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Savage v. Old Bridge-Sayreville Medical Group

Decided: November 18, 1992.


On appeal from the Superior Court of New Jersey, Law Division, Middlesex County.

Dreier, Skillman and Villanueva. The opinion of the court was delivered by Dreier, J.A.D.


Plaintiff, Suzanne Savage, appeals from the dismissal of her medical malpractice claims against defendants, Old Bridge-Sayreville Medical Group, P.A. and Prystowsky Medical Group, for prescribing and administering a tetracycline derivative drug to her when plaintiff was a small child. When plaintiff's permanent teeth erupted, it was evident that they were significantly discolored. We know now that this is a typical problem with the administration of certain tetracycline drugs to young children. See Apgar v. Lederle Laboratories, 123 N.J. 450, 452, 588 A.2d 380 (1991); Feldman v. Lederle Laboratories, 97 N.J. 429, 436-437, 479 A.2d 374 (1984).

When plaintiff was still a small child, her mother was told by the child's dentist that some medication the child had been given was the cause of the tooth problem, but the dentist never indicated to the mother that prescribing the medication was improper. In fact, there is no indication that the dentist himself knew that the untoward effect of the medication was known to the medical community at the time it had been prescribed. Even as a child, when plaintiff would ask her mother why she could not have white teeth, her mother would tell her that her teeth were discolored as a result of medication the child had taken as an infant when she was very sick and it had been necessary to give her medication.

Plaintiff's certification shows that in 1988, when plaintiff was twenty-eight years old, her mother told her about a newspaper

advertisement regarding discolored teeth. They inquired further, consulted with the attorneys who had placed the ad, and learned for the first time that the medication that caused the discoloration had been tetracycline and that it may have been improper for the physician to have prescribed the drug to small children.

Plaintiff filed her complaint against the two medical groups who had treated her as a child within two years of this discovery. The trial Judge, however, granted defendants' motions for summary judgment based upon Apgar v. Lederle Laboratories, supra. The trial Judge determined specifically that plaintiff was "armed with the facts that would have enabled her to explore in the legal, scientific or medical community whether or not she had an actionable claim." She further stated that it made no difference that "plaintiff was unaware that it was improper for a pediatrician to prescribe the medication." Consequently, the Judge determined that the discovery rule did not apply and that plaintiff's claim was barred by the applicable statute of limitations.

The discovery rule is equitable in origin. Lopez v. Swyer, 62 N.J. 267, 273, 300 A.2d 563 (1973). It "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." Id. at 272, 300 A.2d 563. A cause of action will not accrue unless an injured party knows or has reason to know that he or she has a right of redress. Ibid. Cf. Lynch v. Rubacky, 85 N.J. 65, 70, 424 A.2d 1169 (1981).

The cases under the discovery rule fall into three categories. First is the classic case of a foreign object left in a patient's body, producing no symptoms or insufficient symptoms to warrant further investigation until after the two year period of limitations has expired. See Fernandi v. Strully, 35 N.J. 434, 173 A.2d 277 (1961). See also Graham v. Gielchinsky, 241 N.J. Super. 108,

574 A.2d 496 (App.Div.1990), aff'd, 126 N.J. 361, 599 A.2d 149 (1991); Fox v. Passaic Gen'l Hosp., 71 N.J. 122, 363 A.2d 341 (1976); Tramutola v. Bartone, 63 N.J. 9, 304 A.2d 197 (1973).

In the second type of case, plaintiff knows the injury has occurred but he or she does not know the cause of the injury. See Vispisiano v. Ashland Chem. Co., 107 N.J. 416, 429-432, 527 A.2d 66 (1987) (plaintiff's headaches were attributed to an earlier car accident and work stress rather than chemical exposure at work). Vispisiano distinguishes Burd v. New Jersey Telephone Co., 76 N.J. 284, 386 A.2d 1310 (1978), in which the plaintiff had actually made the causal connection more than two years prior to commencing suit. ...

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