Michels, Morgan and Milmed. Morgan, J.A.D. (dissenting).
Plaintiff appeals from a summary judgment entered in favor of defendants in the Law Division on the ground that plaintiff's claim was barred by the statute of limitations.
Plaintiff was admitted on October 25, 1970 to defendant Passaic General Hospital by Dr. Peter J. DeBell. A cholecystectomy was performed by Doctor DeBell on October 26, 1970. The next morning Doctor DeBell changed the dressing covering the incision, at which time plaintiff observed a drain in the incision. Frequent changes of the dressing were necessary in order to absorb the fluid draining from the incision. After a few days Doctor DeBell shortened the length of the drain. Thereafter, on or about October 30, 1970 the nurses who were changing the dressing were unable to locate the drain. The following morning plaintiff informed Doctor DeBell that the drain was missing, and he assured her that "[i]t didn't matter. It was going to come out in a day or two anyway."
Plaintiff was discharged from Passaic General Hospital on November 3, 1970 but continued to feel miserable, complaining that she felt something jabbing inside of her stomach. She developed a fever which she thought was due to the flu. When her fever became very high and her pain more severe she returned to Doctor DeBell, who diagnosed her condition as a post-operative infection and arranged for her to be readmitted to Passaic General Hospital the following day.
Plaintiff re-entered the hospital on November 17, 1970, at which time Doctor DeBell by operative intervention drained the intra-abdominal abscess and reinserted another drain in the incision. Plaintiff was discharged from the hospital on November 30, 1970 with instructions to return to Doctor DeBell for follow-up care. Plaintiff did so. When Doctor DeBell removed the drain sometime in December 1970 plaintiff told Doctor DeBell that she still had pain in the lower portion of her abdomen and suggested to him that perhaps the original drain might still be inside her body. Doctor DeBell reassured her that it was not, specifically telling her that he had looked for the drain during the second operation and that "it wasn't there."
The incision, however, continued to drain, causing plaintiff severe pain. Finally, on February 22, 1971 she went to the Emergency Ward of the Chilton Memorial Hospital where x-rays revealed the presence of a foreign body in her right mid-abdomen. Arrangements were immediately made for plaintiff to enter St. Joseph's Hospital that same day. On March 2, 1971 another abdominal operation was performed by another surgeon, and the original drain was removed from plaintiff's abdomen. Plaintiff was discharged on March 7, 1971.
On March 31, 1971 plaintiff filed suit against Doctor DeBell, charging him with medical malpractice arising out of his failure to locate the drain and remove it during the course of his post-operative care and treatment. Following the settlement of the claim against Doctor DeBell, plaintiff instituted this action against Passaic General Hospital and one of its nurses, Guadalupe Olivar, on December 1, 1972, charging them generally with negligence in her post-operative treatment and care. Thereafter the complaint was amended to join as a defendant Emilia Layugan, another nurse employed by the hospital, who rendered care to plaintiff following her first operation.
Prior to the selection of a jury defendants moved for summary judgment on the ground that plaintiff had failed to
institute suit within the time prescribed by the statute of limitations. The trial judge granted defendants' motions, holding that the discovery rule did not apply in view of the particular fact situation presented, and therefore the statute commenced to run from the date of injury rather than from the date plaintiff knew that the drain was in her abdomen. We disagree.
The discovery rule, which was first announced by our Supreme Court in Fernandi v. Strully, 35 N.J. 434 (1961), provides that in an appropriate case a cause of action will not be held to accrue until the injured party discovers or by an exercise of reasonable diligence and intelligence should have discovered that a basis for an actionable claim exists. Although the Fernandi decision confined itself to foreign body malpractice actions, subsequent decisions have gone much further, applying the discovery doctrine to medical malpractice actions involving claims other than foreign objects in the body. See Lopez v. Swyer, 62 N.J. 267, 273 (1973); Yerzy v. Levine, 108 N.J. Super. 222 (App. Div. 1970), aff'd as mod. 57 N.J. 234 (1970).
While we recognize that it is not every belated discovery that will justify lifting the bar of the statute of limitations, we are satisfied from a fair consideration of all of the relevant facts and circumstances that plaintiff was equitably entitled to the benefit of the rule. Although plaintiff observed that the drain was missing when the nurse changed the dressing on October 30, 1970, and while she suspected that it might be inside her thereafter, she did not know nor did she have reason to know of the existence of this object in her abdomen until the x-ray was taken on February 22, 1971 and it was removed by subsequent surgical intervention on March 2, 1971. Whatever suspicion she may have had as to the existence of this fact was allayed by Doctor DeBell, particularly when he told her sometime in ...