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Lopez v. Swyer

Decided: February 20, 1973.

MARIA LOPEZ, A/K/A MARY AND MARIANTONIA LOPEZ, AND FRANK LOPEZ, HER HUSBAND, PLAINTIFFS-RESPONDENTS,
v.
ALFRED J. SWYER, M.D., DEFENDANT-APPELLANT, AND MILTON DANON, D.O., ROBERT OSDER, D.O., AND HAROLD STRICKER, D.O., DEFENDANTS-RESPONDENTS



For affirmance and remandment -- Chief Justice Weintraub, Justices Jacobs, Proctor, Hall and Mountain, and Judges Conford and Sullivan. For reversal -- None. The opinion of the Court was delivered by Mountain, J.

Mountain

Plaintiff, Maria Lopez, brought suit seeking damages for personal injuries allegedly attributable to the negligence and other tortious misconduct of four defendants, all of whom are physicians. The complaint charged medical malpractice, fraud and conspiracy. Her husband, Frank Lopez, joined as plaintiff, seeking damages per quod.

All defendants moved for summary judgment. As to defendant, Swyer, the motion was granted; the motions of the other three defendants were denied. Plaintiffs and the unsuccessful defendants sought leave to appeal. The Appellate Division reserved decision on these motions, at the same time remanding the case to permit the taking of the depositions of all defendants -- plaintiffs' depositions were already before the court -- to be followed by reargument before the trial judge. At the reargument the trial court granted summary judgment in favor of all defendants. Upon plaintiffs' appeal, the Appellate Division reversed and remanded the suit for trial as to all parties. 115 N.J. Super. 237 (1971). Of the several defendants, Swyer alone sought certification, which we granted. 59 N.J. 361 (1971). Accordingly we deal only with the plaintiffs' claims against him; we do not pass upon any of the issues pertaining to the other three defendants.

The facts are set forth fully in the opinion of the Appellate Division, 115 N.J. Super. at 241-245, and will be only briefly restated here.*fn1 Following a radical mastectomy for breast cancer, performed by a surgeon who is not involved in this case, Mrs. Lopez's personal physician, the defendant Dr. Milton Danon, referred his patient to the defendant Dr. Alfred J. Swyer, a radiologist, for radiation therapy. The latter administered x-ray treatments daily except Sundays

from January 8 to February 13, 1962. Mrs. Lopez's reaction to this course of therapy is described in detail in the opinion below, where it is fairly characterized as having been "dramatically calamitous." She suffered severe burns and was constantly plagued with pain and nausea. Necrotic ulcers appeared, requiring surgery. The burns produced suppuration from the surgical incision. She developed radiation fibrosis of the lung and suffered spontaneous rib fractures. Upon 15 separate occasions hospitalization was required. Following the radiation administered by Dr. Swyer, she was treated frequently and regularly until early 1966 by Dr. Danon and by his office associates, Dr. Osder and Dr. Stricker, who are also defendants. In 1966 the relationship ended and plaintiff sought medical assistance elsewhere. In March, 1967, while in a hospital for reconstructive surgery, Mrs. Lopez overheard a doctor who had been examining her say to some other doctors who were present, "And there you see, gentlemen, what happens when the radiologist puts a patient on the table and goes out and has a cup of coffee." This was, she says, her first intimation that Dr. Swyer had been negligent.

This suit was commenced September 18, 1967. Dr. Swyer is charged with having been negligent in administering radiation. Doctors Danon, Osder and Stricker are charged with negligence in that they gave bad advice, with having falsely reassured the plaintiffs and with having concealed knowledge, which it is alleged they possessed, of Dr. Swyer's alleged malpractice. It is also asserted that all four physicians conspired together to effect this concealment.

We agree with the Appellate Division that the most difficult of the questions presented has to do with the application of the statute of limitations as it relates to plaintiffs' claim for negligence against Dr. Swyer. As will be seen from what is said above, his last contact with Mrs. Lopez was in 1962 and suit was not commenced until 1967. The statute applicable to personal injury claims requires that they be brought within two years of the accrual of the cause of action.

N.J.S.A. 2A:14-2. Faced with this time problem, plaintiffs seek to avail themselves of the so-called "discovery" rule. This doctrine, of which more will be said below, provides that in an appropriate case a cause of action will be held not to accrue until the injured party discovers, or by an exercise of reasonable diligence and intelligence should have discovered that he may have a basis for an actionable claim.

The Appellate Division concluded that the trial court had erred in granting Dr. Swyer's motion for summary judgment and as to this we agree, substantially for the reasons given. That court's decision also directed a remand for a full trial at which there would be submitted to the jury the question of the alleged negligence of all the defendants, the fraud charged against Danon, Osder and Stricker, the alleged conspiracy, "together with the question as to when plaintiffs knew or should reasonably have known the nature of Maria's illness and its causal relationship with the alleged negligence." 115 N.J. Super. at 252. Referring now only to plaintiffs' negligence claim against Swyer, the obvious purpose of submitting to the jury the issue embraced in the words last quoted is to elicit a factual determination upon which to rest a decision as to whether or not the statute of limitations may be interposed as a bar to the action. While we entirely agree with the views expressed by the court below leading to the conclusion that there should be a remand for the purposes set forth above, we have concluded that the direction to the trial court upon such remand should be modified in one important respect. This Court seems never to have deliberately considered the precise point, but we now hold that whenever a plaintiff claims a right to relief from the bar of the statute of limitations by virtue of the so-called "discovery" rule, the question as to whether such relief is properly available shall be deemed an issue for determination by the court rather than by the jury.

The discovery rule was first announced by this Court in Fernandi v. Strully, 35 N.J. 434 (1961). There, in the course of an operation, a wing nut had been negligently left in the plaintiff's abdomen. Its presence was not discovered until more than two years thereafter. We held that the two-year statute of limitations did not begin to ...


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