CLARIFICATION ON THE STATUTE OF LIMITATIONS FOR “SURVIVAL” CLAIMS – WARREN V. MUENZEN, 448 N.J. SUPER. 52, (SUPER. CT. APP. DIV. 2016)DECEMBER 7, 2016).
In this case, decedent’s wife filed suit approximately fifteen (15) months after his death alleging that the decedent’s primary care doctor failed to diagnose prostate cancer in 2007, and as a result, he was not diagnosed until October 2009. By that point, the cancer had metastasized to his brain and spine. On September 27, 2011 the patient died. On January 18, 2013 suit was filed alleging, in part, (1) wrongful death; (2) a survival action.
The trial judge denied a motion for summary judgment as to the Survival Act claim based on his conclusion that those claims were not time barred because “”Robert had a cognizable cause of action against defendant for medical negligence that was not time-barred when Robert died in September 2011. The rationale espoused by the trial judge was that, “[i]f the person dies with a claim not time-barred, then from the date of death, the administrator or executor has the extended two years from the date of death to file survival actions. . . .”