to intervene on an interlocutory basis. We granted leave to appeal and hold that the Wrongful Death Act may be equitably tolled for minors. We do not reach the issue whether our discovery rule applies to Wrongful Death Act claims.

I.

Richard LaFage went to the Salem Hospital on March 6, 1995, complaining of extreme pain in his right shoulder and chest. The hospital diagnosed a pulled muscle and prescribed Percocet and other medication before sending him home. The next day, LaFage visited Dr. Salem, who also diagnosed a pulled muscle and prescribed medication, but LaFage continued to experience severe pain. LaFage returned to the hospital later that morning and was again diagnosed as suffering from a muscle pull. A nurse on duty told LaFage's wife that muscle pulls are painful and that LaFage was getting treatment for the pull. Later that day Mrs. LaFage gave the nurse a cup of LaFage's phlegm and asked why a muscle pull would cause the production of such phlegm. The nurse explained that phlegm sometimes resulted from the medication LaFage was taking, but that she would contact the doctor. That night LaFage's condition worsened, and he was transferred to the University of Pennsylvania Hospital where he was placed on a life-support system. He died two days later, on March 8, 1995.

LaFage is survived by his wife, Carmella LaFage, and three minor children between the ages of four and eight. Mrs. LaFage was three-months pregnant at the time of her husband's death. A few days after his death, Mrs. LaFage's father contacted Angelo Falciani, an attorney, regarding a possible malpractice suit. Mrs. LaFage met with Falciani on several occasions and was under the impression that he would handle the case and file a lawsuit on her behalf. In her testimony given during a Lopez discovery hearing, Lopez v. Swyer, 62 N.J. 267, 300 A.2d 563 (1973), Mrs. LaFage stated that she felt that the doctors, including defendant Dr. Devendra Jani, were negligent at the Salem Hospital. When asked why her father spoke to a lawyer, she responded that he did so because she thought that her husband had not received proper care and that her husband died as a result of somebody's negligence.

In addition to speaking to Falciani around March 13, 1995, Mrs. LaFage spoke with her cousin, Dr. Romano, on March 22, 1995. Dr. Romano informed her that he believed that she had an overwhelming case of malpractice against all of the health care providers, including the nurses, and explained why he thought the case was so strong.

A wrongful death and survivorship complaint was filed by Falciani on April 4, 1997, two years and twenty seven days after LaFage's death on March 8, 1995. In opposition to a motion to dismiss the complaint because it was filed more than two years after the date of death, Falciani argued that the statute of limitations should not commence to run until June 29, 1995, the date on which he received LaFage's autopsy report. The autopsy report indicated that the cause of death was a massive bacterial infection of unknown origin in LaFage's chest cavity. Falciani discussed the matter with many doctors, some of whom believed that medical malpractice existed, others of whom did not.

In response to Dr. Jani's motion to dismiss the complaint based on the statute of limitations, Falciani moved to intervene because he was now facing a legal malpractice claim. The trial court granted his application.

The trial court ultimately decided that the discovery rule could be applied to Wrongful Death Act claims. Based on evidence produced during the Lopez hearing, however, the trial court held that, even applying the discovery rule, the two-year statute of limitations barred Mrs. LaFage's wrongful death claim. The court found that although LaFage died on March 8, 1995, under the discovery rule the two years did not begin to run until March 22, 1995, when Mrs. LaFage spoke to Dr. Romano, who confirmed that malpractice was committed by all the health care providers. Thus, the trial court held that although the discovery rule applied under the reasoning of Negron v. Llarena, 156 N.J. 296, 716 A.2d 1158 (1998), Mrs. LaFage's wrongful death and survival claims against all defendants were barred because her April 4, 1997, complaint was filed more than two years after the causes of action accrued on March 22, 1995.

Concerning the wrongful death claims of LaFage's children, the trial court held that although there is no statutory tolling for minors pursuant to the Wrongful Death Act, Negron permits equitable tolling until the minors reach their eighteenth birthdays. The Survival Act claims of the children, however, were barred because those claims belong to the estate and no distinction should be made between the children and the estate. The court reasoned that, notwithstanding the applicability of the discovery rule, the survivorship cause of action accrued on March 22, 1995, and the complaint was filed more than two years thereafter. Consequently, under the trial court's determinations, only the Wrongful Death Act claims on behalf of the minors were not dismissed.

II.

Defendant nurses argue that there should be no tolling under the Wrongful Death Act and that the trial court misapplied Negron, which limited application of equitable principles to the doctrine of substantial compliance, a doctrine not involved in this case. They also maintain that the Wrongful Death Act, which contains a two-year statute of limitations without a tolling provision, reflects a legislative intent not to permit tolling for minors on either a statutory or equitable basis. They draw support from the general tolling statute, N.J.S.A. 2A:14-21, because claims under the Wrongful Death Act are not among the enumerated claims that statutorily permit tolling for minors.

Defendant Dr. Jani contends that the trial court acted inconsistently when it ruled that Mrs. LaFage's wrongful death claims are time-barred but that the wrongful death claims of the children are not. He also argues that the language in both the Wrongful Death Act and the general tolling statute, N.J.S.A. 2A:14-21, explicitly excludes tolling for minors: the former does so by stating that an action is viable only for two years, and the latter does so by listing a number of causes of action for which tolling is permitted, without including Wrongful Death Act claims. He maintains that, unlike tolling pursuant to N.J.S.A. 2A:14-21 of claims for personal injuries covered by N.J.S.A. 2A:14-2 where an injury has been suffered by a minor, the injury involved under the Wrongful Death Act has been suffered by someone other than the minor.

Intervenor Falciani contends that the discovery rule should apply to Wrongful Death Act claims, and that application of that rule requires a finding that the claims of Mrs. LaFage and those of the children were not time-barred. He also argues that minors should have the benefit of equitable tolling of wrongful death claims.

A.

First, we address the contention that Mrs. LaFage's wrongful death claim should be subject to tolling based on a Lopez-type discovery rule. The current discovery rule is based largely on the language in our personal injury statute of limitations, N.J.S.A. 2A:14-2. It provides: "Every action at law for an injury to the person caused by the wrongful act, neglect or default of any person within this state shall be commenced within 2 years next after the cause of any such action shall have accrued." Ibid. (emphasis added). The Wrongful Death Act, in contrast, requires that: "Every action brought under this chapter shall be commenced within 2 years after the death of the decedent, and not thereafter." N.J.S.A. 2A:31-3 (emphasis added). Because we agree with the trial court's assessment of the record and its ultimate conclusion, that even if she could invoke the discovery rule Mrs. LaFage's wrongful death claim was untimely, we decline to address the broader question whether the discovery rule generally should be applicable to Wrongful Death Act claims. Under our discovery rule jurisprudence, she knew she had a basis for a wrongful death-medical malpractice claim, at the latest, on March 22, 1995, when she was so informed by Dr. Romano. The cause of action accrued on that date. The complaint was not filed until April 7, 1997, which was beyond the...