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Rothman v. Silber

Decided: January 3, 1966.


Gaulkin, Labrecque and Brown. The opinion of the court was delivered by Labrecque, J.A.D. Gaulkin, S.j.a.d. (concurring).


By leave granted, defendants Joseph Silber, Stanley Goodman and Newark Beth Israel Hospital appeal from the denial of their motion to dismiss plaintiffs' amended complaint for medical malpractice on the ground that it was barred by the statute of limitations, N.J.S. 2A:14-2. Plaintiffs cross-appeal from the dismissal of the ninth and tenth counts of their amended complaint. See Rothman v. Silber, 83 N.J. Super. 192 (Law Div. 1962).

On March 10, 1960 plaintiff Frances Rothman was delivered of her third child at the Newark Beth Israel Hospital. She was attended by Dr. Goodman as her obstetrician and Dr. Silber as anesthetist. On August 29, 1962, more than two years later, she and her husband (per quod) instituted the present suit alleging negligence in the administration of a "saddle block [spinal] anesthesia" and claiming damage for pain, suffering and disability. Defendants answered denying negligence and setting up as a special defense the statute of limitations.

Defendants Goodman and Silber moved to dismiss the complaint on the ground that the action was barred by the two-year statute. R.R. 4:12-2(e). This motion was denied without prejudice pending amendment of the complaint to set up fraudulent concealment by defendants of Mrs. Rothman's condition and its cause. Thereafter, a motion by all three defendants to dismiss the amended complaint for the same reason was denied on the ground that the administration of the anesthesia amounted to the introduction of a foreign substance into her body, and that the two-year period of limitation did not begin to run until she discovered it to be the cause of her injury. However, the judge of the Law Division

granted summary judgment for defendants on the ninth and tenth counts of the amended complaint, which charged fraudulent concealment, on the ground that there was an absence of any factual basis for that charge.

The record on appeal consists, for the most part, of affidavits filed by Mrs. Rothman and excerpts from her deposition, excerpts from the depositions of three of her treating physicians, Dr. Arthur S. Buckler, Dr. Lewis H. Loeser and Dr. Philip Willner, together with supporting exhibits, and the depositions of Dr. Silber and Dr. Goodman.

Defendants' basic contention is that plaintiffs' cause of action for malpractice in the administration of the anesthesia accrued at the time of its administration and was barred at the expiration of two years thereafter. N.J.S. 2A:14-2; Tortorello v. Reinfeld, 6 N.J. 58 (1950). Plaintiffs argue that it is within the class of cases governed by Fernandi v. Strully, 35 N.J. 434 (1961).

From the affidavits and deposition of plaintiff wife it appears that after the birth of her child and prior to her discharge from the hospital she was in extreme pain and her right side became stiff. She was told by defendants Goodman and Silber that these were after-effects of childbirth and would gradually disappear. For four months thereafter her right side would become stiff and hurt at the end of the day. On July 15, 1960 she consulted Dr. Emanuel Klosk for the condition. Two weeks later he advised her that in his opinion a vertebra was out of place as a result of the childbirth. He suggested hospitalization. She then consulted Dr. Philip Willner, an orthopedist, who advised her that the difficulty did not involve the vertebrae and suggested that she consult a neurosurgeon for possible nerve injury. On August 15, 1960 she consulted Dr. Lewis H. Loeser, a neurosurgeon, who prescribed medication for a "nerve infection." After about a month of his medication she felt "almost completely better." However, about November 18, 1960 the pain reappeared. She was then examined by Dr. Arthur S. Buckler, who prescribed medication for a nerve infection and, she said, advised her

that her trouble had been brought about by the administration of the saddle block anesthesia. She asserts that this was the first knowledge that she had of the cause of her difficulty. Specifically, she deposed:

"He further advised that no further spinal anesthetic could be employed on me as my nerve had been severely injured. He further indicated that my entire condition was attributable to a foreign object being placed into my body improperly."

While her affidavit does not point out in what respect the anesthetic was negligently administered, at the oral argument counsel for plaintiffs revealed that it would be their contention at the trial that the anesthetic "was placed in the wrong place."

Dr. Willner's notes on his first examination of Mrs. Rothman were to the effect that:

"The patient presents the cardinal findings of a peripheral neuritis secondary to a saddle block, to the right sciatic nerve; to the peraformis muscle, without any motor, sensory or reflex changes, have advised 1,000 m.g. B-12 three times a week, plus Darvon comp. one BID plus conservative measures."

On August 9, 1960, the date of her next and final visit, he made a note that:

"This patient has a nerve root irritation secondary to a pudendal block. I feel that she should be seen by a neurologist, being referred to same."

Dr. Willner stated, however, that he made no diagnosis, was not qualified to make a neurological diagnosis, and his notes were no more than his conclusions from the history given him by the patient. X-rays taken by him at the time were negative for bone pathology.

Dr. Loeser, the neurologist, deposed that he saw the patient on August 15, 1960 and, while his examination revealed no objective finding, she told him as part of the history that "there is an injury to the nerve caused by the saddle block."

He came to no definite conclusion but, based upon the history given, entertained a "suspicion that she might have had a neuritis from a spinal block * * *." He prescribed a drug ...

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