On March 25, 1987, Frank H. Kisselbach executed a power of attorney in favor of his son, Frank G. Kisselbach (Frank Jr.). From December 2, 1987, until his death on December 20, 1988, Mr. Kisselbach was hospitalized at various institutions due to a series of strokes. The death certificate attributed his death to arteriosclerotic vascular disease, and listed severely infected decubiti (bedsores) as a significant contributing condition.
On December 20, 1990, Frank Jr. brought suit on his father''s behalf against the County of Camden, Lakeland Hospital and Care Inn. The complaint and amended complaint alleged, inter alia, negligence, malpractice, and wrongful death. The entire suit was eventually dismissed by a series of partial summary judgment motions. The wrongful death counts were dismissed due to the alleged lack of qualified expert opinion. The court also found that Mr. Kisselbach was insane from the time he was first admitted to Care Inn until his death. Nevertheless, the court concluded that, based on the power of attorney, Frank Jr. could have sued on his father''s behalf and that therefore the statute was not tolled. Accordingly, the court dismissed the remainder of the complaint based on the statute of limitations bar.
On appeal, Frank Jr. argued that the statute of limitations was erroneously applied because the power of attorney did not enable him to sue on his father''s behalf while he was alive. Frank Jr. also challenged the court''s conclusion that a supplemental expert report, submitted with a motion to vacate the dismissal of the wrongful death counts, was a "net opinion" and insufficient to establish negligence.
The court concludes that since the power of attorney was not a durable one, it had no legal effect once Mr. Kisselbach became incompetent. Moreover, the court notes, the power of attorney did not give Frank Jr. the power to initiate litigation. Thus, the survival claims are not barred by the statute of limitations. The court also holds that the supplemental expert report was not a "net opinion" and was sufficient to create a prima facie case of negligence.
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