                                NOT FOR PUBLICATION WITHOUT THE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 NOS. A-3894-17T1
                                                                     A-4078-17T1

SALVATORE H. DIDIO,

          Plaintiff-Appellant,

v.

ORTHOPAEDIC AND SPORTS
MEDICINE, LLP, and DR. YAIR
D. KISSIN, M.D.,

          Defendants,

and

KRISTY SAWICKI, P.A.,

     Defendant-Respondent.
_____________________________

SALVATORE H. DIDIO,

          Plaintiff-Respondent,

v.

ORTHOPAEDIC AND SPORTS
MEDICINE, LLP, and DR. YAIR
D. KISSIN, M.D.,
      Defendants,

and

KRISTY SAWICKI, P.A.,

     Defendant-Appellant.
_____________________________

            Submitted February 26, 2019 – Decided March 22, 2019

            Before Judges Hoffman and Suter.

            On appeal from Superior Court of New Jersey, Law
            Division, Bergen County, Docket No. L-8030-15.

            Donna H. Clancy, attorney for appellant Salvatore H.
            Didio in A-3894-17 and respondent Salvatore H. Didio
            in A-4078-17.

            Rosenberg Jacobs Heller & Fleming, PC, attorneys for
            respondent Kristy Sawicki, P.A. in A-3894-17 and
            appellant Kristy Sawicki, P.A. in A-4078-17 (Douglas
            F. Ciolek, of counsel and on the briefs).

PER CURIAM

      In this medical negligence action, plaintiff Salvatore H. Didio appeals

from the April 6, 2018 Law Division order dismissing his complaint against

defendant Kristy Sawicki, P.A., a physician's assistant (P.A.), on the basis that




                                                                         A-3894-17T1
                                       2
it was filed after the statute of limitations had run. 1 Plaintiff contends the motion

judge erred in determining the accrual date of his cause of action and in failing

to conduct a Lopez2 hearing. Defendant appeals from an earlier trial court order

restoring plaintiff's complaint and reopening discovery.3 We affirm the order

dismissing plaintiff's complaint, and dismiss defendant's appeal as moot.

                                          I

       We review the pertinent facts. On August 28, 2013, plaintiff received Gel

One shots into his knees from defendant, to "relieve some of the pain in [his]

knee making it easier for him to walk" during an upcoming vacation. Defendant

began by cleaning plaintiff's right knee with alcohol. She then removed a pen

from her jacket pocket, causing plaintiff to ask, "What are you going to do with

that pen? Are you going to write on my knee?" Defendant responded that she



1
  Plaintiff's complaint also named Orthopaedic and Sports Medicine, LLP and
Dr. Yair D. Kissin, M.D. as defendants. Since the claims against those
defendants were previously dismissed, and plaintiff does not challenge their
dismissal, we refer to P.A. Sawicki as defendant.
2
    Lopez v. Swyer, 62 N.J. 267 (1973).
3
  Since the parties' appeals were scheduled back-to-back on the same calendar,
we consolidate them for purposes of this opinion. Defendant's brief states she
withdraws her appeal as moot if this court affirms the order dismissing plaintiff's
complaint.


                                                                              A-3894-17T1
                                          3
was going to press the pen in a closed position to make an indentation, marking

the spot where she would make the injection. Plaintiff's wife inquired about the

use of an imaging machine during the administration of the injection, and

defendant stated it was unnecessary. After defendant made the indentation with

the pen, she administered the injection. At his deposition, plaintiff stated he did

not feel "anything except for the needle going in."

      Defendant then followed the same procedure and administered an

injection into plaintiff's left knee; however, this time plaintiff "felt pain" and

"the gel going around the joint." Plaintiff asked defendant "why [he] felt the

fluid going in, the gel going around [his] knee, and [why he] did not experien ce

that with the right knee." At their depositions, plaintiff and his wife both stated

that defendant said nothing in response to the question.

      Plaintiff was able to arrive and leave the office without any assistance.

Later that evening, however, plaintiff's "right knee started swelling up and

started to get pain in it." Plaintiff at first "thought that [it] was normal" because

defendant "told [him] it would stiffen up," "[b]ut by the next day it was

unbearable."

      On August 30, 2013, plaintiff returned to defendant's office on crutches

because he could not put weight on his swollen right knee. Dr. Kissin removed


                                                                             A-3894-17T1
                                         4
80 cc's of liquid from the knee, and stated that it looked like blood. According

to plaintiff, Dr. Kissin stated that the removal of fluid "should alleviate the pain,

[and he] should have no more problems." At this time, plaintiff "asked why [the

knee] was so red[,] and [defendant] said she may have nicked a vein when she

gave [p]laintiff the shot." Plaintiff's wife again mentioned the imaging machine,

thinking that it would have avoided such a problem; in response, defendant

stated "they don't use it in this office."

      Over Labor Day weekend (August 31 to September 2, 2013), plaintiff and

his wife considered going to the emergency room because of continuing pain;

however, Dr. Kissin advised against it. According to plaintiff, "He was afraid

of them giving me an infection."             On September 3, plaintiff returned to

defendant's office "in severe pain, his knee was very swollen again, and he

could[ not] put any pressure on it or walk on it." Dr. Kissin removed another 80

cc's of fluid from the knee, and this time "a creamy," "cloudy," and "milky"

color was extracted. Dr. Kissin stated that it could be an infection, which would

require surgery to have it "washed out." The specimen was sent to Quest

Diagnostics for testing.

      Seeking a second opinion, plaintiff went to Dr. Gregory Montalbano's

office on September 4.        Dr. Montalbano's associate, Dr. Daniel Savino,


                                                                             A-3894-17T1
                                             5
apparently received "some results" from Quest "showing that it was already a

possible septic staph infection." The next day, plaintiff returned to see Dr.

Montalbano, who "was able to retrieve more of the results and told [plaintiff]

that [he] would definitely need . . .         surgery to clear the infection."   Dr.

Montalbano performed the surgery that Friday, September 6, 2013. Plaintiff

remained in the hospital for the next five days. Since "the infection was very

severe and the [first surgery] didn't help enough," plaintiff underwent a second

surgery on September 20, 2013, and remained in the hospital for another five

days.

        In their depositions, plaintiff and his wife stated that none of the doctors

involved speculated as to the cause of plaintiff's infection. However, they both

stated that they thought it was caused by defendant's injection of the gel shot.

During her deposition, plaintiff's wife stated that plaintiff "had gotten a severe

infection from the way that the shot was administered . . . ." The following

colloquy then occurred:

              Q.    Did any of your husband's treating physicians tell
                    you that his infection was from the gel shot
                    initiated by [defendant]?

              A.    I don't recall.




                                                                            A-3894-17T1
                                          6
            Q.    Okay. What information, if any, do you have for
                  stating that his severe infection was from her
                  injection?

            A.    Just from general knowledge, to know that you
                  should not have something taken out of your
                  pocket and put on someone else's skin that you're
                  administering a shot to.

            Q.    Okay. This is your general knowledge?

            A.    Yes.

                  ....

            Q.    Would it be fair to say that back when you saw
                  Dr. Kissin on September 3[], 2013, you were
                  thinking that this issue your husband was having
                  was from the gel injection?

            A.    Yes.

            Q.    Did you have that discussion with your husband
                  at that time, that you thought that his issue on
                  September 3[], 2013, [was] due to the gel shot?

            A.    Yes.

      On September 9, 2015, plaintiff filed the malpractice action under review,

claiming that defendant "failed to properly administer" the Gel One shot into his

right knee, causing it to become inflamed, and require surgery.

      Following oral argument, the motion judge granted defendant's motion for

summary judgment, dismissing plaintiff's complaint on the basis that his claim


                                                                         A-3894-17T1
                                       7
was barred by the statute of limitations. The judge found that during the initial

procedure, plaintiff questioned "defendant's use of [the] pen to make a mark on

the sterilized knee[,] and [he] was aware that she had done that with an unsterile

instrument."   Plaintiff soon experienced "excruciating pain," returned to

defendant's office multiple times, and

            continued to suffer problems [when] on . . . September
            3[] milky fluid was removed. He was aware on or
            before September 3[] that there was a possible infection
            and . . . on September 4[] . . . . he saw Dr. Montalbano's
            associate, Dr. Savino, [who] informed . . . plaintiff that
            it was a possible staph infection . . . .

                  ....

            [O]n the date of the procedure . . . plaintiff suspected
            that what . . . [defendant] was doing was not correct.
            And combined with the immediacy of the infection I do
            find that the statute started to run not later than
            September 3[] . . . .

                                         II

      A two-year statute of limitations applies to claims for personal injuries.

N.J.S.A. 2A:14-2; Giannakopoulos v. Mid State Mall, 438 N.J. Super. 595, 610,

(App. Div. 2014). A cause of action for medical malpractice generally accrues

on the date of the alleged negligent act or omission. Szczuvelek v. Harborside

Healthcare Woods Edge, 182 N.J. 275, 281 (2005).



                                                                          A-3894-17T1
                                         8
      Statutes of limitations create repose and are "practical and pragmatic

devices to spare the courts from litigation of stale claims, and the citizen from

being put to his [or her] defense after memories have faded, witnesses have died

or disappeared, and evidence has been lost." Fox v. Millman, 210 N.J. 401, 415,

(2012) (quoting Chase Sec. Corp. v. Donaldson, 325 U.S. 304, 314 (1945)).

When the statute of limitations expires before a plaintiff "[knows] or [has]

reason to know that he [or she] has a cause of action against an identifiable

defendant . . . the considerations of individual justice and the considerations of

repose are in conflict and other factors may fairly be brought into play." Farrell

v. Votator Div. of Chemetron Corp., 62 N.J. 111, 115 (1973).

      To accommodate those considerations, our Supreme Court adopted the

discovery rule.    Fernandi v. Strully, 35 N.J. 434, 450 (1961); see also

Szczuvelek, 182 N.J. at 281; Graves v. Church & Dwight Co., 115 N.J. 256, 257

(1989). The discovery rule postpones accrual of a cause of action until "the

injured party discovers, or by an exercise of reasonable diligence and

intelligence should have discovered that he [or she] may have a basis for an

actionable claim." Szczuvelek, 182 N.J. at 281 (alteration in original) (quoting

Lopez, 62 N.J. at 272 (internal quotation marks omitted)); see also Caravaggio

v. D'Agostini, 166 N.J. 237, 246 (2001) ("The question in a discovery rule case


                                                                          A-3894-17T1
                                        9
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.").

      When determining whether the injured party had knowledge of fault, the

law does not require that the person have a provable claim or even that the person

be aware of facts to suggest that fault is "probable," rather all that is required is

that the person be aware of facts which suggest the "possibility" of wrongdoing.

Savage v. Old Bridge-Sayreville Med. Group, PA, 134 N.J. 41, 248 (1993).

             [K]nowledge 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.

             [Ibid.]

      Here, plaintiff and his wife had suspicions regarding defendant's care

during the injection, as plaintiff questioned her on pressing the unsterile pen

onto his sterilized knee, while plaintiff's wife suggested the use of an imaging

machine during the administration of the injection. Plaintiff experienced severe

pain as early as the evening of the day he received the shot. Two days later,

defendant stated that she "may have nicked a vein" in plaintiff's knee. After

removing 80 cc's of liquid from the knee that day, Dr. Kissin stated it should


                                                                             A-3894-17T1
                                        10
alleviate the pain, with no more problems. However, later that evening and

throughout the weekend, plaintiff continued to suffer severe pain, and

considered going to the emergency room.

      On September 3, after removing another 80 cc's from the knee – this time

revealing "milky," "creamy," and "cloudy" liquid – Dr. Kissin stated it could be

an infection, which would require surgery to wash it out. The next day, plaintiff

visited Dr. Montalbano's office, and learned it was a possible septic staph

infection. Dr. Montalbano saw the knee on September 5, and determined that a

washout surgery was needed – the first surgery taking place September 6.

      Significantly, plaintiff's wife stated in her deposition that she and plaintiff

discussed that they thought plaintiff's problems were caused by the gel shot

"before [they] saw Dr. Montalbano" on September 4. On September 5, Dr.

Montalbano concluded that plaintiff needed surgery. It is therefore clear that

plaintiff and his wife were aware of material facts relating to the existence and

origin of his injuries by September 3, and certainly no later than September 5,

significantly before the September 9 filing of plaintiff's complaint two years

later. Since we reach this conclusion while accepting everything plaintiff and

his wife said at their depositions as true, and while reviewing the record in a

light most favorable to plaintiff, we reject plaintiff's contention that the trial


                                                                             A-3894-17T1
                                        11
court erred in declining to conduct a Lopez hearing. See Lopez, 62 N.J. at 275

(holding that "[w]here credibility is not involved" in resolving application of the

discovery rule, "affidavits, with or without depositions, may suffice").

      To the extent not specifically addressed here, plaintiff's remaining

arguments are without sufficient merit to warrant discussion in a written

opinion. R. 2:11-3(e)(1)(E).

      The trial court's summary judgment order is affirmed. Defendant's appeal

is dismissed as moot.




                                                                           A-3894-17T1
                                       12
