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Caravaggio v. DeAgostini

January 22, 2001


The opinion of the court was delivered by: Long, J.

Argued October 24, 2000

On certification to the Superior Court, Appellate Division.

The discovery rule, incorporating as it does a notion of simple justice, has been anything but simple in application, as evidenced by the amount of litigation it has spawned. Decades after its enunciation, lawyers and judges are still grappling with its application. This is another such case.


Plaintiff Patricia Caravaggio and her husband were seriously injured in a motorcycle accident on May 23, 1993. Mrs. Caravaggio's specific injury was a segmental fracture of the femur, also called the thighbone. She was taken by ambulance to Morristown Memorial Hospital where the defendant, Dr. Robert D'Agostini, an orthopedic surgeon, performed surgery to repair the bone. Dr. D'Agostini "reamed out" Mrs. Caravaggio's femur bone, inserted a rod manufactured by the Synthes Corporation in the hollow of the bone, and affixed the rod with screws through the bone at both ends to stabilize the fracture.

Mrs. Caravaggio was discharged from the hospital and underwent physical therapy at home, remaining under the care of Dr. D'Agostini who had previously explained to her that she could expect an average healing time of twelve weeks, and that among the complications possible were "infection, blood clots, blood loss or anemia, failure to heal, need for rod removal later, rod breakage." On June 15, 1993, Dr. D'Agostini modified the physical therapy prescription to permit as much weight-bearing on the injured leg as Mrs. Caravaggio could tolerate. On July 13, 1993, Dr. D'Agostini told Mrs. Caravaggio to increase the vigor of her physical therapy, noting that she should continue to use crutches and to bear weight on her injured leg. Two weeks later on July 28, 1993, Mrs. Caravaggio felt a "snap" in her leg while the physical therapist was bending her knee.

Dr. D'Agostini examined Mrs. Caravaggio at his office on August 4, 1993. An x-ray of the leg revealed that the rod had broken through the screw holes. Dr. D'Agostini told Mrs. Caravaggio that he was "very much surprised" that a rod manufactured by Synthes, "probably the best manufacturer of rods in the world", could break in eight weeks. According to D'Agostini,

I have had ... totally irresponsible people throw away their crutches, walk on these things and they never break.

I was shocked that the thing broke and so I told them [the Caravaggios] that was surprising. They were, as I – they can characterize their recollections, but it's my recollection that they were, you know, more mad at the physical therapist, that it had been the vigor or physical therapy bending the knee.

And I told them no, that that was not the case. That the physical therapist was doing what I told them to do and that in any case no single bend, no human being could take that rod and snap it, no physical therapist with a rod inside somebody's leg could cause that rod to snap unless there was something structurally wrong with it. (emphasis added).

Dr. D'Agostini explained to Mrs. Caravaggio that her injuries would now take longer to heal and could require additional surgery to replace the rod. First, however, he recommended bracing and conservative treatment to attempt to avoid additional surgery. Mrs. Caravaggio accepted his recommendation. She continued with follow-up visits, but by September 28, 1993, the doctor determined that her femur would not heal without further surgery.

In early October, Mrs. Caravaggio obtained a second opinion from an orthopedist for insurance purposes. That physician agreed with Dr. D'Agostini's recommendation of surgery and, although he indicated that perhaps Dr. D'Agostini might have chosen a thicker rod to implant, did not suggest directly or obliquely that Mrs. Caravaggio should question the medical care she received from Dr. D'Agostini. Mrs. Caravaggio continued in Dr. D'Agostini's care and he performed the second surgery on October 21, 1993, to replace the broken rod. In that surgery, he "reamed" the femur bone more extensively and inserted a thicker and longer rod.

After the second surgery, Dr. D'Agostini informed Mrs. Caravaggio that there was something wrong with the rod and that she should take it to the lawyer who was representing her in her lawsuit against the operator of the car that struck her. The rod was then sent to the hospital's pathology lab, and at some later date (not determined with specificity in the record) the rod was given to the attorney representing Mrs. Caravaggio in her ongoing auto negligence litigation.

After Mrs. Caravaggio's discharge, in May of 1994, her husband continued to be treated by Dr. D'Agostini well into the fall of 1995, over two and one-half years from the accident. During that period, Mr. and Mrs. Caravaggio both referred family and friends to him.

In the meantime, on July 28, 1994, Mrs. Caravaggio's counsel sent the rod to be analyzed by J. Stephen Duerr, President of Metuchen Analytical. Metallurgic tests revealed that the rod was not defective. The record is unclear exactly when that information was received, although it was certainly after July 1994.

In late 1994 or early 1995, Mrs. Caravaggio met a new attorney who suggested that she might have a medical malpractice claim. She retained that attorney who, in turn, referred her to her present counsel, who filed a complaint on her behalf against Dr. D'Agostini on September 15, 1995.

Dr. D'Agostini moved for summary judgment, arguing that Mrs. Caravaggio's complaint was barred by the expiration of the two year statute of limitations. The trial court ordered a discovery rule hearing as required by Lopez v. Swyer, 62 N.J. 267 (1973). After the hearing, at which the facts related in this opinion were established and presumably viewed in a light most favorable to Mrs. Caravaggio pursuant to R. 4:46-2(c), the court granted the motion, concluding that Mrs. Caravaggio knew or should have known that she had an actionable claim against Dr. D'Agostini no later than August 4, 1993:

[P]laintiff knew she suffered an injury on July 28 or 29, 1993. At that time she believed that the injury was caused by the physical therapist and she expressed that opinion to defendant on August 4, 1993, when she learned that the rod had broken.

Arguably, defendant's statement may have "lulled" plaintiff into believing that the wrongdoer was neither the physical therapist nor the defendant, because implicit in defendant's statement was an assurance that the physical therapy defendant ordered was actually proper.

Nevertheless, the court concluded that because Mrs. Caravaggio knew she was injured on August 4, 1993, and that "the injury was the product of someone's wrongdoing," summary judgment was appropriate because her cause of action accrued on that date and her complaint was filed two years and fifty-two days later.*fn1

The Appellate Division affirmed the trial court's judgment because "the judge's factual findings and conclusions of law [on the statute of limitations issue] are supported by sufficient evidence in the record and the applicable law." Caravaggio v. D'Agostini, No. A-91-98T5, slip op. at 4 (App. Div. November 15, 1999). According to the Appellate Division, and based on statements she made to Dr. D'Agostini about the physical therapist, Mrs. Caravaggio knew on August 4, 1993 that she had been wrongfully injured and that someone should be held accountable. We granted Mrs. Caravaggio's petition for certification on January 28, 2000, 164 N.J. 560 (2000), limited solely to the statute of limitations issue.*fn2 We now reverse.


N.J.S.A. 2A:14-2 gives a plaintiff a two year period from the accrual of his or her claim in which to file a malpractice action. At common law, there was no limit on the time in which a plaintiff could institute such litigation. Rothman v. Suber, 90 N.J. Super. 22 (App. Div. 1966) (citing Uscienski v. National Sugar Refining Co., 19 N.J. Misc. 240, 242 (C.P. 1941)). Since then, statutes of limitations have been adopted regarding all causes of action, in order to "promote repose by giving security and stability to human affairs." Wood v. Carpenter, 101 U.S. 135, 139, 25 L.Ed. 807 (1879). Their purpose is to penalize dilatoriness and serve as measure of repose. * * * When a plaintiff knows or has reason to know that he has a cause of action against an identifiable defendant and voluntarily sleeps on his rights so long as to permit the customary period of limitations to expire, the pertinent considerations of individual justice as well as the broader considerations of repose, coincide to bar his action. Where, however, the plaintiff does not know or have reason to know that he has a cause of action against an identifiable defendant until after the normal period of limitations has expired, the considerations of individual justice and the considerations of repose are in conflict and other factors may fairly be brought into play. [Farrell v. Votator Div. of Chemetron Corp., 62 N.J. 111, 115 (1973); Fernandi v. Strully, 35 N.J. 434, 438 (1961).]

The latter principle is embodied in the so-called "discovery rule." Vispisiano v. Ashland Chemical Co., 107 N.J. 416 (1987). The purpose behind the rule

"is to avoid harsh results that otherwise would flow from mechanical application of a statute of limitations." [Vispisiano, supra, 107 N.J. at 426]. Accordingly, the doctrine "postpon[es] the accrual of a cause of action" so long as a party reasonably is unaware either that he has been injured, or that the injury is due to the fault or neglect of an identifiable individual or entity. Id. at 426-27; accord Lynch v. Rubacky 85 N.J. 65, 70 (1981); Lopez, supra, 62 N.J. at 274. Once a person knows or has reason to know of this information, his or her claim has accrued since, at that point, he or she is actually or constructively aware "of that ...

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