SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NOS. A-3894-17T1

 A-4078-17T1

SALVATORE H. DIDIO,

Plaintiff-Appellant,

v.

ORTHOPAEDIC AND SPORTS 

MEDICINE, LLP, and DR. YAIR 

D. KISSIN, M.D., 

Defendants,

and

KRISTY SAWICKI, P.A.,

Defendant-Respondent.

_____________________________

SALVATORE H. DIDIO,

Plaintiff-Respondent,

v.

ORTHOPAEDIC AND SPORTS 

MEDICINE, LLP, and DR. YAIR 

D. KISSIN, M.D., 

NOT FOR PUBLICATION WITHOUT THE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.
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A-3894-17T1

Defendants,

and

KRISTY SAWICKI, P.A.,

Defendant-Appellant.

_____________________________

Submitted February 26, 2019 – Decided

Before Judges Hoffman and Suter.

On appeal from Superior Court of New Jersey, Law 

Division, Bergen County, Docket No. L-8030-15.

Donna H. Clancy, attorney for appellant Salvatore H. 

Didio in A-3894-17 and respondent Salvatore H. Didio

in A-4078-17. 

Rosenberg Jacobs Heller & Fleming, PC, attorneys for 

respondent Kristy Sawicki, P.A. in A-3894-17 and 

appellant Kristy Sawicki, P.A. in A-4078-17 (Douglas 

F. Ciolek, of counsel and on the briefs).

PER CURIAM

In this medical negligence action, plaintiff Salvatore H. Didio appeals 

from the April 6, 2018 Law Division order dismissing his complaint against 

defendant Kristy Sawicki, P.A., a physician's assistant (P.A.), on the basis that 

March 22, 2019
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it was filed after the statute of limitations had run.1 Plaintiff contends the motion 

judge erred in determining the accrual date of his cause of action and in failing 

to conduct a Lopez2 hearing. Defendant appeals from an earlier trial court order 

restoring plaintiff's complaint and reopening discovery.

3

 We affirm the order

dismissing plaintiff's complaint, and dismiss defendant's appeal as moot.

I

We review the pertinent facts. On August 28, 2013, plaintiff received Gel 

One shots into his knees from defendant, to "relieve some of the pain in [his] 

knee making it easier for him to walk" during an upcoming vacation. Defendant 

began by cleaning plaintiff's right knee with alcohol. She then removed a pen 

from her jacket pocket, causing plaintiff to ask, "What are you going to do with 

that pen? Are you going to write on my knee?" Defendant responded that she 

 

1

 Plaintiff's complaint also named Orthopaedic and Sports Medicine, LLP and 

Dr. Yair D. Kissin, M.D. as defendants. Since the claims against those 

defendants were previously dismissed, and plaintiff does not challenge their 

dismissal, we refer to P.A. Sawicki as defendant.

2

 Lopez v. Swyer, 62 N.J. 267 (1973). 

3

 Since the parties' appeals were scheduled back-to-back on the same calendar, 

we consolidate them for purposes of this opinion. Defendant's brief states she 

withdraws her appeal as moot if this court affirms the order dismissing plaintiff's 

complaint.
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was going to press the pen in a closed position to make an indentation, marking 

the spot where she would make the injection. Plaintiff's wife inquired about the 

use of an imaging machine during the administration of the injection, and 

defendant stated it was unnecessary. After defendant made the indentation with 

the pen, she administered the injection. At his deposition, plaintiff stated he did 

not feel "anything except for the needle going in." 

Defendant then followed the same procedure and administered an

injection into plaintiff's left knee; however, this time plaintiff "felt pain" and 

"the gel going around the joint." Plaintiff asked defendant "why [he] felt the 

fluid going in, the gel going around [his] knee, and [why he] did not experience 

that with the right knee." At their depositions, plaintiff and his wife both stated 

that defendant said nothing in response to the question. 

Plaintiff was able to arrive and leave the office without any assistance. 

Later that evening, however, plaintiff's "right knee started swelling up and 

started to get pain in it." Plaintiff at first "thought that [it] was normal" because 

defendant "told [him] it would stiffen up," "[b]ut by the next day it was 

unbearable." 

On August 30, 2013, plaintiff returned to defendant's office on crutches 

because he could not put weight on his swollen right knee. Dr. Kissin removed 
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80 cc's of liquid from the knee, and stated that it looked like blood. According 

to plaintiff, Dr. Kissin stated that the removal of fluid "should alleviate the pain, 

[and he] should have no more problems." At this time, plaintiff "asked why [the 

knee] was so red[,] and [defendant] said she may have nicked a vein when she 

gave [p]laintiff the shot." Plaintiff's wife again mentioned the imaging machine, 

thinking that it would have avoided such a problem; in response, defendant 

stated "they don't use it in this office." 

Over Labor Day weekend (August 31 to September 2, 2013), plaintiff and 

his wife considered going to the emergency room because of continuing pain; 

however, Dr. Kissin advised against it. According to plaintiff, "He was afraid 

of them giving me an infection." On September 3, plaintiff returned to

defendant's office "in severe pain, his knee was very swollen again, and he 

could[ not] put any pressure on it or walk on it." Dr. Kissin removed another 80

cc's of fluid from the knee, and this time "a creamy," "cloudy," and "milky" 

color was extracted. Dr. Kissin stated that it could be an infection, which would 

require surgery to have it "washed out." The specimen was sent to Quest 

Diagnostics for testing. 

Seeking a second opinion, plaintiff went to Dr. Gregory Montalbano's 

office on September 4. Dr. Montalbano's associate, Dr. Daniel Savino, 
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apparently received "some results" from Quest "showing that it was already a 

possible septic staph infection." The next day, plaintiff returned to see Dr. 

Montalbano, who "was able to retrieve more of the results and told [plaintiff]

that [he] would definitely need . . . surgery to clear the infection." Dr. 

Montalbano performed the surgery that Friday, September 6, 2013. Plaintiff 

remained in the hospital for the next five days. Since "the infection was very 

severe and the [first surgery] didn't help enough," plaintiff underwent a second 

surgery on September 20, 2013, and remained in the hospital for another five 

days. 

In their depositions, plaintiff and his wife stated that none of the doctors 

involved speculated as to the cause of plaintiff's infection. However, they both 

stated that they thought it was caused by defendant's injection of the gel shot. 

During her deposition, plaintiff's wife stated that plaintiff "had gotten a severe 

infection from the way that the shot was administered . . . ." The following 

colloquy then occurred:

Q. Did any of your husband's treating physicians tell 

you that his infection was from the gel shot 

initiated by [defendant]?

A. I don't recall.
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Q. Okay. What information, if any, do you have for 

stating that his severe infection was from her 

injection?

A. Just from general knowledge, to know that you 

should not have something taken out of your 

pocket and put on someone else's skin that you're 

administering a shot to. 

Q. Okay. This is your general knowledge?

A. Yes.

. . . . 

Q. Would it be fair to say that back when you saw 

Dr. Kissin on September 3[], 2013, you were 

thinking that this issue your husband was having 

was from the gel injection?

A. Yes.

Q. Did you have that discussion with your husband 

at that time, that you thought that his issue on 

September 3[], 2013, [was] due to the gel shot?

A. Yes.

On September 9, 2015, plaintiff filed the malpractice action under review, 

claiming that defendant "failed to properly administer" the Gel One shot into his 

right knee, causing it to become inflamed, and require surgery. 

Following oral argument, the motion judge granted defendant's motion for 

summary judgment, dismissing plaintiff's complaint on the basis that his claim 
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was barred by the statute of limitations. The judge found that during the initial 

procedure, plaintiff questioned "defendant's use of [the] pen to make a mark on 

the sterilized knee[,] and [he] was aware that she had done that with an unsterile 

instrument." Plaintiff soon experienced "excruciating pain," returned to 

defendant's office multiple times, and

continued to suffer problems [when] on . . . September 

3[] milky fluid was removed. He was aware on or 

before September 3[] that there was a possible infection 

and . . . on September 4[] . . . . he saw Dr. Montalbano's 

associate, Dr. Savino, [who] informed . . . plaintiff that 

it was a possible staph infection . . . .

. . . .

[O]n the date of the procedure . . . plaintiff suspected 

that what . . . [defendant] was doing was not correct. 

And combined with the immediacy of the infection I do 

find that the statute started to run not later than 

September 3[] . . . . 

II

A two-year statute of limitations applies to claims for personal injuries. 

N.J.S.A. 2A:14-2; Giannakopoulos v. Mid State Mall, 438 N.J. Super. 595, 610, 

(App. Div. 2014). A cause of action for medical malpractice generally accrues 

on the date of the alleged negligent act or omission. Szczuvelek v. Harborside 

Healthcare Woods Edge, 182 N.J. 275, 281 (2005).
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Statutes of limitations create repose and are "practical and pragmatic 

devices to spare the courts from litigation of stale claims, and the citizen from 

being put to his [or her] defense after memories have faded, witnesses have died 

or disappeared, and evidence has been lost." Fox v. Millman, 210 N.J. 401, 415, 

(2012) (quoting Chase Sec. Corp. v. Donaldson, 325 U.S. 304, 314 (1945)). 

When the statute of limitations expires before a plaintiff "[knows] or [has] 

reason to know that he [or she] has a cause of action against an identifiable 

defendant . . . the considerations of individual justice and the considerations of 

repose are in conflict and other factors may fairly be brought into play." Farrell 

v. Votator Div. of Chemetron Corp., 62 N.J. 111, 115 (1973).

To accommodate those considerations, our Supreme Court adopted the 

discovery rule. Fernandi v. Strully, 35 N.J. 434, 450 (1961); see also

Szczuvelek, 182 N.J. at 281; Graves v. Church & Dwight Co., 115 N.J. 256, 257 

(1989). The discovery rule postpones accrual of a cause of action until "the 

injured party discovers, or by an exercise of reasonable diligence and 

intelligence should have discovered that he [or she] may have a basis for an 

actionable claim." Szczuvelek, 182 N.J. at 281 (alteration in original) (quoting 

Lopez, 62 N.J. at 272 (internal quotation marks omitted)); see also Caravaggio 

v. D'Agostini, 166 N.J. 237, 246 (2001) ("The question in a discovery rule case 
10 A-3894-17T1

is whether the facts presented would alert a reasonable person, exercising 

ordinary diligence, that he or she was injured due to the fault of another.").

When determining whether the injured party had knowledge of fault, the 

law does not require that the person have a provable claim or even that the person 

be aware of facts to suggest that fault is "probable," rather all that is required is 

that the person be aware of facts which suggest the "possibility" of wrongdoing. 

Savage v. Old Bridge-Sayreville Med. Group, PA, 134 N.J. 41, 248 (1993). 

[K]nowledge of fault for purposes of the discovery rule 

has a circumscribed meaning: it 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. 

[Ibid.]

Here, plaintiff and his wife had suspicions regarding defendant's care

during the injection, as plaintiff questioned her on pressing the unsterile pen 

onto his sterilized knee, while plaintiff's wife suggested the use of an imaging 

machine during the administration of the injection. Plaintiff experienced severe 

pain as early as the evening of the day he received the shot. Two days later, 

defendant stated that she "may have nicked a vein" in plaintiff's knee. After 

removing 80 cc's of liquid from the knee that day, Dr. Kissin stated it should 
11 A-3894-17T1

alleviate the pain, with no more problems. However, later that evening and 

throughout the weekend, plaintiff continued to suffer severe pain, and 

considered going to the emergency room. 

On September 3, after removing another 80 cc's from the knee – this time 

revealing "milky," "creamy," and "cloudy" liquid – Dr. Kissin stated it could be 

an infection, which would require surgery to wash it out. The next day, plaintiff 

visited Dr. Montalbano's office, and learned it was a possible septic staph 

infection. Dr. Montalbano saw the knee on September 5, and determined that a 

washout surgery was needed – the first surgery taking place September 6. 

Significantly, plaintiff's wife stated in her deposition that she and plaintiff 

discussed that they thought plaintiff's problems were caused by the gel shot 

"before [they] saw Dr. Montalbano" on September 4. On September 5, Dr. 

Montalbano concluded that plaintiff needed surgery. It is therefore clear that 

plaintiff and his wife were aware of material facts relating to the existence and 

origin of his injuries by September 3, and certainly no later than September 5, 

significantly before the September 9 filing of plaintiff's complaint two years 

later. Since we reach this conclusion while accepting everything plaintiff and 

his wife said at their depositions as true, and while reviewing the record in a 

light most favorable to plaintiff, we reject plaintiff's contention that the trial 
12 A-3894-17T1

court erred in declining to conduct a Lopez hearing. See Lopez, 62 N.J. at 275 

(holding that "[w]here credibility is not involved" in resolving application of the 

discovery rule, "affidavits, with or without depositions, may suffice").

To the extent not specifically addressed here, plaintiff's remaining 

arguments are without sufficient merit to warrant discussion in a written 

opinion. R. 2:11-3(e)(1)(E).

The trial court's summary judgment order is affirmed. Defendant's appeal 

is dismissed as moot.