On appeal from the Superior Court, Law Division, Essex County.
Pressler, Gaulkin and Ashbey. The opinion of the court was delivered by Pressler, P.J.A.D.
Plaintiff Virginia Hernandez, general administratrix and administratrix ad prosequendum of the estate of Reinaldo Hernandez, appeals on leave granted from a summary judgment dismissing, on limitations grounds, her wrongful death cause of action against defendants N. K. Mittra and Teresita Brillantes and directing, in respect of her survivorship action against those defendants, that a preliminary Lopez hearing*fn1 be held. We reverse since we are satisfied that plaintiff's initial resort to the fictitious-defendant practice under R. 4:26-4 was proper, that her motion to amend her complaint to substitute the names of these defendants for John Doe designations was timely under the circumstances and, hence, that there is no limitations impediment to her proceeding against these defendants on both the wrongful death and the survivorship counts of her complaint.
Plaintiff is the widow of Reinaldo Hernandez who was brought to the emergency room of St. James Hospital in Newark just after midnight on October 9, 1982. He came under the immediate care of defendants Lawrence Dalglish, the emergency room physician and Michael Bercik, an orthopedist, who ascertained that Hernandez had been struck with a baseball bat on his arms and back. They arranged for a consultation with defendant Mittra, a general surgeon, who examined Hernandez at 2:00 a.m., noted that chest and abdominal injuries had to be ruled out, and recommended the administration of various tests in the morning. During the balance of the night,
Hernandez's condition rapidly deteriorated, and Dr. Mittra, who was reached by telephone, prescribed various medications and procedures. Dr. Brillantes, who was apparently on duty that night, both administered Mittra's telephone orders and took other medical steps in response to Hernandez's worsening situation. She notified Dr. Mittra at 6:15 a.m. that Hernandez had been transferred to an intensive care unit. Dr. Mittra attended Hernandez at 7:00 a.m., performing an abdominal tap which established the presence of blood in the abdominal cavity. He continued to work on Hernandez until 8:30 a.m. when he then had him taken to the operating room for performance of an exploratory laparotomy. The surgery showed a laceration of the spleen attended by massive intra-abdominal bleeding. Hernandez died at 9:55 a.m.
This complaint was filed on October 2, 1984, just one week before the expiration of the statute of limitations. Named as defendants were the St. James Hospital, Dalglish, Bercik and eleven fictitious defendants. Six of the fictitious defendants were jointly described as "physicians employed by, or on the staff of" the hospital who "were negligent and careless in the diagnosis of plaintiff's decedent's condition and in the treatment rendered and did thereby deviate from accepted medical standards. . . ." Five months later, in March 1985, plaintiff moved to amend the complaint in order to name Dr. Mittra as a defendant and, in June 1985, she moved to amend to name Dr. Brillantes as a defendant. Each of these motions was granted, and each of the defendants answered, Mittra on July 24, 1985 and Brillantes on October 25, 1985. During the year-and-a-half following the filing of the original complaint, the matter proceeded through an active pleading stage involving the filing of numerous cross-claims by the various defendants. Extensive discovery ensued as well, in large part reflected by the filing of numerous discovery motions. In March 1986 defendants Mittra and Brillantes each filed a motion for summary judgment, claiming that the action was barred by reason of the two-year statute of limitations, N.J.S.A. 2A:14-2. We granted leave to
appeal from the order granting those motions in respect of the wrongful death claim and directing a threshold Lopez hearing on the survivorship claim.
At the outset, we express our agreement with the trial judge's conclusion that the wrongful death action, not being an accrual cause of action, is not subject to the discovery rule of deferral of the accrual of the cause. See Presslaff v. Robins, 168 N.J. Super. 543 (App.Div.1979). The issue then, as the trial judge correctly perceived it, was not whether plaintiff first knew or should have known of her cause of action after the expiration of two years from the date of her husband's death but rather whether she properly relied upon and resorted to the fictitious-defendant rule when she filed her complaint within that time period. We disagree with the trial judge's conclusion that she did not.*fn2
It is important to distinguish, on the one hand, between the discovery rule by which the accrual date of a cause of action is deferred and, on the other, the fictitious-defendant rule. This is so since the discovery rule clearly can be of no avail here to save the wrongful death claim. The fictitious-defendant rule can, however, since it is well settled that the substitution of an identified defendant for a fictitious defendant after the statute of limitations has run may relate back to the date of the filing of the original complaint. See Farrell v. Votator Div. of Chemetron Corp., 62 N.J. 111, 120-123 (1973). Viviano v. CBS, Inc., 101 N.J. 538, 546-548 (1986), makes clear the distinction between these two mechanisms, explaining that
the discovery rule applies when a party, by the exercise of reasonable diligence, does not know he has a cause of action until some time after the infliction of the injury, but that the fictitious-defendant rule applies when a party knows or has reason to know his injury has been negligently inflicted but cannot, at the time of injury or within a reasonable time thereafter, ascertain the identity of the wrongdoer. We are satisfied that at the time this complaint was originally filed, plaintiff was chargeable with knowledge of her cause of action and had indeed acted on that knowledge. What she did not then know was the identity of each person whose negligence contributed to causing the injury and the precise nature of each such contributing act of negligence. Following what we believe the import of Viviano to be, we conclude that the circumstances were thus appropriate here for invocation of R. 4:26-4, that ...