[17 NJSuper Page 291] This is a motion to amend the complaint in a negligence action. The complaint alleged that in May, 1948, while plaintiffs were employed in the defendant hospital, "there had been confined in said hospital a patient suffering from a disease known as infectious mononucleosis and a condition of the liver, which conditions the defendant knew or should have known were highly infectious * * *; that due and proper care and proper medical practice required that any patient so suffering should be isolated and so managed
and guarded as to prevent the spreading of such infection * * *; that due and proper care was not taken by the defendant * * * and that as a result of such negligence * * * the plaintiff(s) contracted infectious mononucleosis complicated by hepatitis" and as a result became ill and sustained damages which they now seek to recover.
The amendment seeks recovery on the allegation above quoted and also upon an allegation that "the defendant was negligent in failing to properly diagnose (their) condition, and was thereafter negligent in the treatment accorded * * * after (the) true condition was discovered, which improper treatment included a failure to provide adequate rest and an adequate period for proper recuperation, before being ordered to return to duty."
The statute has run against the institution of a new suit and the question for decision is whether the amendment to the complaint which the plaintiffs now seek leave to file, states a new and different cause of action.
Rule 3:15-1 provides that "a party may amend his pleading only by leave of court * * *; and leave shall be freely given when justice so requires." The question of whether or not an amendment will be allowed after the running of the statute of limitations has been before the Supreme Court. In Russo v. Wright Aeronautical Corp. , 1 N.J. 417 (1949) it was said:
"'* * * an entirely new and different cause of action cannot be introduced after the statute has tolled the action.' But it is equally well settled 'that an amendment will not, as a rule, be held to state a new cause of action, if the facts alleged show substantially the same wrong with respect to the same transaction, or if it is the same matter more fully or differently laid, or if the gist of the action or the subject of controversy remains the same.' (Citing cases.) '"Gist" is the essential ground or object of the action in point of law, without which there would be no cause of action; the cause for which an action will lie; the ground or foundation of a suit, without which it would not be maintainable; * * *.'"
Thereafter, in Welsh v. Board of Educ. of Tewksbury Tp. , 7 N.J. Super. 141 (App. Div. 1950) the court said:
"It has been the firmly implanted rule that an entirely new and distinctly different cause of action cannot be means of an amendment of the pleadings be introduced after the statute has tolled the action. (Citing cases.)
The existing liberality in permitting amendments is bestowed to prevent legalistic technicalities from impeding, or obstructing, the paramount aspiration to promote substantial justice in all litigious controversies. The present progressive judicial policy is not, however, intended to afford a refuge to languid and dilatory litigants. * * *
It would be supremely impracticable, if not pernicious, to condone a practice which would permit adventurous litigants by means of successive amendments to the pleadings in the original action to prosecute, seriatim , a procession of distinctly disparate causes of action and thus elude the statutory limitations of time. * * *
With these statements as criteria, the question becomes one of determining whether the "gist" of the original complaint and the sought for amendment are the same. The plaintiffs urge that there is no substantial change in the nature of the claim and rely upon O'Shaughnessy v. ...