On motion to dismiss for failure to state a claim upon which relief can be granted, and motion for summary judgment.
Yancey, J.c.c. (temporarily assigned).
On August 29, 1962 the plaintiffs, Frances Rothman and Edward Rothman, filed a complaint against the defendants, Dr. John Silber, Dr. Stanley Goodman, and Newark Beth Israel Hospital, a corporation of New Jersey. The complaint alleged that the defendants negligently treated the plaintiff, Frances Rothman, so as to seriously and permanently injure her. The defendants, after filing their answers denying the allegations set forth in the complaint, moved "to strike the complaint of the plaintiffs," contending that the personal injuries complained of by Frances Rothman occurred more than two years prior to the institution of the suit and the action is therefore barred by the statute of limitations. The motion came on for hearing on March 15, 1962. On November 30, 1962 the defendants' motion to dismiss was denied without prejudice. The plaintiffs were permitted to file an amended complaint and the defendants were granted the right to renew the motion "to strike" after further discovery proceedings.
Plaintiffs filed their amended complaint in ten counts, five of which allege a per quod cause of action by the husband. Plaintiffs allege: (1) defendants negligently performed certain
medical and surgical procedures attendant to the birth of their child; (2) they contracted with plaintiffs to render specialized medical and surgical procedures, but due to their negligence failed to do so and thus breached their contract; (3) they "committed acts of malpractice against the plaintiff" because they improperly left or caused to be left a foreign object or body in the female plaintiff, and (4) they fraudulently concealed the injury inflicted upon said plaintiff.
Defendants, upon receipt of this amended complaint, renewed their motion to strike on the grounds that "the suit is barred by the Statute of Limitations in such cases made and provided." The matter came on for hearing before me and after very carefully examining the depositions and the cases cited in the briefs submitted by counsel for both sides I find that the motion to strike the amended complaint should be denied and for the following reasons.
Plaintiff Frances Rothman was delivered of her third child on March 10, 1960 at the Beth Israel Hospital in Newark, New Jersey. Plaintiff's treating physician, an obstetrician, was defendant Dr. Stanley Goodman. The anesthetist for the delivery was defendant Dr. Joseph Silber. Prior to delivery a saddle block anesthesia was administered. The morning after the delivery plaintiff complained of headaches and pain radiating down the back of her right thigh from the buttock to the knee. Both Dr. Goodman and Dr. Silber were informed of these complaints. They told Mrs. Rothman that she was suffering from the after-effects of childbirth and that the pains and headaches would gradually disappear.
Mrs. Rothman was discharged from the hospital on March 17, 1960. As of that date the pains on her right side had disappeared, but slight headaches remained. "Twinges" of pain on her right side occurred off and on during a period of about one month after her return home. In May or June the pains on her right side recurred with greater severity. Because of
this increase in pain, Mrs. Rothman went to see Dr. Emanuel Klosk, a general practitioner. Her first visit was on July 15, 1960. She complained of pain in the right hip, radiating down the back of her right thigh from the buttock to the knee. She also stated to the doctor that she had been delivered of a child about four months prior to his seeing her and had received a saddle block. After her examination by Dr. Klosk, Mrs. Rothman, on August 3, 1960, went to Dr. Philip Willner, an orthopedic surgeon. During the course of the examination Mrs. Rothman informed the doctor that she had had a saddle block administered to her during delivery of her third child, and that she had "very bad pains from my hip down." She claimed that the pain occurred about two months ago.
Mrs. Rothman next saw Dr. Lewis H. Loesser, a neurologist, on August 15, 1960. She gave him the same history that she had previously given to the other physicians, that is, "after the third baby [March 10, 1960] after a saddle block, developed sciatic pain. After two and a half months it came back slowly."
Subsequently Mrs. Rothman, suspecting that she was again pregnant, visited Dr. Arthur S. Buckler, a general practitioner, on November 18, 1960. Dr. Buckler received the same history concerning Mrs. Rothman's past medical episode.
The depositions taken of the doctors mentioned above, with the exception of Dr. Buckler, do not indicate that they professionally diagnosed the case of Mrs. Rothman's condition as having been the result of the administering of the saddle block during the delivery of her child. Not until the visit to Dr. Buckler was the cause of her recurring "twinges" of pain diagnosed as having been possibly caused and related to the saddle block anesthesia administered to Mrs. Rothman on March 10, 1960.
With the above facts before me, I will now apply what I have found to be the applicable law to the instant case. First
with reference to the enumerated allegations set forth in the amended complaint, I shall at the outset ...