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LaFage v. Jani2/22/2001
Argued September 11, 2000
On appeal from the Superior Court, Law Division, Salem County.
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 (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 t
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