For reversal -- Chief Justice Weintraub, and Justices Jacobs, Francis, Proctor and Schettino. For affirmance -- Justices Hall and Haneman. The opinion of the court was delivered by Jacobs, J. Hall, J. (dissenting). Justice Haneman authorizes me to say that he joins in this dissent.
The Law Division granted the motion by the defendants for summary judgment on the ground that the claim by the plaintiffs was barred by the statute of limitations. The plaintiffs appealed from the ensuing judgment and we certified the appeal on our own motion while it was pending in the Appellate Division.
In 1954 Mrs. Fernandi was told by her family physician Dr. Mazzarella that she needed an operation and that he would send her to Dr. Strully, a surgeon with offices in Paterson. Thereafter Dr. Strully examined her and on April 26, 1955, assisted by Dr. Mazzarella and Dr. Prince, he performed a total hysterectomy upon her at St. Joseph's Hospital, Paterson. Mrs. Fernandi was discharged from the Hospital on May 5, 1955 and received postoperative attention from Dr. Strully. Her last visit to Dr. Strully in that year was on November 14, 1955; she did not see him again until September 1958 although in the intervening period she made many visits to Dr. Mazzarella. During these visits she complained that her back was troubling her and received medication and heat treatments. In August 1958 she discussed with Dr. Mazzarella the desirability of having x-rays
of her back. Dr. Mazzarella sent her to Dr. Santoro who took x-rays and told her that in her abdomen there was a foreign object which looked like a wing nut. She showed the x-rays first to Dr. Mazzarella and then to Dr. Strully who examined and told her, according to her deposition, that she had "that wing nut that was missing" but that he did not want her to worry about it because "it is steel and it is sterile." Dr. Strully's deposition indicated that he had been told by someone at St. Joseph's Hospital that a wing nut on a retractor used during the course of the operation on Mrs. Fernandi had been missing. On February 16, 1959 Dr. Strully obtained Mrs. Fernandi's signature to a document in the doctor's handwriting which read as follows: "This is to certify that Dr. Strully has told me of the wing nut in my pelvis."
On August 13, 1959, Mrs. Fernandi and her husband filed a complaint in the Law Division naming Doctors Strully, Mazzarella and Prince as defendants. In the first count of the complaint Mrs. Fernandi alleged that she employed Dr. Strully to perform a total hysterectomy on her and that Doctors Mazzarella and Prince were retained to assist him; that in the course of the operation the doctors negligently and carelessly left a wing nut in her body as a result of which she has suffered and will suffer great pain and anguish; and she sought damages for her injuries resulting from the negligence of the doctors. In another count of the complaint she alleged that the doctors had "fraudulently and deceitfully concealed their negligence" and that as a result she was lulled "into a sense of security so as to permit her to allow the time permitted by the Statute of Limitations to elapse." In still another count of the complaint she alleged that in her treatment after the operation the doctors had "failed to exercise reasonable and ordinary care" in that "they did not take x-rays to determine the cause of her complaints relative to her back." Answers to the complaint were filed by the doctors and in addition Doctors Strully and Prince filed a cross-claim against Dr. Mazzarella
and a third-party complaint against St. Joseph's Hospital. The Hospital filed an answer and cross-claim and thereafter the attorneys for the three doctors served notice that they would move for summary judgment on the ground that the statute of limitations had barred the claim of the plaintiffs.
On July 1, 1960 Assignment Judge Kolovsky, sitting in the Law Division, rendered his opinion in which he stated that he had considered the affidavits and depositions submitted to him, as well as the briefs and argument of counsel; that he did not believe there was much doubt about the presence of a foreign body in Mrs. Fernandi's abdomen and that it could be considered as established, for purposes of the motion, that the "foreign body is a wing nut which came from a retractor that was used in the operation"; that more than two years had elapsed between the date of the operation and the institution of the plaintiffs' action; and that while he inclined, on principle, towards a contrary view he considered himself bound to hold under Weinstein v. Blanchard, 109 N.J.L. 332 (E. & A. 1932) and Tortorello v. Reinfeld, 6 N.J. 58 (1950), that the plaintiffs' action, grounded on the charge that the doctors were negligent and careless in the course of the operation, was barred by the statute of limitations. He found no evidence to support the charge of fraudulent concealment of the negligence and expressed uncertainty as to whether the plaintiffs' pleading was intended to allege that Doctors Strully and Mazzarella were guilty of independent negligent acts or omissions during the two-year period before the institution of the action. He concluded that the motion for summary judgment should be granted, reserving to the plaintiffs the right "to file an amendment relating to acts of negligence within two years prior to August 13, 1959, when the complaint was filed." The ensuing judgment dismissed the complaint, along with the cross-claims and third-party complaint, and thereafter the plaintiffs duly filed notice of appeal from the dismissal of their action against the doctors. At the oral argument,
counsel for the plaintiffs acknowledged that there was insufficient evidence to establish the charge of fraudulent concealment but urged that, under the circumstances, the plaintiffs' negligence action may not justly be deemed to have been barred by the statute of limitations. No question has been raised as to the present appealability of the Law Division's judgment (cf. R.R. 4:55-2) nor has any question been raised as to the status of the cross-claims and third-party complaint although it would seem clear that, if the plaintiffs' action against the doctors is here held not to be barred by the statute of limitations, leave should be granted in the Law Division for reinstatement of the cross claims and third-party complaint.
In Wood v. Carpenter, 101 U.S. 135, 139, 25 L. Ed. 807, 808 (1879), Justice Swayze noted that limitation statutes embody important public policy considerations in that "they stimulate to activity and punish negligence" and "promote repose by giving security and stability to human affairs." See Board of Trade v. Cayzer, Irvine & Co.,  A.C. 610, 628; cf. Chase Securities Corp. v. Donaldson, 325 U.S. 304, 314, 65 S. Ct. 1137, 89 L. Ed. 1628, 1635 (1945); Public Schools v. Walker, 9 Wall. 282, 19 L. Ed. 576, 578 (1870). When a plaintiff knows or has reason to know that he has a cause of action and voluntarily sleeps on his rights so long as to permit the customary period of limitations to expire, the pertinent considerations of individual justice as well as the broader considerations of repose, coincide to bar his action. Where, however, the plaintiff does not know or have any reason to know that he has a cause of action until after the period of limitations has expired, the considerations of individual justice and the considerations of repose are in conflict and other factors may fairly be brought into play. In some states the legislatures have endeavored to deal directly with the issue. See Mo. Rev. Stat. Ann. § 1012 (1939) cited in Thatcher v. De Tar, 351 Mo. 603, 173 S.W. 2 d 760 (Sup. Ct. 1943) and Act 58 of 1945, Ark. Stats. §§ 37-205 cited in Crossett Health Center v. Croswell, 221 Ark. 874,
256 S.W. 2 d 548 (Sup. Ct. 1953). In most of the states, as in New Jersey, the legislatures have not at all expressed themselves on the matter, preferring to leave to judicial interpretation and application the rather obscure statutory phraseology that the plaintiff's proceeding shall be instituted within a stated period after his cause of action "shall have accrued." See N.J.S. 2A:14-1 et seq.; cf. Note, "Developments in the Law, Statutes of Limitations," 63 Harv. L. Rev. 1177, 1203-1205 (1950).
Most courts, including those in New Jersey, have taken the position that where a plaintiff suffers damage as the result of the defendant's wrong he may be barred though he does not, during the customary period of limitations, know or have any reason to believe that he has a cause of action. See Sullivan v. Stout, 120 N.J.L. 304 (E. & A. 1938); Gogolin v. Williams, 91 N.J.L. 266 (E. & A. 1917); Martucci v. Koppers Co., 58 F. Supp. 707 (D.C.N.J. 1945). In reaching this result the courts have evidently considered that the obvious injustice to the plaintiff is outweighed by broader policy considerations favoring the defendant; in Tortorello v. Reinfeld, supra, 6 N.J. 58, the court, in holding that an action against a plastic surgeon who allegedly disfigured the plaintiff, was barred by the two-year period of limitations (calculated from the date of the wrong and injury rather than from the date of the last professional treatment or the date of knowledge of the cause of action), quoted approvingly from an Illinois case where the court remarked that "'while hardships may arise in particular cases by reason of this ruling, a contrary ruling would be inimical to the repose of society and promote litigation of a character too uncertain and too speculative to be encouraged.'" 6 N.J., at p. 67.
Notwithstanding the foregoing, there have been many instances in which courts, in our State as well as elsewhere, have found the particular circumstances and the considerations of individual justice to be sufficiently compelling to dictate a less harsh approach. In Hughes v. Eureka Flint,
&c., Inc., 20 N.J. Misc. 314 (Mercer County Cir. Ct. 1939), the plaintiff in 1938 instituted a common law negligence action in which he alleged that he was employed by the defendant from 1920 to 1938 and that because of the neglect of the defendant he had contracted silicosis from continued inhalation of dust particles. The defendant contended that even though the plaintiff may have theretofore been wholly unaware of his condition or its cause he was barred by the two-year limitation from asserting any claim with respect to negligence prior to 1936. This contention was rejected by Justice (then Circuit Court Judge) Oliphant who pointed out that New Jersey's statute of limitations does not define the accrual of a cause of action; that "within the limits of the statute an interpretation of the phrase 'cause of action' should be reached which is in favor of the injured party and against the wrongdoer"; and that while it would impose some hardship on the defendant to permit the plaintiff to prove acts of negligence over the period of many years, it would be "even more undesirable and unjust" to bar such proof by the plaintiff. The Justice concluded that the defendant's wrong should be treated as "single and continuous," that no other rule would constitute "substantial justice," and that the statute of limitations should be viewed as beginning "to run from the last date of employment." See 20 N.J. Misc., at p. 316; cf. Biglioli v. Durotest Corp., 44 N.J. Super. 93, 102 (App. Div. 1957), affirmed 26 N.J. 33, 44 (1958).
In Urie v. Thompson, 337 U.S. 163, 69 S. Ct. 1018, 93 L. Ed. 1282 (1949), the plaintiff Urie was employed by the defendant for 30 years and, having contracted silicosis, was forced to cease work in 1940. On November 25, 1941 he instituted a proceeding under the Federal Employers' Liability Act which provides that no action thereunder shall be maintained unless commenced within three years "from the day the cause of action accrued." See 45 U.S.C.A. § 56. The defendant contended that the plaintiff had undoubtedly, though unwittingly, contracted silicosis long before
1938 and was therefore barred by the three-year period of limitations; in the alternative there was a suggested contention that each inhalation of silica dust was a separate tort giving rise to a fresh cause of action and that the plaintiff was therefore limited to a claim for inhalations within the three-year period immediately prior to the institution of his action. In rejecting these contentions Justice Rutledge, speaking for the Supreme Court, had this to say:
"If Urie were held barred from prosecuting this action because he must be said, as a matter of law, to have contracted silicosis prior to November 25, 1938, it would be clear that the federal legislation afforded Urie only a delusive remedy. It would mean that at some past moment in time, unknown and inherently unknowable even in retrospect, Urie was charged with knowledge of the slow and tragic disintegration of his lungs; under this view Urie's failure to diagnose within the applicable statute of limitations a disease whose symptoms had not yet obtruded on his consciousness would constitute waiver of his right to compensation at the ultimate day of discovery and disability. * * *
We do not think the humane legislative plan intended such consequences to attach to blameless ignorance. Nor do we think those consequences can be reconciled with the traditional purposes of statutes of limitations, which conventionally require the assertion of claims within a specified period of time after notice of the invasion of legal rights." 337 U.S., at p. 169-170, 69 S. Ct., at p. 1024, 93 L. Ed., at p. 1292
The sweep of Justice Rutledge's language raises questions as to earlier decisions which took the position that statutory periods of limitation are generally deemed to run though the plaintiff does not know or have any reason to know that he has a cause of action; but this broader subject with its far-reaching implications need not be pursued here for the foreign object malpractice cases, with which we are particularly concerned, present special considerations which may fairly be said to set them apart. They involve the confidential doctor-patient relationship, the negligent failure to remove a foreign object during the ...