NJ: Duty to Conduct a Reasonable Investigation
Brizak v. Needle, 239 N.J. Super. 415, 571 A.2d 975 (1990)
Student Contributor: Maninder (Meena) Saini
NJ Underlying Statute of Limitations and Duty to Investigate
Facts: Plaintiff-client commenced a malpractice lawsuit against defendant-attorney, alleging the defendant was negligent by failing to file a medical malpractice claim before the expiration of the statute of limitations (“SOL”). The defendant argued the SOL did not start until there was expert opinion recognizing that medical malpractice had occurred. The facts are as followed: In 1981, plaintiff sustained an arm injury and was treated by Dr. Shafi. Instead of conducting surgery, the doctor simply placed her arm in a hanging cast. On December 5, 1983, plaintiff retained defendant to pursue an action against Dr. Shafi because she was still suffering from the affects of her arm injury. In May 1984, the defendant requested a copy of the hospital records. Next, in March 1985, the defendant obtained an opinion from a radiologist who advised defendant that no malpractice transpired. In June 1987, defendant obtained another medical expert opinion that held malpractice had occurred.
Issue: When does the “discovery” rule apply in any given case?
Ruling: The “discovery rule” tolls the statute of limitations when one “is either unaware that he has sustained an injury, or although aware that an injury has occurred, he does not know that it is, or may be, attributable to the fault of another.” When one knows or has reason to know of the injury, the SOL starts to run.
Issue: What is the scope of a lawyer's duty to investigate the basis of a client’s claim?
Ruling: An attorney must undertake a reasonably diligent investigation to determine if there is a basis for commencing an action and when the statute of limitation starts to run.
The appellate court stated the “[d]efendant’s clearly erroneous advice to plaintiff that she need not be concerned about the time limitations until she found a physician to support her claim was itself a sufficient basis for linking his negligence to her failure to commence a timely action against the doctor.” The SOL started in December 1983 when the plaintiff had suspicion of the malpractice and retained a lawyer.
Lesson: The defendant was not diligent in his investigation of the medical malpractice nor of the ascertaining the date the cause of action accrued in order to determine the correct statute of limitations. . An attorney has a duty to take any steps reasonably necessary to properly handle the case which includes the duty to investigate and to file any action necessary for recovery within the applicable time period.
Moreover, said the Court:
...[the] attorney who litigates a legal malpractice claim without the opinion testimony of a legal expert unnecessarily exposes his client to a serious risk...
I agree that the SOL should begin to run when the injury becomes known. It is unfair to expect a person to be bound by the SOL when one has no reason to know that one is going to have cause for suit. The SOL is meant to help from an evidentiary standpoint, that the injury is not too tenuous at the point the suit is brought. When the injury is first known, chances are evidence is going to spring from that occurrence as well as the original date where injury was unknown so it will not be too tenuous.
I was surprised when I read that the defendant argued the SOL did not start until there was expert opinion recognizing that medical malpractice had occurred. If this were the case then it would defeat the purpose of having a statute of limitations because plaintiffs could wait to find an expert that agrees with them and postpone filing their suit which would cause a great delay in out court system. I think the court made it clear that the statute of limitations begins to run when the individual knows or has reason to know that there is the potential malpractice.