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

By Michael Zerres

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. . . .”

The Appellate Division recognized that under existing case law preceding the 2009 amendment to the Survival Act, Survival Act claims, and Wrongful Death claims were “separate cause[s] of action, [each] with its own statute of limitations. . . .” Under that line of cases, a Survival Act claim was time-barred if the underlying statute of limitations for the decedent’s claim, while they were alive, had already expired at the time of their death. That did not impact the Wrongful Death claim though, which could still be pursued until the expiration of the two-year statute of limitations identified in the Wrongful Death Act. The Appellate Division ultimately held that, “[n]othing in the legislative history of the 2009 Amendment suggests the Legislature intended” to change that. Therefore, the pre-2009 Amendment line of cases holding that the statute of limitations applicable to a cause of action underlying the Survival Act, even if it’s different than the Wrongful Death time period, are still valid law.

The only extension of the statute of limitations applicable to a cause of action underlying the Survival Act claim comes from N.J.S.A. 2A:14-23.1 which states that no statute of limitations, “shall apply to bar a cause of action surviving the decedent’s death sooner than 6 months after death.” N.J.S.A. 2A:14-23.1 goes on to similarly prevent the statute of limitations from barring any claim where it would have expired less than six months after the decedent’s death, for six months following the decedent’s death.

So, in this case the Court found that the 1/18/13 was timely as to the wrongful death claim, but was not timely as to the Survival claim.

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