Lead Opinion
The opinion of the Court was delivered by
The issue here is whether a plaintiffs failure to timely file a medical malpractice claim precludes a later wrongful death action arising out of the alleged malpractice.
Dr. Sperling treated plaintiffs wife from the early 1960s until 1985. During that period, Dr. Sperling prescribed a medication for her that allegedly was taken off the market because of adverse side effects. Plaintiffs wife passed away in 1996 without filing a medical malpractice action. Plaintiff filed suit two years later, alleging that improper treatment caused his wife’s death. The Law Division granted summary judgment, Brill v. Guardian Life Ins. Co., 142 N.J. 520, 523,
I.
Giving plaintiff the benefit of all reasonable inferences, Brill, supra, 142 N.J. at 523,
Dr. Walter Sperling treated both plaintiff, Cletis Miller, and his wife, Ann T. Miller, from the early 1960s until 1985. Plaintiff claims that in 1972 Dr. Sperling prescribed birth control medication for Ann called Ovulen 28. She took that medication until 1985. According to plaintiff, however, Dr. Sperling did not tell Ann that the prescription was for a birth control medication, but told her that it was a tranquilizer for her nerves. He did not tell either Ann or her husband the true nature of the prescription until an office visit in 1985. The Millers left the office and never spoke
Plaintiff and Ann attempted, unsuccessfully, to have Dr. Sperling criminally prosecuted. They also tried to retain an attorney to sue Dr. Sperling, but were unable to do so. Despite those efforts, neither plaintiff nor his wife initiated an action for malpractice or any other claim against Dr. Sperling during Ann’s lifetime.
On March 30,1996, Ann died at the age of sixty-six. Her death certificate states that she died of a suspected acute myocardial infarction accompanied by chronic interstitial lung disease. Dr. Sperling died in 1997. His wife, Coletta, who served as executrix of his estate, also died during the pendency of this appeal.
On March 17, 1998, thirteen days before the expiration of the two-year statute of limitations for a wrongful death claim, plaintiff filed a handwritten pro se complaint against the estate of Dr. Sperling. The complaint stated that Dr. Sperling’s improper prescription of Ovulen 28 proximately caused Ann’s myocardial infarction, leading to her death. Thus, the complaint sounded in survivorship, medical malpractice, and wrongful death.
As noted, plaintiff states that his wife took Ovulen 28 from 1972 until 1985. The pharmacy records submitted by him in discovery demonstrate only that Ovulen 28 was prescribed from 1974 to 1976. Defendant maintains that Dr. Sperling last prescribed the drug for plaintiffs wife in 1976. The estate’s attorney represents that Dr. Sperling’s office records for Ann Miller were discarded long before the complaint was filed. We do note that there was a suggestion by plaintiffs attorney at oral argument that medical
Before the Law Division, defendant argued that plaintiff’s claims were barred because he failed to comply with the two-year statute of limitations that governs medical malpractice claims, N.J.S.A. 2A:14-2. The Law Division, citing Baird v. American Optics, 155 N.J. 54, 66,
Plaintiff appealed and retained present counsel after filing a pro se brief before the Appellate Division. Although not raised in the Appellate Division brief, plaintiffs counsel addressed the wrongful death claim at oral argument before that court. Counsel contended that the two-year wrongful death statute of limitations, N.J.S.A 2A:31-3, governed plaintiffs claim that Dr. Sperling’s conduct contributed to decedent’s death in 1996. Because plaintiff filed that claim within two years of Ann’s death, counsel asserted it was timely filed. Although noting that it could disregard that claim because it was not raised below, the Appellate Division nonetheless decided to address the issue “in the interest of justice.” Miller, supra, 326 N.J.Super. at 578,
The Appellate Division affirmed the grant of summary judgment concluding that “even though [the wrongful death] claim did not ripen or ‘accrue’ until plaintiffs wife died, decedent’s failure to bring a personal injury action before the statute of limitation[s] expired barred the action due to the death claim’s derivative nature.” Id. at 578,
Finally, the Appellate Division determined that the application of Knabe to this case obviated the need for the court to reach defendant’s contention that the Affidavit of Merit statute, N.J.S.A. 2A:53A-27, applied and also required dismissal of the complaint. Miller, supra, 326 N.J.Super. at 583,
This Court granted certification, 163 N.J. 397,
II.
The view widely embraced at English common law was that, in the words of Lord Ellenborough, “in a civil court, the death of a human being could not be complained of as an injury.” Baker v. Bolton, 170 Eng. Rep. 1033 (K.B.1808). Many American courts followed the English common-law trend and resisted wrongful death claims because judges generally believed that such claims would improperly require them “to judicially calculate the value of human life; ... would lead to endless cases with large verdicts; that ... human life is sacred and it would be revolting to compensate its loss with money; and that it is impossible to calculate the pecuniary value of human life.” Farley v. Sartin, 195 W.Va. 671,
New Jersey’s Wrongful Death statute has spawned five decisions that bear on this case. The first is Knabe v. Hudson Bus Transp. Co., supra, 111 N.J.L. 333,
A. Knabe
In Knabe, an injury befell the decedent on January 12, 1927, and he died on July 3, 1930. An action was commenced under the
[If DJecedent lingered for twenty years and made no move, his representative could then assert a right of action to recover for an injury forgotten by every one but the injured, who had slept on his rights for twenty years. Such could not have been the legislative intention.
[Coulter, supra, 11 N.J. Misc. at 7, 163 A 661.]
Based on that understanding, Knabe determined that the Act required a viable personal injury claim at the time of death in order for decedent’s representative to maintain a wrongful death cause of action. Knabe did not, however, base that conclusion on the statutory language of the Wrongful Death Act, but, rather, relied solely upon the Coulter view of the legislative intent. Knabe, supra, 111 N.J.L. at 334-35, 168 A. 418.
B. Graf and Lawlor
Knabe prevailed for the next thirty years until a subtle modification occurred in Graf v. Taggert, supra, 43 N.J. 303,
The issue in Graf was whether the parents of a stillborn child, who suffered injuries while in the mother’s womb, could recover under the Death Act. Graf, supra, 43 N.J. at 304,
Lawlor reached the same conclusion. Lawlor, supra, 56 N.J. 326,
Graf and Lawlor thus shifted' the focus from speculation about the Legislature’s intent to the language of the Act itself, which
C. Alfone and Silverman
That view was embraced by the Appellate Division in Alfone v. Sarno, supra, 168 N.J.Super. 315,
The continued validity in this jurisdiction of the derivative-dependent character of the [wrongful-death] cause of action is most questionable in light of [di ]ictum in the unanimous opinion of our Supreme Court in Lawlor.
The Supreme Court’s reference to the “persuasive position” of the many out-of-state cases, contrary to the Knabe view, which hold that “the statutory terminology ‘relates to the character of the injury, without regal'd to the question of time of suit or death,’ ” though dictum, convinces us that Knabe has been discredited and would not now be followed by the Supreme Court. We therefore accept the view that the statutory terminology means nothing more than that where a person has been injured by a tortious act which later causes his death, the beneficiaries under the wrongful death act have a separate and independent light to action, qualified only by the strong policy against the recovery of duplicate damages.
[Alfone, supra, 168 N.J.Super. at 325, 327-28,403 A.2d 9 (citations omitted).]
The Alfone panel thus anticipated a ruling by this Court overturning Knabe. Upon review, however, the Court allowed the
Although the Alfone decision appeared to resolve the issue, the facts differ from the matter before us because the Alfone decedent pursued a malpractice case to judgment prior to her death. Id. at 102,
Silverman v. Lathrop, supra, 168 N.J.Super, at 340,
In so doing, Silverman set aside concerns about requiring defendants to litigate stale claims and recognized that wrongful-death actions serve a different purpose than malpractice actions. Silverman concluded that the statutory language at issue referred to the character of the injury, not to timing of the injury or decedent’s attempts at redress.
III.
“As a general rule of statutory construction, we look first to the language of the statute.” State v. Butler, 89 N.J. 220, 226,
When the death of a person is caused by a wrongful act, neglect or default, such as would, if death had not ensued, have entitled the person injured to maintain an action for damages resulting from the injury, the person who would have been liable in damages for the injury if death had not ensued shall be liable.
[N.J.S.A. 2A:31-1.]
We are also guided by the principle that the Act is remedial in nature, and thus “is to be liberally construed.” Turon v. J. & L. Construction Co., 8 N.J. 543, 558,
Defendant’s interpretation also conflicts with the Act’s statute of limitations, which provides that “[e]very 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. That section gives a plaintiff two years from the date of death in which to file a wrongful death action. Defendant’s interpretation would subvert that explicit language, as a plaintiff would only have two years from the date of the injury in which to file suit. Silverman, supra, 168 N.J.Super. at 341,
Finally, the Knabe rule creates an unacceptable paradox. Under that rule, a wrongful death claim could effectively be time-barred before the death itself. Speiser, Wrongful Death and Injury, § 11:10 (1999). For example, a person critically injured on January 1, 1998 would have until January 1, 2000 to file a personal injury action. If that hypothetical victim passed away on January 1, 2001 "without filing such an action, Knabe would bar the wrongful death claim. Thus, the failure to file a personal injury claim by January 1, 2000 would bar the wrongful death claim,
After Knabe originated the derivative-dependent theory, Graf, Lawlor, Alfone, and Silverman all attempted to not only refocus the issue on the actual statutory language, which Knabe had not explicitly addressed, but also to avoid the harsh results of the Knabe rule. For the reasons we have discussed, we concur with those efforts and overrule Knabe. Our view is in accord with the national trend.
[T]he considerable majority of the courts have held that the statute runs against the death action only from the date of death, even though at that time the decedent’s own action would have been barred while he [or she] was living. Only a few courts hold that it runs from the time of the original injury, and consequently that the death action may be lost before it ever has accrued.
[Prosser & Keeton, supra at 957 (footnotes omitted).]
Similarly, “in the great majority of jurisdictions which have considered the question, the limitation period applicable to a cause of action for wrongful death — whether contained in the statute creating the cause of action or in general statutes of limitation — begins to run from the date of death.” Speiser, Wrongful Death and Injury, § 11:10 (1999); see also Richardson v. Knud Hansen Mem’l Hosp.,
Commentators also endorse the majority view. Prosser states:
It is not at all clear ... that such provisions of the death acts ever were intended to prevent recovery where the deceased once had a cause of action, but it has terminated before his death. The more reasonable interpretation would seem to be that they are directed at the necessity of some original tort on the part of the defendant, under circumstances giving rise to liability in the first instance, rather than to subsequent changes in the situation affecting only the interest of the decedent.
*385 [Prosser & Keeton, supra at 957.]
Speiser suggests that the argument that “the tortfeasor’s liability ... should be established within a reasonable period of time ... is equally convincing.” Speiser, supra at § 11:10. Nevertheless, he concludes that barring such wrongful death claims is “unjust.” Ibid. It is understandable that some victims may be disinclined to pursue a malpractice action, either because their focus is on survival, or for a host of other reasons, and the heirs then decide to pursue a wrongful death claim after the injured party’s death. Ibid.
We hold that the limitations of N.J.S.A. 2A:31-3 do not speak to jurisdictional or procedural matters that might prevent a decedent from instituting an action at death. Rather, they pertain solely to the character of the injury. Alfone, supra, 87 N.J. at 106-07,
That conclusion does not suggest indifference to principles of repose, stability, and finality. We are mindful that statutes of limitations should provide a party “freedom from the burden of defending stale claims.” Greco v. Valley Fair Enterprises, 105 N.J.Super. 582, 584,
IV.
We do not address the application of the Affidavit of Merit statute, N.J.S.A 2A:53A-27, to plaintiffs claim. Nor do we address any other aspects of this case, either procedural or substantive, other than to note the fragüe nature of plaintiffs claim.
Although proximate cause is generally an issue for the jury, Perez v. Wyeth Laboratories, Inc., 161 N.J. 1, 27,
In summary, we overrule Knabe and reverse the panel below. A claim for wrongful death is independent of a claim for
Reversed and remanded.
Notes
During the course of this litigation, plaintiff has alleged that Dr. Sperling prescribed Ovulen 28 at the behest of his wife's family members, either due to their concerns about her ability to raise children or their desire to reduce the number of potential heirs. Whatever the reason, the gravamen of the pro se allegation is that Dr. Sperling prescribed birth control without the couple's knowledge.
Concurrence Opinion
concurring.
In its careful analysis, the Court correctly concludes that a death action and a malpractice action are independent claims. Thus, plaintiff filed this lawsuit within the limitations period contained in the wrongful death statute. I write separately to emphasize that nothing in the language of that statute prevents the trial court from applying principles of causation and other tenets to this or any similar case.
“Proximate or legal causation is that combination of ‘logic, common sense, justice, policy and precedent’ that fixes a point in a chain of events, some foreseeable and some unforeseeable, beyond which the law will bar recovery.” People Express Airlines, Inc. v. Consol. Rail Corp., 100 N.J. 246, 264,
There is ample precedent in New Jersey authorizing courts to resolve the issue of proximate cause in any case in which reasonable minds could not differ on whether that element of the plaintiffs case has been established. See, e.g.; Caputzal v. The Lindsay Co., 48 N.J. 69, 78-79,
In upholding the summary dismissal of the plaintiffs claim, the Court explained:
We do not believe that a fair-minded jury could find that the lack of security measures was the cause of the fall. The cause of the accident and injuries was the plaintiffs unsuccessful effort to leap this divide. Even when parties have a special relationship to others requiring them to act to prevent foreseeable harm, the issue of proximate cause is always present. See Cowan v. Doering, 111 N.J. 451,545 A.2d 159 (1988) (holding that causation would be issue in case of incompetent patient leaping from hospital window).
[Ibid.]
In the present case, Mrs. Miller died on March 30, 1996. Dr. Sperling’s alleged tortious conduct occurred twenty years prior to decedent’s death. According to the undisputed pharmacy logs, Ovulen 28, the drug in question, was prescribed by Dr. Sperling in 1974 and last renewed in 1976, some twenty years before decedent’s death. Other than those logs, which merely confirm the
I do not diminish the distress and sense of sadness that inevitably occur whenever a person loses a spouse or loved one. This may be a rare case in which, given the lack of medical records and unavailability of witnesses, there is no issue capable of legitimate resolution. In a different context, the Appellate Division has observed that “the right to be free of stale claims in time comes to prevail over the right to prosecute them.” DeDisto v. Linden, 80 N.J.Super. 398, 406,
In sum, I agree with the Court that plaintiff filed this action within the limitations period contained in the wrongful death statute. That holding does not, in this or any future ease, preclude a court from determining the legal viability of a plaintiffs claim by applying principles of causation or other traditional tenets.
For reversal and remandment — Chief Justice PORITZ and Justices STEIN, COLEMAN, LONG, VERNIERO, LaVECCHIA and ZAZZALI — 7.
Opposed — None.