A Capehart Scatchard Blog

Discovery Rule Keeps Alive Plaintiff’s Medical Malpractice Case and Respondent’s Lien Rights

By on July 26, 2018 in Key Defenses with 0 Comments

Lynda Ferrari was injured at work falling down steps in April 2006.  She sought treatment for her right knee and lower back.  Dr. Joan O’Shea performed authorized surgery to address Ferrari’s right-sided herniated discs at L4-5 and L5-S1.  Ferrari experienced increased pain following surgery.  She saw multiple physicians after the surgery, seeking relief for her increased pain.

Ferrari filed a medical malpractice law suit on September 29, 2014 against Dr. O’Shea and Virtua Hospital.  The doctor filed an answer in January 2015 asserting that the law suit was barred by the statute of limitations.  Defendant relied on the employer’s IME in the workers’ compensation case performed by Dr. Anton Kemps in 2009.  In that report, Dr. Kemps opined that Ferrari developed arachnoiditis as a result of the surgery.  He provided an estimate of 5% permanent partial disability.  Defendant argued that more than two years expired from the date of Dr. Kemps’ 2009 report and the filing of the civil law suit.  The trial court ruled in favor of defendant and dismissed the case.

Ferrari appealed and argued that the two year limitations period should not have begun to run in 2009.  Both parties agreed that a medical malpractice case must be filed within two years of the accrual date, but New Jersey law makes clear that the cause of action does not accrue until the injured party discovers that he or she has an actionable claim.  Ferrari argued that the 2009 report from Dr. Kemps did not alert her that the surgery was a failure or that Dr. O’Shea may have committed malpractice.  It just said she developed arachnoiditis.

Ferrari maintained that she had no knowledge of potential malpractice until Dr. Kemps wrote another report in September 28, 2012.  In that second report, Dr. Kemps said that there was no indication that Ferrari “had any material placed within her disc spaces to replace the removed disc.”  He added that a review of the operative report did not show that any stabilization device was inserted to replace the removed disc.  There was also some evidence from a 2013 report of Dr. O’Shea that Ferrari experienced an additional herniation at the site of the operation at L4-5.

The Appellate Division disagreed with the trial judge.  “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.”  The Court added, “Until Dr. Kemps’ September 28, 2012 report, none of the doctors suggested that Dr. O’Shea was at fault.”

Based on this analysis, the Appellate Division reversed the dismissal of the civil law suit.  This does not mean that the Court found any evidence of medical malpractice:  it only means that Ferrari will have a chance to prove her medical malpractice case.

The case is interesting because it shows how an IME in a workers’ compensation case for permanency purposes can sometimes create the basis for a medical malpractice claim and indeed start the clock running on the injured worker’s potential civil law suit.  This is one compelling reason why parties need to read IME reports in workers’ compensation very closely.  Sometimes the tendency is to just focus on the overall percentage of disability and potential credits.  But both counsel have to pay close attention to discussions about the effectiveness of surgery.  In this case, the Appellate Division specifically noted that Ferrari’s workers’ compensation attorney would not have been alerted to potential malpractice until he read the September 2012 report.  Moreover, respondent’s lien rights depended on the revival of the medical malpractice law suit, so defense counsel must also be vigilant.  The case underscores why it often does not make sense for workers’ compensation counsel to hold onto IMEs until they get to court at a pretrial hearing.  A report such as this should be sent immediately to opposing counsel, since the Appellate Division in this case concluded that the cause of action accrued the very date of the September 28, 2012 report of Dr. Kemps.

This case can be found at Ferrari v. Joan F. O’Shea, M.D. A-3289-16T2 (App. Div. July 13 2018). We thank our friend Ron Siegel, Esq. for bringing this case to our attention.



About the Author

About the Author:

John H. Geaney, a shareholder and co-chair of Capehart Scatchard's Workers' Compensation department, began an email newsletter entitled Currents in Workers’ Compensation, ADA and FMLA in 2001 in order to keep clients and readers informed on leading developments in these three areas of law. Since that time he has written over 500 newsletter updates.

Mr. Geaney is the author of Geaney’s New Jersey Workers’ Compensation Manual for Practitioners, Adjusters & Employers. The manual is distributed by the New Jersey Institute for Continuing Legal Education (NJICLE). He also authored an ADA and FMLA manual as distributed by NJICLE. If you are interested in purchasing the manual, please contact NJICLE at 732-214-8500 or visit their website at www.njicle.com.

Mr. Geaney represents employers in the defense of workers’ compensation, ADA and FMLA matters. He is a Fellow of the College of Workers’ Compensation Lawyers of the American Bar Association and is certified by the Supreme Court of New Jersey as a workers’ compensation law attorney. He is one of two firm representatives to the National Workers’ Compensation Defense Network. He has served on the Executive Committee of Capehart Scatchard for over ten (10) years.

A graduate of Holy Cross College summa cum laude, Mr. Geaney obtained his law degree from Boston College Law School. He has been named a “Super Lawyer” by his peers and Law and Politics. He serves as Vice President of the Friends of MEND, the fundraising arm of a local charitable organization devoted to promoting affordable housing.

Capehart Scatchard is a full service law firm with offices in Mt. Laurel and Trenton, New Jersey. The firm represents employers and businesses in a wide variety of areas, including workers’ compensation, civil litigation, labor, environmental, business, estates and governmental affairs.


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