NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-1109-24
JACQUELINE GALAYDA,
Plaintiff-Respondent,
and
MARK GALAYDA,
Plaintiff,
v.
IMANI JACKSON ROSARIO, M.D. and UNIVERSITY UROLOGY ASSOCIATES OF NEW JERSEY,
Defendants-Appellants/ Cross-Respondents,
TROY SUKKARIEH, M.D. and ALEXANDER KIRSHENBAUM, M.D.,
Defendants-Respondents/ Cross-Appellants,
and NEW JERSEY UROLOGY,
Defendant-Respondent. _________________________________
Argued May 15, 2025 — Decided May 27, 2025
Before Judges Mawla, Natali, and Walcott-Henderson.
On appeal from an interlocutory order of the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-3622-20.
Brion D. McGlinn argued the cause for appellants Imani Jackson Rosario, M.D. and University Urology Associates of New Jersey (Ruprecht Hart Ricciardulli & Sherman, LLP, attorneys; Michael R. Ricciardulli, of counsel and on the briefs; Brion D. McGlinn, on the briefs).
Russell L. Malta argued the cause for appellants Troy Sukkarieh, M.D. and Alexander Kirshenbaum, M.D. (Orlovsky Moody Schaaff Conlon Bedell McGann & Gabrysiak, attorneys; Russell L. Malta, of counsel and on the brief; Erin A. Bedell, on the brief).
Jeffrey E. Strauss argued the cause for respondent Jacqueline Galayda (Strauss Law Offices, attorneys; Jeffrey E. Strauss, of counsel and on the brief).
PER CURIAM
This appeal involves the application of the discovery rule to a claim of
medical malpractice that would otherwise be barred by the statute of limitations.
On leave granted, Dr. Imani Jackson Rosario, University Urology Associates of
A-1109-24 2 New Jersey (University Urology), and Drs. Troy Sukkarieh and Alexander
Kirshenbaum (collectively "defendants") appeal from an October 22, 2024 order
denying their motion for summary judgment, arguing plaintiff Jacqueline
Galayda's complaint was untimely and the court erred by misapplying the
discovery rule. After careful review of the record and application of the
governing legal principles, we affirm.
I.
On September 15, 2016, plaintiff began treatment with defendant Dr.
Rosario, a urologist. Medical notes from that appointment show plaintiff was
experiencing "bright red urine, urgency, frequency, nocturia, flank pain, and
abdominal pain."
Dr. Rosario requested a computed tomography (CT) scan to rule out
kidney stones and renal masses and scheduled a cystoscopy. According to
plaintiff, Dr. Rosario diagnosed her with a blockage in her ureter and eventually
inserted ureter stents, which had to be replaced several times. Dr. Rosario never
diagnosed plaintiff with a bladder issue. In January 2018, plaintiff began
treatment with Drs. Sukkarieh and Kirshenbaum for the same condition. 1 Dr.
1 Drs. Kirshenbaum and Sukkarieh are members of the Central Jersey Urology Associates medical practice. A-1109-24 3 Kirshenbaum changed her ureter stents.
On August 30, 2018, plaintiff went to the emergency room at Jersey Shore
Medical Center complaining of kidney pain. She was examined by Dr. John
Chapman, the on-call urologist, who diagnosed her with kidney failure. Dr.
Chapman's notes from plaintiff's hospital stay reflect that he had "discussed . . .
options with [plaintiff] as well as with Dr. [Avais] Masud of nephrology" and
explained it was possible plaintiff was suffering from a neurogenic bladder "and
that perhaps the ureter stents are not benefiting her in any fashion." That same
day, plaintiff also consulted with Dr. Masud. Following her hospital stay and
on Dr. Chapman's advice, plaintiff returned to her urologist, Dr. Sukkarieh.
Plaintiff was next treated by Drs. Kirshenbaum and Sukkarieh on
September 11, September 21, and October 12, 2018. On September 11, Dr.
Kirshenbaum diagnosed plaintiff with hydronephrosis and end-stage renal
disease, and the office notes stated "[w]e will discuss with her nephrologist the
possibility of coming off dialysis. If so, [she] may benefit from ureteral
reimplantation." By September 21, 2018, Dr. Sukkarieh noted plaintiff "[n]ow
has bilateral nephrostomies[ and w]ants to have bilateral ureteral reimplants,"
but her creatinine had worsened. Dr. Sukkarieh recommended plaintiff "[k]eep
nephrostomies for now," and acknowledged plaintiff "[w]ants to proceed with
A-1109-24 4 robotic assisted laparoscopic bilateral ureteral reimplants." Dr. Sukkarieh's
notes from plaintiff's October 12 appointment also include a diagnosis of
"[h]ydronephrosis with ureteral stricture" and maintained the same
recommendation as noted at her September 21 appointment.
On October 12, 2018, plaintiff sought a second opinion from Dr. Sammy
Elsamra of Robert Wood Johnson Urology Department regarding Dr.
Sukkarieh's recommended treatment of bilateral robotic ureteral reimplants.
There is no dispute that by this time, plaintiff was in renal failure and on dialysis.
Dr. Elsamra discussed the likely diagnosis of neurogenic bladder with her.
According to plaintiff, she informed Dr. Elsamra that his diagnosis was different
from that of Dr. Sukkarieh. Dr. Elsamra's appointment notes from October 12,
2018 include a diagnosis of "bilateral hydronephrosis due to neurogenic bladder,
unclear if there is ureteral stricture." He recommended scheduling a cystoscopy,
"bilateral retrograde pyelogram and bilateral antegrade nephrostograms to
evaluate for possible ureteral stricture."
On October 29, 2018, Dr. Elsamra performed the cystoscopy, pyelogram,
nephrostogram, and nephrostomy tube exchange procedures. The post-surgical
medical report included a diagnosis of "bilateral hydronephrosis likely due to
bilateral ureteral stricture likely due to neurogenic bladder." On November 7,
A-1109-24 5 2018, at her post-surgical appointment, Dr. Elsamra, advised plaintiff "the
ureters were opened [during the surgery] and that [she] never should have had
stents and that the problem was really just the bladder being a neurogenic
bladder."
Approximately two years later, on October 30, 2020, plaintiff filed a
complaint against defendants, alleging medical malpractice and negligence for
"failing to perform and/or order testing to diagnose [her] actual problems prior
to October 29, 2018, fail[ing] to take actions that would have prevented [her
from] sustaining a neurogenic bladder, and fail[ing] to identify the cause of [her]
symptoms as they worsened despite treatment." Plaintiff further alleged, as a
result of this negligence, she suffered "severe injuries, pain and suffering,
disability, impairment, loss of enjoyment to life, and . . . economic damages
including but not limited to medical bills and expenses, and loss of income for
the rest of [her] life."
Dr. Rosario and University Urology moved for summary judgment. On
May 16, 2022, the motion court denied defendants' summary judgment motion
without prejudice and ordered a Lopez2 hearing to consider the timeliness of
plaintiff's complaint under the discovery rule.
2 Lopez v. Swyer, 62 N.J. 267 (1973). A-1109-24 6 The Lopez hearing commenced on January 31, 2023. Both plaintiff and
her husband testified. Plaintiff acknowledged she had several medical
procedures in which stents were inserted into her ureters and replaced several
times from 2016 to 2018. She testified Dr. Rosario was the first to insert the
ureter stents and had also replaced those stents several times and yet, her
symptoms were not improving, and she "was still having the issues with the
incontinence and . . . pain."
Plaintiff further testified she next treated with Dr. Kirshenbaum beginning
in January 2018. Dr. Kirshenbaum changed the stents and advised that possible
reimplantation of the stents was an option, but she also advised plaintiff to wait
and see how things went. According to plaintiff, neither Drs. Rosario,
Sukkarieh, nor Kirshenbaum ever diagnosed her with a bladder issue.
Plaintiff testified she first heard the term neurogenic bladder from Drs.
Chapman and Masud while a patient at Jersey Shore Medical Center, but Dr.
Chapman "said it could be a possibility. He wasn't sure. He wouldn't know
unless [she] had . . . test[ing] done." Plaintiff denied being advised of or
understanding that anybody had done anything wrong at that time. She testified,
Dr. Chapman "was trying to give [her] his best ideas of what it could be, that
there were other things that . . . could possibly be doing this to [her]." According
A-1109-24 7 to plaintiff, Dr. Masud advised her the stents "might not be benefiting [her] and
that he couldn't be sure."
Plaintiff also testified about her appointment with Dr. Sukkarieh, who
recommended reimplantation surgery, which prompted her to seek a second
opinion. Plaintiff stated she consulted with Dr. Elsamra, who recommended a
cystoscopy to determine the nature of her condition and whether reimplantation
would work. She underwent the cystoscopy procedure and had her post-
operative appointment with Dr. Elsamra on November 7, where he advised it
was her bladder causing her symptoms, not her kidneys, and there was no visible
blockage in either of her ureters.
Following the Lopez hearing, the court issued a thorough written decision
and order denying Dr. Rosario and University Urology's motion for summary
judgment.3 The court relied on plaintiff's testimony "that she always believed
and was told that the problem was with her urethra" as she had seen multiple
"doctors who all replaced her ureters with stents," and when "she saw Dr.
Elsamra in [October 2018,] she didn't know what her condition was because the
3 The court's October 22, 2024 order confirms its determination of Dr. Rosario and University Urology's initial summary judgment motion. Although the record does not show any additional motion having been filed by Drs. Kirshenbaum and Sukkarieh, they nevertheless join on appeal. A-1109-24 8 doctors didn't know what her condition was."
The court reasoned "[t]he facts are quite clear that [plaintiff] was first
advised that there was fault of her prior physicians in ignoring and not
addressing her neurogenic bladder, at the . . . post-operative office visit with Dr.
Elsamra on November 7, 2018." And, while plaintiff learned she was in renal
failure from Dr. Chapman, "she did not know or have reasonable belief that this
was due to the fault of prior doctors as it was all still a process of trying to figure
out what was going on and how best to treat the situation." Further, Dr.
Chapman did not communicate "fault."
The court explained, "it is clear from the medical documentation
submitted that the doctors who treated her were not sure of the diagnosis of
neurogenic bladder . . . until [plaintiff] underwent a number of procedures
including a cystoscopy on October 29, 2018[,] that confirmed the diagnosis."
The court found plaintiff pursued her claim in a reasonable time and within two
years of the date she discovered that her kidney failure may have been caused
by a neurogenic bladder rather than blocked ureters, and denied defendants'
motion.
II.
A-1109-24 9 Our review of a ruling on summary judgment is de novo, applying the
same legal standard as the trial court. Townsend v. Pierre, 221 N.J. 36, 59
(2015). We "review the competent evidential materials submitted by the parties
to identify whether there are genuine issues of material fact and, if not, whether
the moving party is entitled to summary judgment as a matter of law." Bhagat
v. Bhagat, 217 N.J. 22, 38 (2014) (citing Brill v. Guardian Life Ins. Co. of Am.,
142 N.J. 520, 540 (1995)); R. 4:46-2(c).
Under N.J.S.A. 2A:14-2(a), medical malpractice actions must be initiated
within two years of the alleged negligent act. "[T]he purpose of statutes of
limitations is to stimulate litigants to pursue their causes of action diligently and
to 'spare the courts from litigation of stale claims.'" Vispisiano v. Ashland
Chem. Co., 107 N.J. 416, 426 (1987) (quoting Farrell v. Votator Div. of
Chemetron Corp., 61 N.J. 111, 115 (1973)). The statute of limitations does not
run until the injured party is both aware of the injury and that someone else is at
fault, and the plaintiff need not have knowledge of the legal basis of his or her
claim. Martinez v. Cooper Hosp.-Univ. Med. Ctr., 163 N.J. 45, 53 (2000).
However, to avoid a rigid or mechanical application of the statute of limitations,
courts apply the discovery rule, which "is essentially a rule of equity." Id. at 52
(citing Lopez, 62 N.J. at 273).
A-1109-24 10 "The discovery rule prevents the statute of limitations from running when
injured parties reasonably are unaware that they have been injured, or, although
aware of an injury do not know that the injury is attributable to the fault of
another." Ibid. (quoting Baird v. Am. Med. Optics, 155 N.J. 54, 66 (1998)); see
also Savage v. Old Bridge-Sayreville Med. Grp., P.A., 134 N.J. 241, 248 (1993)
(providing discovery will be imputed when an injury has occurred and there
exists the awareness of "facts that would alert a reasonable person exercising
ordinary diligence that a third party's conduct may have caused or contribu ted
to the cause of the injury and that conduct itself might possibly have been
unreasonable or lacking in due care") (emphasis omitted). The court "impute[s]
discovery if the plaintiff is aware of facts that would alert a reasonable person
to the possibility of an actionable claim; medical or legal certainty is not
required." Lapka v. Porter Hayden Co., 162 N.J. 545, 555-56 (2000).
Whether the party was aware of the injury and who caused it is an
objective standard. Martinez, 163 N.J. at 52. A plaintiff seeking to apply the
discovery rule bears the burden of showing that a reasonable person in his or her
position would not have discovered the injury. Kendall v. Hoffman-La Roche,
Inc., 209 N.J. 173, 194 (2012). Knowledge of injury and fault can occur
simultaneously or may occur apart from one another, but the plaintiff must have
A-1109-24 11 knowledge of both for the statute of limitations to begin to run. Martinez, 163
N.J. at 53. "Knowledge of injury plus knowledge of cause" does not equal
"knowledge of fault." Savage, 134 N.J. at 249. Further, knowledge of fault for
the purposes of the discovery rule "requires only the awareness of facts that
would alert a reasonable person exercising ordinary diligence that a third party's
conduct may have caused or contributed to the cause of the injury and that
conduct itself might possibly have been unreasonable or lacking in due care."
Id. at 248 (emphasis in original). "[T]he cause of action does not accrue until
the discovery of the injury or facts suggesting the fault of another person." Id.
at 247 (quoting Tevis v. Tevis, 79 N.J. 422, 432 (1979) (emphasis omitted)).
In Martinez, the ex-wife of a decedent filed a medical malpractice action
against the hospital where decedent, Carl Farrish, had been treated for injuries
he sustained as a result of a brutal assault. 163 N.J. at 49. Her complaint was
filed more than three-and-a-half years after Farrish's death when plaintiff
received an anonymous letter from a member of the hospital's medical staff who
claimed to have observed Farrish waiting approximately six hours for treatment.
Ibid. The Court reasoned the death certificate and a newspaper article detailing
the incident characterized the death as a homicide and plaintiff had no reason to
suspect malpractice on behalf of the hospital at the time, and the Court applied
A-1109-24 12 the discovery rule to toll the statute of limitations and permit plaintiff's
complaint well over two years from decedent's death. Id. at 56-57. The Court
found plaintiff "acted in an objectively reasonable way in connection with
Farrish's death." Id. at 58.
III.
Before us, defendants contend the court incorrectly determined when
plaintiff had notice of an actionable claim under the discovery rule. More
particularly, they maintain plaintiff "was on notice of her cause of action against
Dr. Rosario no later than August 30, 2018, when she consulted with Dr.
Chapman." And, "[a]ny reasonable person, already having been told that the
stents were not providing a benefit to her condition, would only have further
reason to know of the possibility of wrongdoing when a subsequent physician
then reversed the treatment provided by the defendants."
Defendants further contend the court misapplied the discovery rule
because the "limitations period must begin to run when a plaintiff is aware of
facts sufficient to alert a reasonable person to the 'possibility of wrongdoing .'"
Savage, 134 N.J. at 248. They assert plaintiff was sufficiently aware of her
injury in August 2018 for a reasonable person to be on notice of "the possibility
of an actionable claim."
A-1109-24 13 Drs. Sukkarieh and Kirshenbaum raise the same arguments in their appeal,
contending "[d]efinite certainty as to the existence of a cause of action has never
been held to be a requirement or the appropriate standard for accrual under the
discovery rule" and plaintiff "admits that Dr. Chapman explained to her that she
had a high pressure, neurogenic bladder condition that was causing urine to
reflux up into her kidneys, thereby destroying them."
Applying the requisite de novo review, we reject defendants' arguments
plaintiff was on notice of her claim against defendants as of August or October
2018. The motion court properly denied the summary judgment motion.
We next review Dr. Chapman's notes regarding his treatment of plaintiff,
which defendants emphasize supports their contentions. The notes, in pertinent
part state:
I discussed the options with [plaintiff] as well as with Dr. Masud of nephrology. I explained that it is possible [plaintiff] could have a neurogenic bladder that is storing at high pressures and causing severe reflux, and that perhaps the ureter stents are not benefiting her in any fashion. I explained that placing a Foley catheter in the bladder might decompress the bladder and thus drain the kidneys just as effectively as the nephrostomy tubes. However, I explained further that it would be a trial and error to do that first and then to delay placing nephrostomy tubes. Additionally[,] without having definitive information to confirm that there was not obstruction, ultimately Dr. Masud and [plaintiff] and I all collectively agreed that proceeding with the
A-1109-24 14 nephrostomy tubes to be certain the kidneys are adequately drained would be the best step due to the fact that she is essentially in renal failure at this point and dialysis is an impending concern.
[(Emphasis added).]
Defendants maintain as of this visit plaintiff knew her condition was
deteriorating and the ureter stents were not benefiting her in any way, thus, a
reasonable person in plaintiff's position would have known the existence of an
injury and attributed fault to defendants as of August or October 2018. They
also maintain medical certainty is not required, and the court erred in tolling the
statute of limitations until the November 7 date, which would render her
complaint timely under the discovery rule.
Plaintiff admitted during the Lopez hearing, in her August 2018
consultation with Dr. Chapman "it was also mentioned that perhaps . . . I could
have a bladder issue as well as blocked ureters on top of the renal failure."
According to plaintiff, this was the first time a doctor had mentioned the
possibility of a "neurogenic bladder," as well as the possibility her symptoms
stemmed from a bladder issue at all, and she understood "it was a possibility. It
wasn't anything definite[;] that [she] needed more tests."
While plaintiff does not dispute Dr. Chapman's statements "it was possible
[she] was suffering from a neurogenic bladder" and perhaps the ureteral stents
A-1109-24 15 were not benefitting her, there is no support for defendants' contention Dr.
Chapman conveyed there was any problem with the care provided by her treating
doctors, or that a reasonable person in plaintiff's shoes should have known
defendants were at fault for failing to properly diagnose and treat her bladder
condition. Indeed, as of October 2018, plaintiff knew her bladder was blocked
causing a deterioration in her kidney function and knew the stents Dr. Rosario
placed into her ureters were not working. However, there was no suggestion of
fault on the part of any of her medical providers.
Dr. Chapman's hospital notes do not support defendants' contentions.
Instead, they show plaintiff was informed only that it was possible she was
suffering from a neurogenic bladder and perhaps the ureter stents were not
benefiting her in any fashion. Moreover, according to plaintiff, after conveying
this information to her, Dr. Chapman recommended that she return to her
treating doctor for a follow-up. Such a recommendation is hardly indicative of
the fact Dr. Chapman was attributing fault to plaintiff's medical providers, or
that a reasonable person in plaintiff's position would have understood that her
treating doctors were at fault for failing to properly diagnose and treat her
medical condition.
We are satisfied plaintiff acted with reasonable diligence in asserting her
A-1109-24 16 medical malpractice claims within two years of learning that she had a
neurogenic bladder condition instead of a blocked ureter problem, which
occurred at her post-surgical visit with Dr. Elsamra. Prior to November 7, 2018,
plaintiff had no basis to conclude that she had been misdiagnosed, or that her
treating doctors were at fault.
Moreover, we note although plaintiff knew her kidney condition had
deteriorated and her kidneys were failing as of her emergency room visit with
Dr. Chapman, defendants continued to recommend stent reimplantation,
suggesting that her complex medical issue remained with her ureters. Indeed,
prior to the August consultation with Dr. Chapman, plaintiff had been
consistently treated for the same kidney condition by several different doctors,
thereby suggesting she may not have been responding to the treatments, and not
that she had been misdiagnosed. As plaintiff argues, "[w]hat was unknown to
her, until she was told by Dr. Elsamra, after the diagnostic operation, is that the
care provided by Drs. Rosario, . . . Kirshenbaum[,] and . . . Sukkarieh was not
only unnecessary but misguided[,] and . . . ignore[ed] the developing bladder
condition that caused the damage to her kidneys."
We further reject defendants' contention we are bound by the court's
factual findings plaintiff had knowledge of her neurogenic bladder condition as
A-1109-24 17 early as her August 2018 hospital consultation with Dr. Chapman. Dr.
Chapman's own hospital notes provide insight into his impressions and
discussions with plaintiff, which do not support the court's finding plaintiff had
"knowledge of her neurogenic bladder." In fact, Dr. Chapman diagnosed her
with kidney failure and explained it was possible plaintiff was suffering from a
neurogenic bladder. We need not rely on this finding, particularly given our de
novo standard of review.
Rather, as the record shows, it was not until November 7, 2018 that
plaintiff learned from Dr. Elsamra that her ureters were not blocked, she should
never have had ureteral stents, and was diagnosed with a neurogenic bladder.
Accordingly, plaintiff did not know and could not have known defendants had
failed to diagnose and treat her neurogenic bladder until that date. Thus, the
statute of limitations did not begin to run until that date. Under the discovery
rule, the issue is whether a reasonable person in plaintiff's position would be on
notice she had a cause of action against defendants—whether she knew of the
injury and had reason to believe defendants were at fault. Martinez, 163 N.J. at
52.
Applying this standard, we conclude plaintiff acted with reasonable
diligence in filing her malpractice action within two years of learning of the
A-1109-24 18 potential fault of her prior treating physicians. Because plaintiff filed her
complaint within two years of the November 7, 2018 date, her complaint is
timely under the discovery rule.
Affirmed.
A-1109-24 19