Plaintiff brought a medical malpractice lawsuit against Dr. Muenzen alleging he failed to properly diagnose and treat her late husband Robert's prostate cancer. It was disputed whether Dr. Muenzen informed Robert that blood tests in 2007 showed an elevated PSA level indicative of cancer. Robert was ultimately diagnosed with prostate cancer in 2009 and died in 2011. The trial court dismissed one count of the complaint but allowed claims for Robert's pain/suffering and plaintiff's loss of consortium to proceed, finding they were not time-barred under the state's Survivor Act since the lawsuit was filed within two years of Robert's death. However, the appellate panel reversed, finding that interpreting the Survivor Act in this way would invalidate other

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Warren v. Muenzen
MEDICAL MALPRACTICE
New Jersey Law Journal
December 15, 2016
No. A-1949-15T4
Dec. 7, 2016 (Date Decided)
Judge Messano
FOR APPELLANTS: William L. Brennan (The Law Office of William L. Brennan, attorneys; Mr.
Brennan, of counsel and on the briefs; John Kilbride and Abbey True Harris, on the briefs).
FOR RSPONDENTS: John J. Ratkowitz (Starr, Gern, Davison & Rubin, P.C., attorneys; Mr.
Ratkowitz, of counsel and on the briefs; Robert C. Sanfilippo, on the briefs).
Plaintiff brought suit, individually and as executrix of the estate of her late husband, Robert Warren,
alleging defendant Christopher P. Muenzen, M.D., was medically negligent.
In 2007, Robert was seen by defendant. Blood samples revealed Robert's PSA3 level was 15.4,
indicative of prostate cancer. It is disputed whether defendant conveyed that information to Robert.
In September 2009, Robert's PSA reading was 1244.88. Defendant diagnosed Robert with prostate
cancer. Robert died on Sept. 27, 2011.
Plaintiff filed suit on Jan. 18, 2013. In counts one and two, plaintiff sought pecuniary damages on
behalf of her husband's estate under the Wrongful Death Act. In count three, plaintiff sought
damages for Robert's pain, suffering, medical expenses and lost earnings. In count four, she
sought damages for loss of consortium. In count five, plaintiff sought damages for severe emotional
distress.
Defendant moved for summary judgment, arguing that counts three, four and five were barred by
the two-year statute of limitations for medical malpractice claims. The motion was granted as to
count five but denied as to counts three and four.
Plaintiff argued the plain language of theSurvivor Act meant her claim was timely because it was
filed within two years of Robert's death. The judge rejected that contention but found that the
statute does not require the executor to bring suit within the original two-year limitation of time.
Because Robert had a cognizable cause of action for medical negligence that was not time-barred
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2. when he died, plaintiff's Survivor Act claims filed within two years of Robert's death survived
dismissal.
The appellate panel disagreed with the motion judge's interpretation. The motion judge reasoned
that plaintiff had a potential cause of action if, at the time of his death, Robert had a cause of action
"if he had lived." The judge further reasoned that a 2009 Amendment defined a new statute of
limitations and plaintiff had two years after Robert's death to bring suit. The judge's construction
nullifies existing statutes of limitation in other statutes. The judge's construction also expands the
Legislature's express, limited purpose for enacting the 2009 Amendment, which was only to
eliminate any statute of limitation for a Survivor Act claim where the death resulted from murder,
manslaughter or aggravated manslaughter.
The panel reversed the order under review and remanded to the Law Division to enter an order
dismissing counts three and four of the complaint with prejudice because they are time-barred.
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