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Bauer v. Bowen

Decided: October 10, 1960.

J. J. BAUER AND LOIS BAUER, HIS WIFE, PLAINTIFFS-APPELLANTS,
v.
ROBERT N. BOWEN, M.D., DEFENDANT-RESPONDENT



Goldmann, Freund and Kilkenny. The opinion of the court was delivered by Kilkenny, J.A.D.

Kilkenny

The Camden County Court, Law Division, granted defendant's motion for summary judgment and dismissed plaintiffs' malpractice suit on the sole ground that it was barred by the statute of limitations. The plaintiffs appeal therefrom.

While the motion was one for summary judgment under R.R. 4:58, it was more in the nature of a motion for judgment on the pleadings under R.R. 4:12-3. It was based solely on the amended complaint, answer, pretrial order, and the memoranda of law submitted by the respective parties. Unlike the usual motion for summary judgment, neither party submitted any affidavits, depositions or exhibits to the trial court. Hence, in reviewing the propriety of the judgment below, we limit ourselves to a consideration of the same papers which were submitted below.

The original complaint was filed on March 23, 1959, a Monday, but was never served upon the defendant. In it, the female plaintiff and her plaintiff husband, who sued per quod , charged the defendant doctor with negligence, in performing a therapeutic abortion on the female plaintiff in March 1957 at the West Jersey Hospital, Camden, New Jersey, and with fraud, in knowingly and intentionally making false and fraudulent representations to the plaintiff that he had, in that operation, removed and aborted the unborn child being carried by her. She alleged that his fraud was not discovered until March 21, 1957, when she was re-admitted to the hospital and the removal of the foetus was then completed.

The plaintiffs filed an amended complaint on March 30, 1959, a copy of which, together with summons, was served

upon the defendant. The first count of the amended complaint, which also charges both negligence and fraud, is exactly the same as the first count of the original complaint, except that paragraph 5, alleging an element of damages, has been deleted and paragraph 6 has become paragraph 5 of the amended complaint. Further, the original complaint did not contain the second count of the amended complaint, which is, in substance, the deleted paragraph 5 above. The second and third counts of the original complaint are the third and fourth counts of the amended complaint. The substance of both complaints is the same.

We need concern ourselves on this appeal only with the first count of the amended complaint, which charges both negligence and fraud, in its relationship to the statute of limitations. The amended complaint filed on March 30, 1959 does not set forth a new cause of action, but the same cause of action in somewhat different form. Therefore, the time of its filing relates back to the time of the filing of the original complaint on March 23, 1959 and the latter governs.

The applicable statute of limitations in a suit for personal injuries based upon the alleged malpractice of a doctor, N.J.S. 2 A:14-2, provides:

"Every action at law for an injury to the person caused by the wrongful act, neglect or default of any person within this state shall be commenced within 2 years next after the cause of any such action shall have accrued."

The important issue on this appeal is when did the plaintiff's cause of action "accrue." It was conceded on the oral argument that the defendant operated on the female plaintiff on March 6, 1957, performing a lawful, therapeutic abortion. His answer denies her charge of fraud, so that the pleadings raise an issue of fact as to whether he falsely represented that he had completely removed the foetus in the operation. Her complaint alleges that she imposed a trust in him and believed in him and relied upon his superior means of information as to what had been done to her body.

The respective briefs concede that she remained at the hospital under his care until March 16, 1957, when she was discharged and returned to her home. On March 21, 1957, while the female plaintiff was at home, there appeared from her body a part of the foetus, which would establish the falsity of his representations, if he ever made them. Plaintiff was immediately transported back to the hospital. The defendant was called, ...


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