                        NOT FOR PUBLICATION WITHOUT THE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-3269-16T2

LYNDA FERRARI,

        Plaintiff-Appellant,

v.

JOAN F. O'SHEA, M.D.,

        Defendant-Respondent,

and

VIRTUAL WEST JERSEY HOSPITAL,

     Defendant.
_____________________________

              Argued May 8, 2018 – Decided July 13, 2018

              Before Judges Reisner and Hoffman.

              On appeal from Superior Court of New Jersey,
              Law Division, Camden County, Docket No.
              L-3731-14.

              Sherri L. Warfel argued the cause for
              appellant (Stark & Stark, attorneys; Sherri
              L. Warfel, of counsel; Alex J. Fajardo, on the
              brief).

              Thomas M. Walsh argued the cause for
              respondent (Parker McCay, PA, attorneys;
              Thomas M. Walsh and Mary Kay Wysocki, of
              counsel; Kathryn A. Somerset, on the brief).
PER CURIAM

     Plaintiff Lynda Ferrari appeals from a February 3, 2017 order,

dismissing her medical malpractice claim against Dr. Joan F. O'Shea

on statute of limitations grounds.         Plaintiff also appeals from a

March 20, 2017 order denying her motion for reconsideration.1

Because we conclude plaintiff was entitled to the benefit of the

discovery rule, we reverse the orders on appeal and remand the

case to the trial court.

                                   I

     We briefly summarize the facts relevant to our disposition.

In April 2006, plaintiff fell down some steps at her place of

employment, and injured her right knee and lower back.                 She

received   treatment   for   her   injuries    through   her   employer's

workers' compensation plan.    On July 23, 2008, Dr. O'Shea, to whom

plaintiff was referred by the compensation carrier, performed

surgery to address plaintiff's right-sided herniated discs at L4-

L5 and L5-S-1.

     The surgery did not alleviate plaintiff's pain and she began

to develop additional physical problems.        According to plaintiff,


1
   The court dismissed plaintiff's complaint against co-defendant
Virtua-West Jersey Health System, Inc. (improperly impleaded as
Virtual West Jersey Hospital), by order of August 21, 2015.
Plaintiff did not appeal from that order, and the co-defendant is
not participating in this appeal.

                                       2                          A-3269-16T2
when she told Dr. O'Shea that she was still in pain, Dr. O'Shea

assured her that "it's going to take time to heal, and it will

subside."   Thereafter, plaintiff went to one workers' compensation

doctor after another, seeking treatment for her persistent pain.

None of them criticized the treatment Dr. O'Shea had provided,

until Dr. Anton Kemps issued a report in September 2012.

     According to her complaint, filed on September 29, 2014,

plaintiff   first    learned   that   Dr.   O'Shea   may   have   committed

malpractice, when plaintiff received a September 28, 2012 report

from Dr. Kemps, stating that there was no indication that plaintiff

"had any material placed within her disc spaces to replace the

removed disc."      Dr. Kemps stated that the absence of replacement

material made plaintiff vulnerable to develop new herniations.

According to the complaint, a review of Dr. O'Shea's operative

report did not show that any stabilization device was inserted to

replace the removed disc.      In her deposition testimony, plaintiff

confirmed that she first learned that Dr. O'Shea may have done

something wrong, when she found out about Dr. Kemps' September 28,

2012 report.

     Defendant filed an answer in January 2015, pleading the

statute of limitations, among other defenses.          In February 2015,

the case was stayed for ninety days to allow plaintiff to retain

new counsel, due to the untimely death of her attorney.               After

                                      3                             A-3269-16T2
plaintiff    obtained   new      counsel,      the     parties    completed        fact

discovery, including plaintiff's deposition on July 14, 2016.

During the deposition, defendant's counsel reminded plaintiff's

counsel that "there is a statute of limitations issue in this

case. And it's a significant one."              Defendant filed a motion to

dismiss on statute of limitations grounds on December 29, 2016.

       The summary judgment record includes Dr. Kemps' September 28,

2012 report.    It also includes a note from Dr. O'Shea, confirming

that plaintiff's "L4-5 recurrent disc herniation . . . does come

under the Workman's Compensation accident of April 29, 2006."                       The

note   is   dated   April   4,   2012,       however    the   correct       date   was

apparently April 4, 2013, because the note refers to information

taken from Dr. O'Shea's "last note . . . from February 28, 2013."

The February 28, 2013 note also confirms the presence of an

additional    herniation    at    L4-5,      attributable        to   the   original

workers' compensation covered accident.                 In other words, viewed

most favorably to plaintiff, Dr. O'Shea admitted in her notes that

plaintiff experienced an additional herniation at the site of the

operation.

       In granting defendant's motion, the trial court relied on a

January 29, 2009 report from Dr. Kemps to the workers' compensation

carrier, in which Dr. Kemps noted that plaintiff had developed

"arachnoiditis."     The trial court also relied on an April 23, 2009

                                         4                                    A-3269-16T2
letter from plaintiff's workers' compensation attorney written to

his adversary in the compensation case.           The letter referred to

Dr.   Kemps'     report,    noting   that    plaintiff     had     developed

arachnoiditis as a result of the surgery and asking that the

insurer provide plaintiff continued medical coverage for that

condition.2

      Dr. Kemps' 2009 report stated that, according to Dr. O'Shea's

notes,   an    August   2008   follow-up    MRI   had   revealed   "minimal

enhancement of nerve roots of the L4-5 level consistent with

arachnoiditis."3        Dr. Kemps recommended a "five percent (5%)

increase" in plaintiff's "partial total disability of the lumbar

spine referable to surgical repair of disc herniations in the low

lumbar area."     There is no testimony or evidence, however, that

Dr. Kemps' opinion would alert either a workers' compensation

attorney, or a layperson such as plaintiff, that the surgery was

a failure or that Dr. O'Shea had committed malpractice.              To the

contrary, Dr. Kemps' evaluation was that the arachnoiditis was of

minimal significance, only warranting a five percent increase in




2
   In Dr. O'Shea's deposition, she explained that arachnoiditis
was "clumping of the nerve roots within the thecal sac."
3
   Dr. O'Shea's notes are in the summary judgment record.   She
found some arachnoiditis, but on re-examination, found that the
arachnoiditis had gone away.

                                     5                               A-3269-16T2
plaintiff's partial total disability for workers' compensation

purposes.

       In denying plaintiff's reconsideration motion, the trial

court relied on a March 6, 2012 evaluation by Dr. Goldstein,

another workers' compensation doctor.               Dr. Goldstein stated that

"the operation did not help the patient, and as she recalls, it

made things worse."          The judge also rejected plaintiff's argument

that defendant waived the statute of limitations defense through

delay in asserting it.

                                          II

       The trial court treated defendant's dismissal motion as one

for    summary   judgment.       Accordingly,       our     review    is   de     novo,

employing the same standard as the trial court.                    See Townsend v.

Pierre,    221   N.J.   36,     59   (2015)     (citing      Davis    v.   Brickman

Landscaping, Ltd., 219 N.J. 395, 405 (2014)). We review the denial

of a reconsideration motion for abuse of discretion. Pitney Bowes

Bank, Inc. v. ABC Caging Fulfullment, 440 N.J. Super. 378, 382

(App. Div. 2015).

       A medical malpractice claim must be filed within two years

of the accrual date, which is usually the date of the negligent

act.     Szczuvelek v. Harborside Healthcare Woods Edge, 182 N.J.

275, 281 (2005).        In an appropriate case, however, "a cause of

action    will   be   held    not    to    accrue   until    the     injured      party

                                           6                                    A-3269-16T2
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."                Ibid. (alteration in original)

(quoting Lopez v. Swyer, 62 N.J. 267, 273 (1973)).

       The goal of the discovery rule is to "avoid [the] harsh

results that otherwise would flow from mechanical application of

a statute of limitations."         Kendall v. Hoffman-La Roche, Inc., 209

N.J. 173, 191 (2012) (alteration in original) (quoting Caravaggio

v.   D'Agostini,     166   N.J.   237,     245      (2001)).    The   standard     is

"basically an objective one—whether plaintiff knew or should have

known of sufficient facts to start the statute of limitations

running."      Caravaggio, 166 N.J. at 246 (quoting Baird v. Am. Med.

Optics, 155 N.J. 54, 72 (1998)).             In applying the rule, the court

must   also    consider     "whether     the     delay   may   be   said   to   have

peculiarly or unusually prejudiced the defendant."                  Lopez, 62 N.J.

at 275-76.

       Plaintiff presents the following arguments on this appeal:

              I. THE COURT ERRED IN DETERMINING THAT
              PLAINTIFF SHOULD HAVE KNOWN THAT DEFENDANT'S
              SURGERY WAS A DEVIATION FROM THE STANDARD OF
              CARE BECAUSE HER LAWYER AUTHORED A LETTER THAT
              CLAIMED SHE HAD A PERMANENT BACK INJURY

              II. THE COURT ERRED IN FAILING TO CONSIDER
              THAT THE DEFENDANT WAS NOT PREJUDICED BY
              PROPER APPLICATION OF THE DISCOVERY RULE



                                         7                                  A-3269-16T2
           III. THE COURT ERRED IN FAILING TO CONSIDER
           THAT THE DEFENDANT WAIVED THE STATUTE OF
           LIMITATIONS DEFENSE BY LITIGATING THE CASE
           THROUGH COMPLETION OF DISCOVERY TO THE EVE
           [OF] TRIAL

     Plaintiff's third point is without merit. Defendant timely

asserted the statute of limitations in its answer.        Further,

defendant needed to conduct discovery in order to develop evidence

in support of the motion, and defense counsel reminded plaintiff's

counsel of the defense during discovery.    See Cipriani Builders,

Inc. v. Madden, 389 N.J. Super. 154, 173-74 (App. Div. 2006).

     However, we agree with plaintiff that Dr. Kemps' September

28, 2012 report was the first concrete information she received

suggesting that Dr. O'Shea made a mistake in performing the

surgery.     None of the other information defendant cites was

reasonably likely to inform either plaintiff or her workers'

compensation attorney that Dr. O'Shea had done anything wrong.

     "[W]here 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."

Martinez v. Cooper Hospital-Univ. Med. Ctr., 163 N.J. 45, 55

(2000).    "A discovery rule analysis does not rise or fall on the

personal characteristics of plaintiffs, but on the circumstances



                                 8                         A-3269-16T2
in    which    they    find    themselves       and    their   responses        to     those

circumstances."         Id. at 56.

       In     this     case,    plaintiff       was    involved      in    a    workers'

compensation         case   that   went    on    for    years.       The       source       of

plaintiff's various medical problems was by no means clear or

self-evident.           Dr.    O'Shea     herself      told    plaintiff       that       her

persistent pain could be attributed to the normal healing process.

The    insurance       company     referred      plaintiff      to   many      different

doctors, each one trying to determine the cause of her persistent

back    pain,    leg    pain,    and    other    symptoms.        Until     Dr.       Kemps'

September 28, 2012 report, none of the doctors suggested that Dr.

O'Shea was at fault.               Plaintiff's expert report supports an

inference that the workers' compensation system itself tended to

obscure the problem, by compartmentalizing plaintiff's care among

many different doctors, none of whom took a holistic or global

view of her health condition.

       We also agree with plaintiff that there is no evidence that

defendant would be prejudiced by application of the discovery

rule.       See Lopez, 62 N.J. at 275-76.              Defendant did not present

any evidence of prejudice through the passage of time. The medical

records themselves document plaintiff's condition before, during

and after the surgery.             In her deposition, Dr. O'Shea did not

evince any lack of memory as to pertinent events.                               Although

                                            9                                        A-3269-16T2
defendant had not yet served an expert report, fact discovery had

been completed and the case had a trial date, at the time the

court dismissed the complaint.

     At this point, the issue is not whether plaintiff has a

meritorious case or whether she is likely to prevail at trial.

The only issue is whether she should have her day in court or

whether   her   complaint   should   be   barred   by   the   statute    of

limitations. We conclude that plaintiff is entitled to the benefit

of the discovery rule.      Accordingly, we reverse the orders on

appeal, reinstate the complaint, and remand this case to the trial

court.

     Reversed and remanded.     We do not retain jurisdiction.




                                 10                               A-3269-16T2
