(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in
the interests of brevity, portions of any opinion may not have been summarized).
Argued October 24, 2000 -- Decided January 22, 2001
LONG, J., writing for a Majority of the Court.
This case involves application of the discovery rule in a medical malpractice action where the plaintiff files
a complaint fifty-two days beyond the two year statute of limitations.
Plaintiff Patricia Caravaggio and her husband were seriously injured in a motorcycle accident on May 23,
1993. Mrs. Caravaggio underwent emergency surgery to repair a broken femur bone. Dr. D'Agostini performed
the surgery, inserting a metal rod into Mrs. Caravaggio's femur to stabilize the fracture. Upon being discharged,
Mrs. Caravaggio pursued physical therapy at home. Subsequently, Mrs. Caravaggio was instructed by Dr.
D'Agostini to bear weight on her injured leg and to increase the “vigor” of her physical therapy. On July 28, 1993,
Mrs. Caravaggio experienced a “snap” during therapy, later determined to be a breakage of the rod.
After examining Mrs. Caravaggio on August 4, 1993, Dr. D'Agostini advised her that he could not
understand how the rod, manufactured by Synthes Corporation, could have broken in eight weeks. He further
commented that the rod could not have broken “unless there was something structurally wrong with it.” On his
advise, Mrs. Caravaggio underwent conservative treatment. But on September 28, 1993, Dr. D'Agostini
recommended additional surgery. After obtaining a second opinion, Mrs. Caravaggio underwent the recommended
surgery, also performed by Dr. D'Agostini. This time, Dr. D'Agostini inserted a longer, thicker rod and took
additional precautions with the surgery.
On September 15, 1995, after learning through metallurgical tests that the rod in question was not
defective, and after consultation with legal counsel, Mrs. Caravaggio filed a malpractice complaint against Dr.
D'Agostini. Dr. D'Agostini moved for summary judgment.
The trial court, after a discovery rule hearing pursuant to Lopez v. Swyer,
62 N..J. 267 (1973), held that
plaintiff's claim was barred by the two year statute of limitations. In an unreported decision, the Appellate Division
affirmed.
The Supreme Court granted defendant's petition for certification.
HELD: Plaintiff's complaint was filed within the two year statute of limitations under presently existing
standards governing the discovery rule. Plaintiff acted in a reasonably objective manner in filing her complaint after
metallurgical tests revealed that the rod was in fact not defective.
1. 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. The accrual of that action is subject to the “discovery rule.” The question in a discovery rule
case is whether the facts presented would alert a reasonable person, exercising ordinary diligence, that he or she was
injured due to the fault of another. The rule requires that a plaintiff has a duty to act once he or she has knowledge
of both the injury and that another is at fault. There is a class of cases, however, where the plaintiff has knowledge
of both of these critical factors, but is not aware that a third party may also be at fault. In that case, plaintiff has two
full years from the date he or she discovers evidence of the third party's possible complicity. (Pp. 8-16)
2. Plaintiff had no reason to doubt her physician's assessment that there was probably something wrong with the
metal rod prior to actual examination of the rod. This is particularly so when the plaintiff was advised prior to
surgery that rod breakage was a possible complication of properly performed surgery. Complications resulting from
surgical procedures do not automatically implicate medical malpractice. To hold otherwise would be to pit “patients
against their physicians, at a time at which they have no reason to doubt their physicians, in order not to risk losing
their cause of action altogether.” (Pp. 17-21)
Judgment of the Appellate Division is REVERSED and the matter is REMANDED to the Law Division
for proceedings consistent with this opinion.
JUSTICE LaVECCHIA, dissenting, contends that plaintiff knew of her injury on August 4, 1993, and
knew the identity of the three parties that could have been responsible: the doctor, the therapist and the rod
manufacturer. This was sufficient information to lead a reasonable person to pursue a claim, and plaintiff's failure
to do so within two years of that date should bar her action.
CHIEF JUSTICE PORITZ and JUSTICES STEIN, COLEMAN, and ZAZZALI join in JUSTICE LONG'S
opinion. JUSTICE LaVECCHIA filed a separate dissenting opinion in which JUSTICE VERNIERO joins.
SUPREME COURT OF NEW JERSEY
A-
114 September Term 1999
PATRICIA CARAVAGGIO,
Plaintiff-Appellant,
and
ROBERT CARAVAGGIO, her
husband,
Plaintiff,
v.
ROBERT D'AGOSTINI, M.D.,
Defendant-Respondent,
and
MORRISTOWN MEMORIAL HOSPITAL,
and XYZ CORPORATION, (said
name being fictitious and
presently unknown),
Defendants.
Argued October 24, 2000 -- Decided January 22, 2001
On certification to the Superior Court,
Appellate Division.
Charles S. Lorber argued the cause for
appellant (Mandelbaum, Salsburg, Gold,
Lazris, Discenza & Steinberg, attorneys).
Melvin Greenberg argued the cause for
respondent (Greenberg Dauber Epstein &
Tucker, attorneys; Mr. Greenberg and Stephen
O. Mortenson, on the briefs).
The opinion of the Court was delivered by
LONG, J.
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.
I
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.
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.See footnote 22 We now reverse.
II
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 state of facts which may equate in
law with a cause of action.” Burd v. New
Jersey Tel. Co.,
76 N.J. 284, 291 (1978).
[Abboud v. Viscomi,
111 N.J. 56, 62-63
(1988).]
“The linchpin of the discovery rule is the unfairness of barring
claims of unknowing parties.” Mancuso v. Neckles,
163 N.J. 26,
29 (2000).
In Baird v. American Med Optics,
155 N.J. 54 (1998), we
articulated that principle more fully:
Critical to the running of the statute is the
injured party's awareness of the injury and
the fault of another. Savage v. Old Bridge-
Sayreville Medical Group, P.A.
134 N.J. 241,
243 (1993). The discovery rule prevents the
statute of limitations from running when
injured parties reasonably are unaware that
they have been injured, or, although aware of
an injury, do not know that the injury is
attributable to the fault of another. Tevis
v. Tevis,
79 N.J. 422, 432 (1979).
[Id. at 66.]
The question in a discovery rule case is whether the facts
presented would alert a reasonable person, exercising ordinary
diligence, that he or she was injured due to the fault of
another. The standard is basically an objective one _ whether
plaintiff “knew or should have known” of sufficient facts to
start the statute of limitations running. Baird, supra, 154 N.J.
at 72.
That does not mean that the statute of limitations is tolled
until a plaintiff has knowledge of a specific basis for legal
liability or a provable cause of action. Savage v. Old Bridge-
Sayreville Medical Group, P.A.
134 N.J. 241, 248 (1993). It does,
however, require knowledge not only of the injury but also that
another is at fault. Id. at 246; Lynch, supra, 85 N.J. at 70.
Both are critical elements in determining whether the discovery
rule applies. For that analysis, it has been held that
plaintiffs are to be divided into classes: those who do not know
that they have been injured and those who know they have suffered
an injury but do not know that it is attributable to the fault of
another. Lopez, supra, 62 N.J. at 274. When a plaintiff's claim
falls within the latter class her cause of action does not accrue
until she has knowledge of the injury and that such injury is the
fault of another.
In many cases, knowledge of fault is acquired simultaneously
with knowledge of injury. Fault is apparent, for example, where
the wrong tooth is extracted during surgery. Tramutola v.
Bortone,
118 N.J. Super. 503, 512-13 (App. Div. 1972), or where a
foreign object has been left within the body after an operation.
See Fernandi, supra, 35 N.J. at 438 (holding that period of
limitations on a patient's negligence cause of action began to
run when the patient knew or had reason to know about the foreign
object left in her body). In other cases, however, a plaintiff
may be aware of an injury but not aware that the injury is
attributable to the fault of another.
In Lopez, supra, 62 N.J. at 271, for example, the plaintiff
suffered from severe burns, pain, and nausea after undergoing
radiation therapy following a radical mastectomy for breast
cancer. Plaintiff's husband had previously been told by a
physician that “this was not malpractice. This sometimes
happens.” Lopez v. Swyer,
115 N.J. Super. 237, 244 (App. Div.
1971). While Ms. Lopez was being treated for her symptoms by
another doctor, she overheard him say to colleagues, “[a]nd there
you see, gentlemen, what happens when the radiologist puts a
patient on the table and goes out and has a cup of coffee.”
Lopez, supra, 62 N.J. at 271. The Appellate Division reversed
the trial court's grant of summary judgment for the radiologist,
and this Court affirmed. Although Ms. Lopez knew that her burns
were caused by the radiation therapy, the record did not reveal
that she knew or should have known, prior to overhearing the “cup
of coffee” statement, of the causal connection between her
physician's negligent treatment and her injury. Thus her
complaint, filed slightly over five years after her injury, but
within two years of the “cup of coffee” statement, was ruled
timely.
Likewise, in Lynch, supra, 85 N.J. at 67-68, the plaintiff
injured her ankle and was operated on by the defendant. When she
did not improve and suffered great pain and disability, the
defendant continually assured her that her condition was due to
the original injury and the healing process. It was not until
after the statute of limitations expired that another physician
suggested that the plaintiff's problem was due to the defendant's
negligence. Id. at 69. We held that “all of the factors
militating against adequate knowledge of physician fault” were
present in the case. Id. at 77. Included were the plaintiff's
faith in the defendant, his reassurances that the pain and
swelling were part of the healing process, and the fact that a
physician who the plaintiff later consulted did not suggest the
defendant's medical negligence until after the statute had run.
Ibid. We thus held her action to be timely.
“A sub-category of the 'knowledge of fault' cases is that in
which a plaintiff knows she has been injured and knows the injury
was the fault of another, but does not know that an additional
party was also responsible for her plight.” Martinez v. Cooper
Hosp.
163 N.J. 45, 54 (2000) (citing Savage, supra, 134 N.J. at
243). In Martinez, the plaintiff's fiancee, Carl Farrish, was
badly beaten in a street fight and died at the hospital shortly
thereafter. The plaintiff knew of his injury and that it was the
fault of another - the person who administered the beating.
Indeed, Farrish's death certificate and accompanying publicity
reflected that the death was a homicide. In addition, the
physician at the hospital told the plaintiff “they did all they
could.” Id. at 49. Because the plaintiff was not present at the
hospital, she did not know that, despite the fact that Farrish
was in extremis, he waited for many hours before he received any
medical treatment. On those facts, we held that the plaintiff
“had no reason to suspect malpractice”, id. at 57, until her
lawyer was notified, in an anonymous letter, of what occurred at
the hospital on the night of the beating. Thus, the complaint
filed three and one-half years after Farrish's death, but within
two years of the anonymous letter, was timely. In effect,
Martinez reaffirmed that a cause of action may accrue against
different defendants at different times.
Savage is another good example of that principle. In
Savage, the plaintiff filed a medical malpractice action against
physicians who had administered tetracycline to her in early
childhood. The drug apparently discolored her teeth. The
plaintiff became twenty-one in 1981. Until then the statute was
tolled by reason of her age. She filed a complaint in 1989
alleging she was unaware until 1988 that her injury was due to
the fault of her doctors. The trial judge ruled that because she
had all the “facts” in 1981 at the time she reached majority,
i.e. that her teeth were discolored and that medication given to
her as a child might have caused the discoloration, she had only
two years to bring suit. The Appellate Division disagreed.
Savage v. Old-Bridge Sayreville Medical Group, P.A.
260 N.J.
Super. 417 (1992). It reasoned that, although the plaintiff was
aware that she had suffered injury and that the medication was a
likely cause of it, the record did not reveal anything to suggest
that she was or should have been aware that a lack of care in
administering the medication was also a cause of her condition.
Id. at 421-22.
We agreed with the Appellate Division's conclusion that,
although plaintiff was aware of her injury and that the medicine
was a likely cause of it, she was not aware that her injury was
additionally due to her physicians' avoidable fault. Savage,
supra, 134 N.J. at 247. In so ruling, we distinguished Savage's
claims from those of the plaintiff in Apgar v. Lederle Labs.
123 N.J. 450, 453 (1992), whose untimely suit against the
manufacturer we held time barred because the plaintiff knew, by
the time she was eighteen years old, that the medicine she had
taken as a child had discolored her teeth, that that medicine
“had not been thoroughly tested”, and that “certain things
weren't right.”
Two other cases that are instructive are Gallagher v.
Burdette-Tomlin Mem'l Hosp.
163 N.J. 38 (2000), and Mancuso. In
Gallagher, supra, 163 N.J. at 43-44, we held recently that a
plaintiff could invoke the discovery rule long after she sued her
surgeon for malpractice when she discovered that her after-care
physicians were also at fault. That information was first made
known to her during discovery in the case against the surgeon.
Ibid. In Mancuso, supra, 163 N.J. at 36-37, we held that
although the plaintiff pursued a malpractice cause of action
against her surgeon, because she did not know or have reason to
know that she also had a cause of action against her radiologist
until she heard of his alleged malpractice during discovery in
the original action, she could invoke the discovery rule to begin
an action against him more than two years after his alleged
malpractice.
Martinez, Savage, Gallagher and Mancuso reaffirm the basic
principle that where a plaintiff knows of an injury and that the
injury is due to the fault of another, he or she has a duty to
act. However, those cases also stand for the proposition that
when a plaintiff knows of an injury, and knows that it is the
fault of another, but is reasonably unaware that a third party
may also be responsible, the accrual clock does not begin ticking
against the third party until the plaintiff has evidence that
reveals his or her possible complicity. Moreover,
“notwithstanding that plaintiff discovers his cause of action for
malpractice prior to the expiration of two years from the date of
the actionable conduct, he nevertheless will ordinarily be
allowed two full years from the date of such discovery to bring
his action.” Moran v. Napolitano,
71 N.J. 133, 134 (1976)(citing
Fox v. Passaic Gen. Hosp.,
71 N.J. 122, 126 (1976)).
III
Both the trial court and the Appellate Division ruled the
complaint untimely by fifty-two days based on the notion that on
August 4, 1993, Mrs. Caravaggio knew or should have known that
she was injured and that Dr. D'Agostini bore some responsibility
for that injury.
We disagree with that rather expansive view of what a
reasonable person would or should have known on August 4, 1993.
On that date, Mrs. Caravaggio was told by Dr. D'Agostini that
there must have been something “structurally wrong” with the rod
and that nothing the physical therapist did, at his behest, could
have caused it to snap. It appears that those statements were
made in good faith by Dr. D'Agostini who, even at the time of the
Lopez hearing on May 22, 1998, and despite the metallurgic
analysis, still believed that the Synthes Rod was defective. On
August 4,1993, Mrs. Caravaggio had no reason to assume either
that he was being untruthful or that he had committed malpractice
in the surgery. Indeed, that she did not believe so is
underscored by the fact she later underwent further surgery at
his hands, that her husband continued in his care, and that both
of them referred family and friends to him. It was only when the
rod was removed and found not to be defective that Mrs.
Caravaggio might possibly have had reason to look elsewhere. The
rod removal took place on October 21, 1993, and the complaint
against Dr. D'Agostini was filed within two years of that date.See footnote 33
To be sure, Mrs. Caravaggio knew she was injured on August
4, 1993, and, in light of Dr. D'Agostini's statements, had reason
to believe that the rod manufacturer was at fault as of that
date. That is quite different from knowing or even suspecting
Dr. D'Agostini's possible malpractice. Indeed, Mrs. Caravaggio
was told, as part of the informed consent ritual at the time of
the surgery, that even a procedure performed properly could
result in the untoward complication of “rod breakage.”
On August 4, 1993, when Mrs. Caravaggio knew the rod had
broken, Dr. D'Agostini absolved the physical therapist and,
inferentially, himself, indicating that the only thing he could
think of was that there was something “structurally wrong” with
the rod. Thus, on that date, Mrs. Caravaggio might reasonably
have believed either that the rod breakage was just a
“complication” of the surgery or that the manufacturer was
responsible. She was entirely reasonable in not assuming that
Dr. D'Agostini or the therapist were to blame.
Until the rod was removed and analysis revealed that it was
not defective, there was no reason for Mrs. Caravaggio to suspect
some other cause. Even then, Dr. D'Agostini's negligence was not
necessarily implicated. This is not a res ipsa case. Buckelew
v. Grossbard,
87 N.J. 512, 525 (1981) (confirming use of res
ipsa loquitur in medical malpractice cases, such that an
inference of defendant's negligence is permitted “where (a) the
occurrence itself ordinarily bespeaks negligence; (b) the
instrumentality was within the defendant's exclusive control; and
(c) there is no indication in the circumstances that the injury
was the result of the plaintiff's own voluntary act or neglect.”
(quoting Bornstein v. Metropolitan Bottling Co.,
26 N.J. 263, 269
(1958)). As we have noted, Dr. D'Agostini himself acknowledged
that he advised Mrs. Caravaggio that rod breakage was a possible
complication of properly performed surgery. It thus does not
necessarily follow that a reasonable person would have concluded
that one of the “universe” of defendants (manufacturer,
therapist, physician) had to be responsible.
In Martinez, supra, in a different context, we said:
It is not necessary every time a person dies in a
hospital for his or her relatives to immediately
suspect malpractice. People die in hospitals in
the absence of wrongdoing (for example, those
gravely injured in accidents and the infirm
elderly). Many times complications arise even if
a procedure is performed perfectly. Medicine is
not an exact science. Newmark v. Gimbels,
54 N.J. 585, 596-97 (1969). The rule accepted by the
lower courts, that Ms. Martinez was unreasonable
because she did not obtain and analyze Farrish's
medical records even though she was not
suspicious, encourages mistrust and essentially
pits patients against their physicians even in
cases where there is not even a trace of
negligence apparent.
[163 N.J. at 58.]
That language is equally applicable here. Sometimes surgery
results in complications, even if all procedures were performed
correctly. People have heart attacks under anesthesia, develop
blood clots, experience problems with wound healing, reject
implants, and suffer failure of mobility after joint
replacements. The possibilities, unfortunately, are legion.
That is why surgery is always a last resort and why a patient is
informed, prior to surgery, that a good result cannot be
guaranteed even if the surgery is faultless.
Dr. D'Agostini did not cause Mrs. Caravaggio's original
injury. He was retained to bring her back to health. That is
what he was trying to do when he implanted the Synthes rod. When
it broke and he told Mrs. Caravaggio that there must have been
something structurally wrong with the rod, and assured her that
the physical therapist could not have done anything to break a
non-defective rod, there was no reason whatsoever for her to be
suspicious of him. If the rulings of the trial court and the
Appellate Division to the contrary were to be approved, it would
have the untoward effect of pitting patients against their
physicians, at a time at which they have no reason to doubt their
physicians, in order not to risk losing their cause of action
altogether.
It may be that after discovery and a trial on the merits, a
jury will find that Dr. D'Agostini's performance of Mrs.
Caravaggio's surgery was deficient. Our inquiry is solely
focused on the period of time in 1993 when Mrs. Caravaggio
learned the rod had broken. So focused, it is clear that her
complaint was timely.
IV
Under presently existing standards governing the discovery
rule, Mrs. Caravaggio acted in an objectively reasonable way in
this matter, and the facts and circumstances, as known to her on
August 4, 1993 did not warrant her concluding that Dr. D'Agostini
was guilty of malpractice. She filed suit within two years of
the removal of the rod. That was plainly within time.
V
The judgment of the Appellate Division is reversed. The
matter is remanded to the Law Division for proceedings consistent
with this opinion.
CHIEF JUSTICE PORITZ and JUSTICES STEIN, COLEMAN, and
ZAZZALI join in JUSTICE LONG's opinion. JUSTICE LaVECCHIA filed
a separate dissenting opinion in which JUSTICE VERNIERO joins.
SUPREME COURT OF NEW JERSEY
A-
114 September Term 1999
PATRICIA CARAVAGGIO,
Plaintiff-Appellant,
and
ROBERT CARAVAGGIO, her
husband,
Plaintiff,
v.
ROBERT D'AGOSTINI, M.D.,
Defendant-Respondent,
and
MORRISTOWN MEMORIAL HOSPITAL,
and XYZ CORPORATION, (said
name being fictitious and
presently unknown),
Defendants.
_____________________________
LaVECCHIA, J., dissenting.
Unlike the majority, I do not see this as a difficult case
in which a court must grapple with the application of the
discovery rule. On the uncontested facts here, it seems clear to
me that the equity principles of the discovery rule are
ultimately of no assistance to plaintiff. Her cause of action
was not timely brought and therefore was properly dismissed. For
that reason, I respectfully dissent.
Enforcement of statutes of limitations is the general rule,
and discovery doctrine, as a tool of equity, is designed as an
exception to that general rule. The essential purpose of the
discovery rule “is to avoid harsh results that otherwise would
flow from mechanical application of a statute of limitations.”
Vispisiano v. Ashland Chem. Co.,
107 N.J. 416, 426 (1987). When
a statute of limitations operates as it should to cut off a cause
of action, that does not necessarily constitute a “harsh result.”
That is the very nature of a limitation of actions, and a statute
bars whether the suit is instituted one day, fifty-two days, or
several years after the time period expires. I believe some
straightforward discovery-rule principles dictate an outcome
different from the Court's disposition.
Not that long ago, we reiterated that “[w]e impute discovery
if the plaintiff is aware of facts that would alert a reasonable
person to the possibility of an actionable claim; medical or
legal certainty is not required.” Lapka v. Porter Hayden Co.,
162 N.J. 545, 555-56 (2000). The critical elements in
determining whether the discovery rule applies is a plaintiff's
knowledge of injury and knowledge that another is at fault.
Martinez v. Cooper Hosp.-Univ. Med. Ctr.,
163 N.J. 45, 52 (2000).
With regard to the “fault” prong, we again have framed our
understanding in terms of possibilities, not certainties:
“Fault” in the context of the discovery rule
is simply that it is possible _ not provable
or even probable _ that a third person's
conduct that caused the injury was itself
unreasonable or lacking in due care. In
other words, knowledge of fault does not mean
knowledge of a basis for legal liability or a
provable cause of action; knowledge of fault
denotes only facts suggesting the possibility
of wrongdoing. Thus, knowledge of fault for
purposes of the discovery rule has a
circumscribed meaning: it requires only the
awareness of facts that would alert a
reasonable person exercising ordinary
diligence that a third party's conduct may
have caused or contributed to the cause of
the injury and that conduct itself might
possibly have been unreasonable or lacking in
due care.
[Savage v. Old Bridge-Sayreville Med. Group,
P.A.,
134 N.J. 241, 248 (1993).]
No dispute exists that “[t]he linchpin of the discovery rule is
the unfairness of barring claims of unknowing parties.” Mancuso
v. Neckles,
163 N.J. 26, 29 (2000). We articulated that
“linchpin,” however, in the context of our statement that
“[s]tatutes of limitations are primarily statutes of repose.
They are designed to stimulate litigants to pursue their actions
diligently.” Ibid. We have built that design for diligent
pursuit of actions into our discovery doctrine, so that the
underlying question “is whether the facts presented would alert a
reasonable person exercising ordinary diligence that he or she
was injured due to the fault of another.” Martinez, supra, 163
N.J. at 52.
My answer to that basic question in this case is that a
reasonable person exercising ordinary diligence should have
discovered that she was injured due to the fault of another on
August 4, 1993. On that date, plaintiff's leg was x-rayed, and
defendant-doctor confirmed that the rod had broken through the
screw holes. In confirming the rod breakage, defendant
affirmatively suggested that someone was to blame because the rod
should not have broken. On August 4, 1993, therefore, plaintiff
had an indication that she had an injury, that the injury was due
to the fault of another, and that a limited universe of potential
suspects caused the injury. Understood in Savage terms,
plaintiff had or should have had knowledge of “facts suggesting
the possibility of wrongdoing,” and had or should have had an
awareness of facts suggesting that another's conduct “may have
caused or contributed to the cause of the injury and that conduct
itself might possibly have been unreasonable or lacking in due
care.” Plaintiff had actual or constructive knowledge of those
facts because the defendant himself so informed her. A discovery
event for accrual purposes is evident when a doctor tells a
patient pointblank that an injury has indeed occurred and that it
should not have happened. If fault was not implicit or self-
evident in the injury itself, fault became obvious when the
doctor effectively said “someone is at fault.”
The Court attaches significance to the notion that defendant
inferentially absolved himself of fault when he told plaintiff
that the physical therapist was not to blame and thus that the
rod must have been impaired by a structural defect. Ante at ___
(slip op. at 17). This is not a case, however, in which a
doctor's various representations reasonably induced a plaintiff
not to sue within a limitations period. In Abboud v. Viscomi,
111 N.J. 56, 59 (1988), for example, the plaintiff's physician
erroneously explained to her that her continuing discomfort after
a tooth extraction was a normal part of the healing process and
that her condition was impermanent. The Court remanded the
matter to the trial court to determine whether the plaintiff's
failure to sue within the limitations period was due to the
doctor's erroneous representations. Id. at 65.
Another example is found in Lynch v. Rubacky,
85 N.J. 65
(1981). There, the defendant-doctor performed surgery to repair
the plaintiff's broken ankle. Id. at 67. When the plaintiff
continued to experience a great deal of pain after that surgery,
the doctor consistently assured her that her condition was a
natural part of the healing process and would eventually go away.
Id. at 68. The Court concluded that “a doctor's repeated
assurances of progress may reinforce the reluctance of an average
patient to find medical fault.” Id. at 75; see also, e.g.,
Alfone v. Sarno,
139 N.J. Super. 518, 524-25 (App. Div.)
(concluding that evidence did “not support a finding that under
the circumstances there should have existed in her mind a
disbelief in her physician or a suspicion that he himself was at
fault. Quite the contrary he was giving her assurance”), certif.
denied,
71 N.J. 498 (1976). In Martinez, supra, 163 N.J. at 57,
doctors assured the plaintiff that “they did all they could” for
decedent.
Unlike the doctors in Abboud, Lynch, and Martinez, defendant
in this case did anything but assure plaintiff that the “snap”
she had heard in her leg was a natural part of the healing
process. Defendant here offered no rosy prognoses, immediately
informing plaintiff that something had gone terribly wrong, that
recovery would be prolonged, and that rod replacement might be
necessary to heal her original injury. To be sure, defendant did
not then say, “My medical malpractice caused the injury.”
However, defendant need not have issued such a mea culpa to
impute knowledge of injury and fault to plaintiff. Also,
although defendant may have informed plaintiff before surgery
that rod breakage was a possible complication of surgery
performed properly, defendant's later expression of shock at the
actual breakage belies a suggestion that the breakage was a mere
complication.
Nor is this a case involving complex medical causation and
masked injury, again distinguishing cases relied upon by the
Court. For example, in the companion cases of Mancuso v.
Neckles, supra, 163 N.J. at 34, and Gallagher v. Burdette-Tomlin
Mem'l Hosp.,
163 N.J. 38, 43 (2000), we explained that, for
discovery rule purposes, the justification for a delayed claim
depends on the type of case. A case involving complex causation
and masked injury requires special focus on the “nature of the
information” the claimant possessed, Mancuso, supra, 163 N.J. at
34, and special attention to the difficulties the plaintiff faced
in determining fault, Gallagher, supra, 163 N.J. at 43. We
emphasized in both cases that complex medical-causation cases
implicate intrinsic hardship because “[n]ot only is the nature of
the injury generally unclear, its very existence is frequently
masked.” Ibid.; Mancuso, supra, 163 N.J. at 34 (quoting
Vispisiano, supra, 107 N.J. at 434). In Gallagher, supra, 163
N.J. at 43, we determined that the plaintiff-patient “had no
reason to suspect that her crippling condition” of an abscess
that developed following urologic surgery “was caused by anything
other than the original surgery.” In Mancuso, supra, 163 N.J. at
35, we concluded that plaintiff had no reason to believe that the
spread of her cancer was attributable to belated diagnosis,
rather than the unfortunate ravages of the disease. The facts of
this case do not fit within that framework. A snapped support
rod in a person's leg is hardly a masked injury, and the likely
causal factors suggest themselves.
The Court relates Gallagher and Mancuso to two other cases,
Martinez, supra, and Savage, supra. “Knowledge-of-fault” cases
have a subcategory in which “a plaintiff knows she has been
injured and knows the injury was the fault of another, but does
not know that an additional party was also responsible for her
plight.” Martinez, supra, 163 N.J. at 54 (citing Savage, supra,
134 N.J. at 243). According to the Court, Martinez, Savage,
Gallagher, and Mancuso “stand for the proposition that where a
plaintiff knows of an injury, and knows that it is the fault of
another, but is reasonably unaware that a third party may also be
responsible, the accrual clock does not begin ticking against the
third party until plaintiff has evidence that reveals his or her
possible complicity.” Ante at ___ (slip op. at 16). Even
accepting for the sake of argument that those cases stand for
such a proposition, I am not convinced that the proposition
carries decisive force in this case for two reasons.
First, defendant-doctor here is not a “third party” who
might “also” be responsible for plaintiff's injury. In the
matter before us, we have an injury attributable to the fault of
a limited universe of suspects: the rod manufacturer, the
physical therapist, and the doctor. The issue of causation here
relates not to whether an “additional” or “third party” defendant
remained reasonably obscured to plaintiff in making a complex
causal connection between masked injury and its source. Instead,
the issue of causation relates to which of the possible culprits
was the “first” party who caused the known injury. A plaintiff's
duty to exercise ordinary diligence incorporates the
responsibility to act when, as here, facts suggesting injury,
fault, and a small pool of possible suspects are evident. In
this case, the causal arrows were pointing in only a few possible
directions, and diligence would have identified the correct
target or targets. In Gallagher and Mancuso, we took note that
the plaintiffs had already commenced their lawsuits concerning
their medical conditions within the statutory limitations periods
and only needed to amend their complaints to bring in additional
parties. Gallagher, supra, 163 N.J. at 40-42; Mancuso, supra,
163 N.J. at 30-32. Those additional claims were asserted soon
after the plaintiffs became aware that new facts suggested
wrongdoing on the part of another party not yet named in the
existing action.
Second, even if defendant-doctor qualifies as a third party,
plaintiff had evidence that revealed the doctor's “possible
complicity.” The standard is not whether complicity is certain,
provable, or even probable, but whether fault is possible.
Savage, supra, 134 N.J. at 248. Once the nature of information
available to a plaintiff crosses that threshold, we impute
knowledge of fault to a plaintiff. The threshold was crossed in
this case.
It is not disputed that plaintiff underwent further surgery
at the hands of defendant, that her husband continued in his
care, and that both of them referred friends and family to
defendant. As the Court finds, those facts suggest that for some
time plaintiff did not believe defendant had committed
malpractice. Ante at ___ (slip op. at 17). The inquiry does not
end with that finding, however. Discovery-rule doctrine embraces
a normative, policy perspective. We objectively inquire not only
about what a reasonable plaintiff knew concerning injury and
fault, but also what he or she should have known under the
circumstances. Under the circumstances of this case, if
plaintiff did not know that her doctor possibly could be
responsible for her plight, she should have. In other instances,
we have held that when a plaintiff is aware of an injury
associated with a medical procedure, that knowledge dictates that
the plaintiff take steps to investigate whether he or she has any
claim against the doctor or any implicated party. Baird v.
American Med. Optics,
155 N.J. 54, 69 (1998). We do not view the
plaintiff's duty to investigate the doctor's possible dereliction
as “pitting” the patient against her doctor, but as fulfillment
of a plaintiff's duty to act with ordinary diligence when she had
the requisite knowledge. The normative aspect of discovery
doctrine demands that the nondiligent plaintiff forfeit her claim
to the equitable intervention of the discovery rule. As we
explained in Lapka, supra, 162 N.J. at 558, “[b]ecause the
discovery rule, at its root, is a rule of equity, we must
consider elements of fairness pertaining to all parties, not just
to those asserting the benefits of the rule.”
In this case, it seems clear to me that as of August 4,
1993, plaintiff unquestionably knew of facts that should have
alerted a reasonably diligent claimant that she was injured and
that that injury was caused by the fault of one of three actors,
or a combination of two or all three actors. As of August 4,
1993, she knew the rod broke at the screw holes where it was
fastened to her bone. She knew breaks were not expected,
although possible. She knew the rod might have to be replaced.
She knew that her recovery, in any event, would be retarded
because the broken rod would not function to assist healing. She
knew that there were only three actors in the situation: the
doctor, the rod manufacturer, and the therapist. Plaintiff
clearly had a basis to pursue those claims from that date
forward. Under our discovery-rule jurisprudence, her durational
time limit for bringing the action must be measured from that
date. Because that date puts plaintiff beyond the limitation
period, the statute of limitations should bar her action. I
respectfully dissent.
JUSTICE VERNIERO joins in this opinion.
NO. A-114 SEPTEMBER TERM 1999
ON APPEAL FROM
ON CERTIFICATION TO Appellate Division, Superior Court
PATRICIA CARAVAGGIO,
Plaintiff-Appellant,
and
ROBERT CARAVAGGIO, her
husband,
Plaintiff,
v.
ROBERT D'AGOSTINI, M.D.,
Defendant-Respondent,
and
MORRISTOWN MEMORIAL HOSPITAL,
and XYZ CORPORATION, (said
name being fictitious and
presently unknown),
Defendants.
DECIDED January 22, 2001
Chief Justice Poritz PRESIDING
OPINION BY Justice Long
CONCURRING OPINION BY
DISSENTING OPINION BY Justice LaVecchia
Footnote: 1 1In rendering its opinion, the trial court ventured that Mrs. Caravaggio should have filed a complaint within two years from August 4, 1993, naming fictitious defendants until the identity of the wrongdoer could be established as allowed by R. 4:26-4. R.4:26-4 is entirely irrelevant in these circumstances. Gallagher v. Burdette Tomlin Mem'l Hosp., 318 N.J. Super. 485, 492 (App. Div.), appeal granted, 160 N.J. 86 (1999). The fictitious defendant rule was promulgated to address the situation in which a plaintiff is aware of a cause of action against a defendant but does not know the defendant's identity. Younger v. Kracke, 236 N.J. Super. 595, 599 (Law Div. 1989). That is not the case here. Footnote: 2 2 In rendering summary judgment in favor of Dr. D'Agostini, the trial court also ruled that the entire controversy doctrine barred Mrs. Caravaggio's claim. (Caravaggio v. D'Agostini, No. MRS-L-3095-95, slip. op. at 11-13 (Law Div. July 28, 1998)). The entire controversy doctrine was not addressed by the Appellate Division, nor does the grant of certification include that issue. Footnote: 3 3Because the complaint was timely based on the date of the rod removal, it was not necessary to ascertain exactly when the rod analysis was completed. Obviously that date would be critical if plaintiff had filed her suit more than two years from the second surgery. Such a case would also implicate the question of whether the rod was analyzed in a timely fashion. Those questions are not present in this case.