The opinion of the court was delivered by: Long, J.
On certification to the Superior Court, Appellate Division.
When the discovery rule was first announced in Fernandi v. Strully, 35 N.J. 434 (1961), and later elucidated in Lopez v. Swyer, 62 N.J. 267 (1973), it seemed rather straightforward. Decades later, lawyers and judges are still grappling with the application of this principle of simple justice to the myriad of circumstances that arise in everyday life. This is another such instance.
Plaintiff Olga Martinez is the mother of three children, two of whom were fathered by Carl Farrish, a forklift driver. On April 3, 1993, Farrish was badly beaten in a street brawl and was admitted to defendant Cooper Hospital. On April 4, a CT scan of his abdomen disclosed intestinal tract inflammation (edema) and accumulating fluid. The doctor recommended a follow-up CT scan because the first was opaque with respect to the intestinal tract; however, no follow-up scan was conducted until April 6. The second CT scan revealed a large amount of intraperitoneal fluid, as well as free peritoneal air. The doctor noted that a perforated viscus was a strong possibility. That day, surgeons operated and found a small bowel perforation and three liters of peritoneal fluid within the abdominal cavity. The fluid was removed and the perforation repaired, but Farrish died on April 8, 1993. The death certificate, reflecting an autopsy report, noted that the immediate cause of death was peritonitis due to perforation of the small intestine; that the "injury" was caused by a beating; and that Farrish's death was due to a "homicide."
Ms. Martinez, who was married to someone else at the time of Farrish's death, first learned that Farrish was in the hospital on April 5 when his then fiancee called to tell her about the beating. On April 8, Ms. Martinez was able to take the children to see their father. Five minutes after they arrived at the hospital, the doctor told them that while the hospital staff "did all they could," Farrish had just died due to a small hole in his intestines.
According to Ms. Martinez, the doctor's explanation about the cause of death, a hole in the intestines, meant nothing to her. When she finally saw Farrish, he looked like a "monster" because his face and arms were swollen. She believed that his condition was the result of the severe beating combined with the fluids that the doctors had administered. Ms. Martinez attended the funeral with her children but did not speak to any family members about the cause of Farrish's death.
Ms. Martinez always believed that the death was a homicide. She relied on the doctor's assurance that he did all that he could, on the death certificate and autopsy that concluded that the death was due to homicide, and on a newspaper article that stated Farrish had died of the injuries sustained in the fight. She never inquired further into the circumstances surrounding his death because she never suspected medical negligence.
In July 1993, Ms. Martinez moved to Puerto Rico with her children. On April 24, 1996, she received a letter from her present counsel, John Eichmann. Eichmann informed her that evidence had been brought to his attention that revealed that Farrish's death may have been the result of negligence. Eichmann also stated that, "[i]f his death was the result of the malpractice of the hospital, there could be a substantial sum of money due to his two children as his natural survivors." The evidence to which Eichmann referred was an anonymous letter, postmarked October 12, 1995, received by Farrish's fiancee, that stated:
I am writing you about something that has been bothering me for a long time. I should have written two years ago.
On April 3, 1993, I was working the overnight shift at Cooper Hosp. and witnessed something that was wrong and I believe contributed to the death of a man named Carl Farrish.
At about 12:30 am I noticed a tall black cop about 50 years old sitting with another stocky black man who appeared to be in great pain and holding his belly. Over the next 6 hours the injured man moaned constantly, also twice he vomited blood. The cop told the ER nurse, but the man still wasn't seen by a doctor for at least five or six hours more. I believe this delay contributed to the man's death. I feel the hospital was very negligent in their lack of concern for the obviously injured man. I'm sorry for your loss and wish you good luck.
Farrish's fiancee and his mother already harbored suspicions surrounding his death. Because Farrish was a healthy man, they thought it odd that he suddenly developed all of these serious problems, even after sustaining the beating. However, they never discussed this with Ms. Martinez or with anyone at the hospital. For Ms. Martinez, the ...