For affirmance -- Chief Justice Hughes, Justices Sullivan and Pashman and Judge Conford. For reversal -- Justices Mountain, Clifford and Schreiber. The opinion of the Court was delivered by Conford, P.J.A.D., Temporarily Assigned. Clifford, J. (dissenting). Mountain and Schreiber, JJ., join in this dissenting opinion.
This is another medical malpractice case involving the proper application of the "discovery" rule to the defense of statute of limitations. See Lopez v. Swyer, 62 N.J. 267 (1973); Fox v. Passaic General Hospital, 71 N.J. 122 (1976), argued and decided simultaneously herewith, affirming 135 N.J. Super. 108 (App. Div. 1975).
Of the two basic issues presented on this appeal, our opinion in Fox, supra, is determinative of one. We there held that notwithstanding that plaintiff discovers his cause of action for malpractice prior to the expiration of two years from the date of the actionable conduct he nevertheless will ordinarily be allowed two full years from the date of such discovery to bring his action. 71 N.J. p. 126. This right was declared circumscribed only to the extent that delay in instituting the action beyond the initial two-year period after the actionable event could be found to have "peculiarly or unusually prejudiced the defendant" and the plaintiff had had a reasonable time left to bring the action between the time of discovery and the expiration of the said initial two-year period. Pp. 126-127.
The other broad issue presented here is whether the discovery rule is to be extended from cases involving foreign
objects left in the body and similar situations, exemplified by the progenitor case in this field, Fernandi v. Strully, 35 N.J. 434 (1961), to the entire range of medical malpractice, including improper treatment and diagnosis.
There is no dispute as to the operative facts in this case. For some years plaintiff Carmel Moran was treated by the defendant physicians for a chronic ulcerative colitis condition. Dr. Napolitano last treated Mrs. Moran on September 21, 1971 and Dr. Bellavia on October 8, 1971. More than three years later, on January 9, 1974, plaintiffs filed the present action, charging both doctors with improper and negligent examination, diagnosis and treatment.
The pertinent intervening facts are these: on October 13, 1971 Mrs. Moran came under the care of Dr. Peter Douvres who diagnosed her condition as severe chronic fulminating ulcerative colitis. He considered her condition so degenerated as to require prompt hospitalization, and soon thereafter he performed surgery to remove a considerable part of the large intestine. On March 16, 1972 plaintiff Michael Moran consulted counsel to discuss whether, in view of the drastic surgery performed by Dr. Douvres, the care previously provided by defendants constituted malpractice. Counsel in turn corresponded with Dr. Douvres for his opinion. On June 14, 1972 Dr. Douvres replied that, while he could not determine whether defendants were guilty of malpractice, it was his opinion that "the patient did not receive proper attention." Counsel considered this opinion equivocal and sought further expert medical advice. In December 1972 he obtained an opinion from another physician which positively assessed defendants' treatment as malpractice.
On January 9, 1973 plaintiffs' attorney wrote to defendants, told them that his medical expert informed him that they were guilty of malpractice, and suggested they refer the claim to their insurance carrier. After some correspondence between the attorney and the carrier suit was filed, as noted above, on January 9, 1974. Thereafter defendants filed
a motion for summary judgment based on the defense of the statute of limitations. The motion was denied.
Defendants then obtained leave to file an interlocutory appeal. In an unreported per curiam opinion, with one judge dissenting, the Appellate Division affirmed the judgment. Viewing the facts most favorably to plaintiffs, the court concluded that since plaintiffs first discovered their cause of action in June 1972, and suit was started within two years from that date, summary judgment was properly denied. Whether, as defendants argued, equitable considerations operated to preclude application of the discovery rule, was an issue which, in the court's view, "should await determination at a plenary trial and not be disposed of by way of summary judgment." The court further declared, however, that if the discovery rule did apply to the case at bar "we hold flatly that * * * the injured person has two years after the date of 'discovery' to institute suit." It noted that its views were in accord with the majority opinion in Fox v. Passaic General Hospital, 135 N.J. Super. 108 (App. Div. 1975), which we have reviewed in the companion appeal mentioned above.
The dissenter in the Appellate Division viewed the nature of plaintiffs' claim -- improper treatment and diagnosis -- as not falling within those classes of cases to which the discovery rule had theretofore been applied. He also pointed out that, even viewing the facts most favorably to plaintiffs, the basis of their claim was discovered before the limitations period (as measured from the last day of treatment) would have barred an action. While eschewing an inflexible rule that any claim discovered within the statutory time period must be pursued within it, he nevertheless considered the facts of this case as requiring such a determination. He stated: "* * * I do not see any equities whatever mandating the utilization of the so called 'discovery' rule." The dissent cited and relied on the reasoning of the dissenting Appellate Division opinion in Fox.
Leave to appeal to this court was granted October 14, 1975. 69 ...