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Lynch v. Rubacky

decided.: January 27, 1981.

ISABEL LYNCH, PLAINTIFF-APPELLANT,
v.
GERALD E. RUBACKY, M.D., DEFENDANT-RESPONDENT.



Wilentz, Sullivan, Pashman, Handler, Pollock, Clifford, Schreiber

Handler

The opinion of the Court was delivered by HANDLER, J.

This is a medical malpractice case involving the "discovery rule" doctrine as set forth in Lopez v. Swyer, 62 N.J. 267 (1973). The appeal presents again the perplexing issue of when, under N.J.S.A. 2A:14-2, a cause of action accrues for purposes of measuring the statutory period of limitations within which a personal injury suit must be filed. In this case, the trial court ruled that the plaintiff, who claims that she suffered injury as a result of the defendant physician's malpractice, failed to file her suit within two years of the time she should have "discovered" that she had an actionable claim for these injuries. Accordingly, the trial court dismissed the action. We are called upon to review the correctness of this decision.

I

The facts were developed at a hearing conducted by the trial court pursuant to Lopez v. Swyer, supra, to determine when plaintiff's cause of action accrued under the "discovery rule." Plaintiff, Isabel Lynch, fractured her ankle on December 30, 1972, when she slipped and fell down the front steps of her house. She immediately came under the care of defendant, Dr. Gerald E. Rubacky, at Mountainside Hospital in Montclair. He diagnosed plaintiff's injury as a compounded fracture of the right ankle (trimalleoler fracture) and proceeded initially to set the fracture through a closed reduction. An open reduction proved necessary, however, and a few days later, on January 4, 1973, Dr. Rubacky performed an operation to close the fracture; he inserted three pins in the ankle which was then placed in a cast.

Dr. Rubacky removed the cast from plaintiff's ankle in early March 1973, at which time she complained of "severe pain and

quite a bit of swelling." In April and May 1973, she continued to experience, in her words, "severe pain, indescribable pain that was keeping [her] awake at night and almost to the point of tears at times." Plaintiff had to use crutches, a cane or a walker to assist in walking. Nevertheless, defendant assured her that her condition was a natural part of the healing process, and during her May visit he instructed to her to "get rid of everything," advising her that she did not need anything to assist her walking because the ankle was healing.

At that time defendant also told plaintiff not to come back to see him until October. But, she returned in July because she "couldn't stand the pain any longer." Upon reviewing x-rays on this occasion, defendant informed plaintiff that one of the pins was out of place. As a result, at the end of July, plaintiff again underwent surgery for the removal of the pin. Plaintiff thereafter continued under defendant's care.

During the next several months, despite persistent pain and swelling and inability to place full weight on the injured ankle, plaintiff was told by Dr. Rubacky that she should return to her regular work as a hairdresser and that her condition was "part of the healing process and eventually it will go away." In January 1974, although Mrs. Lynch's complaints and symptoms had not abated, Dr. Rubacky told her that her ankle was completely healed and that there was absolutely nothing wrong with her; he said her problems were "all in [her] head and that [she] should . . . seek the attention of a psychiatrist." Still, he did not discharge her but stated that she should return in six months.

Plaintiff then made an appointment with another orthopedic surgeon, Dr. Peter Argiroff, who did not see her until February 1974. Dr. Argiroff took x-rays of her ankle and told her that, in his opinion, she would have to have another operation or "[her] ankle would never be any better." That operation was performed on February 21, 1974, and plaintiff's ankle was placed in a cast. She went for monthly checkups until the cast was

removed in May 1974. During this entire period of time Dr. Argiroff did not advise or otherwise intimate to plaintiff that Dr. Rubacky's medical treatment itself had actually caused or contributed to her condition. During the May visit, however, Dr. Argiroff informed her for the first time that in the operation performed by him in February, he had "removed a pin . . . in the joint and [that] it should not have been there." He also told plaintiff that "the first two operations were not done properly . . . ." He added that "he didn't want to get involved in any malpractice situation. He couldn't -- he didn't feel he wanted to point a finger at anyone."

Upon this record the trial judge concluded that plaintiff "by the exercise of reasonable diligence and intelligence should have known or discovered a basis for an actionable claim against the defendant no later than February of 1974." Because the complaint was filed more than two years beyond that date, in May 1976, the judge found the action to be time barred under N.J.S.A. 2A:14-2 and granted defendant's motion to dismiss. An appeal was taken by plaintiff and the Appellate Division affirmed the dismissal of plaintiff's complaint in an unpublished opinion. We granted certification on plaintiff's petition to determine whether the discovery rule was properly applied in this case. 82 N.J. 291 (1980). We conclude that it was not and now reverse.

II

Both parties in this case agree that because plaintiff was unaware of the true nature of her injuries during the course of her medical treatment by defendant, she was entitled to invoke the "discovery rule" to toll, for some length of time, the running of the two-year statute of limitations. The parties disagree, however, as to when under the circumstances of this case the statute of limitations was activated.

[1] The appropriate standard for resolving this kind of dispute was set forth in Lopez as follows:

This doctrine . . . provides that in an appropriate case a cause of action will be held not to accrue until the injured party discovers, or by the exercise of reasonable diligence and intelligence should have discovered that he may have a basis for an actionable claim . . . [or] knows or has reason to know that he has a right of redress. [62 N.J. at 272, 274.]

As emphasized in Lopez, the discovery rule centers upon an injured party's knowledge concerning the origin and existence of his injuries as related to the conduct of another person. Such knowledge involves two key elements, injury and fault. The Court in Lopez defined two classes of injured claimants whose ignorance or lack of knowledge concerning the nature and source of injury should not, without more, bar relief. In one, the person may be generally unaware of an injury until after the statutory period has expired. "In other cases," said the Court, "damages may be all too apparent, but the injured party may not know it is attributable to the fault or neglect of another." Id. at 274. This principle, with its dual emphasis upon fault as well as injury, was most recently repeated in Tevis v. Tevis, 79 N.J. 422, 432 (1979) (dictum) ("[W]hen a party is either unaware that he has sustained an injury or, although aware that an injury has occurred, he does not know that it is, or may be, attributable to the fault of another, the cause of action does not accrue until the discovery of the injury or facts suggesting the fault of another person").

In this case, the underlying facts are not actually in sharp dispute. The shortcoming of the determination below rests not so much upon the facts as determined by the trial court as upon the legal significance of these facts under the discovery rule, and more specifically their legal significance in terms of knowledge of fault as a constituent element of the discovery rule.

The trial court relied upon Burd v. New Jersey Telephone Company, 76 N.J. 284 (1978), a products liability case, which dealt with the question of proximate cause and the quality of a claimant's knowledge that will signal "the commencement of accrual of the cause of action." Id. at 291. The Court there explained that such knowledge exists when "plaintiff learns, or

reasonably should learn, the existence of that state of facts which may equate in law with a cause of action," id., (emphasis in original), and that the "basis" of such a cause of action, "is, of course, constituted solely by the material facts of the case." Id. at 291-292.

The Burd case is not to be viewed as a retreat from Lopez v. Swyer, supra, in the sense of either minimizing or rejecting knowledge of fault as a necessary component of a factual basis for a claim against another. The Burd decision fully embraces Lopez, as well as the medical malpractice decisions cited therein, which have contributed to the evolution of the discovery rule and have consistently ...


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