(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 November 30, 1999 -- Decided February 16, 2000
LONG, J., writing for a unanimous Court.
This appeal involves the application of the discovery rule to a claim of medical negligence or malpractice that
would otherwise be barred by the statute of limitations.
Olga Martinez, who describes herself as “an illiterate Puerto Rican woman with little education, no medical
experience and language difficulties,” is the mother of three children. Two of her children were fathered by Carl Farrish,
who was badly beaten in a street brawl on April 3, 1993 and admitted to Cooper Hospital. The following day, a CT scan of
his abdomen disclosed intestinal tract inflammation and accumulating fluid. Although a follow-up scan was recommended
because the first was opaque, none was done until two days later. The second scan revealed a large amount of
intraperitoneal fluid. The doctor noted the strong possibility of a perforated organ.
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 indicated 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.”
Martinez, married to someone else at the time of Farrish's death, first learned of his hospitalization on April 5th
from Farrish's then fiancee. When Martinez brought her children to the hospital to see their father on April 8th, she learned
from the doctor that while the hospital staff had done “all they could,” Farrish had died due to a small hole in his intestines.
Based on that conversation, on the autopsy report, on the death certificate, and on newspaper articles reporting Farrish's
death from injuries sustained in the fight, Martinez made no further inquiry into the circumstances of the death, never
suspecting medical negligence.
In late April 1996 - three years after Farrish's death - Martinez received a letter from her present counsel indicating
that Farrish's death may have been the result of negligence on the part of hospital personnel, who delayed several hours in
treating him. That conclusion was based on information contained in an anonymous letter received by Farrish's fiancee in
or about October 1995. Before then, although Farrish's mother and fiancee had harbored suspicions surrounding Farrish's
death, they did not share those suspicions with Martinez.
On January 17, 1997, over three and one-half years after Farrish died, but within two years of receiving the letter,
Martinez filed suit against Cooper Hospital, several physicians, and several John Doe defendants. Cooper Hospital filed an
answer asserting the statute of limitations as an affirmative defense. Subsequently, the trial court denied the Hospital's
motion for summary judgment. On appeal, the Appellate Division reversed and remanded the matter for a Lopez hearing to
determine whether the discovery rule applied to Martinez's claim. After that hearing, the trial court dismissed Martinez's
complaint, concluding that because all of the facts that suggested negligence were present on the day that Farrish died, the
statute of limitations began to run at the time of his death, or a few days later.
The Appellate Division affirmed the trial court's dismissal, applying the Lopez standard of “a reasonable person
exercising ordinary diligence and intelligence.” The Appellate Division concluded that because Farrish was a healthy man
who died of peritonitis due to a perforated viscus, a reasonable person would have reviewed the medical records and
determined that the delay by the hospital personnel was a major factor in his death.
The Supreme Court granted Martinez's petition for certification.
HELD: Because Martinez was reasonably unaware that Farrish's death may have been caused by the medical negligence of
Cooper Hospital personnel, and because she acted with reasonable diligence in asserting her claim on learning of the
existence of possible malpractice or negligence, she may properly invoke the discovery rule to begin an action against
Hospital personnel beyond two years after their alleged negligence or malpractice.
1. The purpose of a statute of limitations is to stimulate activity, punish negligence, and promote repose. (pp. 6-7)
2. The discovery rule is a rule of equity that was adopted to prevent the sometimes harsh result of a mechanical application
of the statute of limitations. The rule provides that in an appropriate case, a cause of action will be held not to accrue until
the injured party discovers, or by an exercise of reasonable diligence and intelligence should have discovered that he or she
may have a basis for an actionable claim. (pp. 7-8)
3. A cause of action does not accrue until one knows that he has suffered an injury and that the injury is attributable to the
fault of another. (pp. 8-10)
4. Where a plaintiff knows of an injury, but fault is not self-evident or implicit in the injury itself, it must be shown that a
reasonable person would have been aware of such fault in order to bar the plaintiff from invoking the discovery rule. (pp.
10-12)
5. Although a person's subjective characteristics, such as a lack of education or illiteracy, standing alone, will not absolve
him or her of the obligation to file a claim within the relevant statutory period, those characteristics could be taken into
consideration in a discovery rule proceeding if a defendant took advantage of them in such a way as to prevent a timely
filing. (pp. 12-13)
6. A discovery rule analysis does not rise or fall on the personal characteristics of plaintiffs, but on the circumstances in
which they find themselves and their responses to those circumstances. Tested against that standard, Martinez's conduct
was reasonable. (p. 14)
7. Given the direct correlation between the beating and Farrish's ultimate death, confirmed by the medical examiner and
reported by the newspaper, there was simply no cause for Martinez to attribute the death to anything other than the beating
he suffered. (pp. 14-16)
8. Under presently existing standards governing the discovery rule, Martinez acted in an objectively reasonable way in
connection with Farrish's death, believing the official version of events. (pp. 16-17)
Judgment of the Appellate Division is REVERSED and the matter is REMANDED to the Law Division for
proceedings consistent with the Court's opinion.
CHIEF JUSTICE PORITZ and JUSTICES O'HERN, GARIBALDI, STEIN, COLEMAN, and VERNIERO
join in JUSTICE LONG's opinion.
SUPREME COURT OF NEW JERSEY
A-
102 September Term 1998
OLGA MARTINEZ, Executrix
of the ESTATE OF CARL M.
FARRISH, deceased,
Plaintiff-Appellant,
v.
COOPER HOSPITAL-UNIVERSITY
MEDICAL CENTER,
Defendant-Respondent,
and
MICHAEL CHONSKY, M.D.,
NADINE ROSENTHAL, M.D.,
JOHN DOES 1 through 10
(fictitious persons)
and ABC COMPANIES 1
through 10 (fictitious
companies),
Defendants.
Argued November 30, 1999-- Decided February 16, 2000
On certification to the Superior Court,
Appellate Division.
John J. Eichmann argued the cause for
appellant.
Stacy L. Moore, Jr., argued the cause for
respondent (Parker, McCay & Criscuolo,
attorneys).
The opinion of the Court was delivered by
LONG, J.
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 letter was the first indication that
negligence may have played a part in Farrish's death.
As a result, she filed a malpractice action against Cooper
Hospital, several physicians and John Doe defendants on January
17, 1997, over three and one-half-years after Farrish died, but
within two years of receiving the letter. Cooper Hospital filed
an answer asserting the statute of limitations as an affirmative
defense. The trial court denied the Hospital's motion for
summary judgment. The Hospital appealed, and the Appellate
Division reversed and remanded for a Lopez hearing to determine
if the discovery rule applied.See footnote 11
A hearing was held at which the previously described facts
were established. Thereafter, the trial judge dismissed Ms.
Martinez' complaint with prejudice, concluding that because all
of the facts that suggested negligence were present on the day
that Farrish died, the statute of limitations began to run at the
time of his death, or a few days later. Ms. Martinez appealed.
In an unpublished opinion, the Appellate Division affirmed.
Applying the Lopez standard of a “reasonable person exercising
ordinary diligence and intelligence,” the court concluded that
because Farrish was a healthy man who died of peritonitis due to
a perforated viscus, a reasonable person would have reviewed the
medical records and determined that the delay by hospital
personnel was a major factor in his death. We granted
certification on May 12, 1999.
160 N.J. 476. We now reverse.
The statute of limitations governs the period during which a
party may bring a suit, and generally accrues from the date of
the negligent act or omission. Tortorello v. Reinfeld,
6 N.J. 58, 65 (1950). The purpose of a limitations period, which
embodies important public policy considerations, is to stimulate
activity, punish negligence, and “promote repose by giving
security and stability to human affairs.” Wood v. Carpenter,
101 U.S. 135, 139,
25 L. Ed. 807 (1879). See Union City Hous. Auth.
v. Commonwealth Trust Co.,
25 N.J. 330, 335 (1957) (noting that
primary purpose of statutes of limitations is to create repose,
to eliminate stale claims, and to compel exercise of right of
action so that opposing party has fair opportunity to defend).
For medical malpractice actions, the suit must be commenced
within two years of the alleged negligence. N.J.S.A. 2A:14-2.
To prevent the sometimes harsh result of a mechanical application
of the statute of limitations, we adopted the discovery rule.
Vispisiano v. Ashland Chem. Co.,
107 N.J. 416, 426 (1987);
Fernandi v. Strully,
35 N.J. 434, 449-50 (1961). The discovery
rule is essentially a rule of equity. Lopez, supra, 62 N.J. at
273. It “provides that in an appropriate case a cause of action
will be held not to accrue until the injured party discovers, or
by an exercise of reasonable diligence and intelligence should
have discovered that he may have a basis for an actionable
claim.” Id. at 272.
In Baird v. American Med. Optics,
155 N.J. 54, 66 (1998), we
said:
Critical to the running of the statute is the
injured party's awareness of the injury and
the fault of another. 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. (Citations omitted.)
The 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. The standard is
basically an objective one -- whether plaintiff “knew or should
have known” of sufficient facts to start the statute of
limitations running. Id. at 72.
That does not mean that a plaintiff must have knowledge of a
specific basis for legal liability or a provable cause of action
before the statute of limitations begins to run. Savage v. Old
Bridge-Sayreville Med. Group,
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 v. Rubacky,
85 N.J. 65,
70 (1981). Both are critical elements in determining whether the
discovery rule applies.
For that analysis, plaintiffs are divided into two 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. A cause of action does not accrue until both of those
factors exist.
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 a
foreign object has been left within the body after an operation.
See Fernandi, supra, 35 N.J. at 452. 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, 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. 234, 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 to
the radiologist, and we 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.
Likewise, in Lynch, supra, 85 N.J. at 67-68, plaintiff
injured her ankle and was operated on by 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 plaintiff's problem was due to 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 plaintiff's faith
in defendant, his reassurances that the pain and swelling were
part of the healing process, and the fact that a physician whom
plaintiff later consulted did not suggest defendant's medical
negligence until after the statute had run. We 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 a third party
was also responsible for her plight. Savage, supra, 134 N.J. at
243, is a good example of this. In Savage, plaintiff filed a
medical malpractice action against physicians who had
administered a tetracycline derivative to her in early childhood
that discolored her teeth. Plaintiff became 21 in 1981. Up to
that point the statute was tolled by reason of her age. She
filed her complaint in 1989 alleging she was unaware until 1988
that her injury was due to the fault of the doctors. The trial
judge ruled that because she had all the “facts” 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.
260 N.J. Super. 417 (1992). It
reasoned that, although plaintiff was aware that she had suffered
injury and that medication was a likely cause of the injury, the
record did not reveal 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 characterization of
Savage as a case like Lopez where, although plaintiff was aware of
her injury and that the medicine was a likely culprit, she was not
aware that her injury also was 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 suit against the
manufacturer we held time barred because plaintiff knew, by the
time she was 18 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.” See
also Gallagher v. Burdette-Tomlin Med. Hosp., ___ N.J. ___, ___
(2000), also decided today, that held that plaintiff could invoke
discovery rule, long after she sued her surgeon for malpractice,
where she first discovered her after-care physicians were also at
fault because of the surgeon's expert's deposition testimony. The
basic principle of Lopez, Lynch, , Savage and Gallagher is that
where, within the limitations period, 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 where a plaintiff knows of an injury, but fault is
not self-evident or implicit in the injury itself, it must be shown
that a reasonable person would have been aware of such fault in
order to bar the plaintiff from invoking the discovery rule.
Finally, we note that a plaintiff's subjective
characteristics, standing alone, will not absolve him or her of the
obligation to file a claim within the relevant statutory period.
Thus, a litigant generally will not succeed under discovery rule
analysis by claiming illiteracy or lack of education as the basis
for having failed to appreciate either the existence of an injury
or the fault of another. However, a litigant's personal
characteristics may be relevant to an objective fact in issue.
For example, if a defendant took advantage of a plaintiff's
illiteracy or lack of education in such a way as to prevent a
timely filing, that happenstance could constitute a valid
consideration in a discovery rule proceeding. That is the
objective use of subjective information to which we alluded in
Baird, supra.
IV
It is against this backdrop that these parties' claims should
be viewed. Ms. Martinez contends that the trial and appellate
courts erred in barring her complaint because her actions were
entirely reasonable under the circumstances; she had no warrant to
suspect medical malpractice or even to look at the hospital
records; and that, in any event, her illiteracy, lack of education
and language barriers needed to be factored into the reasonable
person analysis.
Defendant counters that Ms. Martinez did not exercise
reasonable diligence in investigating Farrish's death; that all of
the factors suggesting negligence were available to Ms. Martinez
within time; that the letter from Mr. Eichmann did not reveal new
“facts”; and that the standard to be applied is an objective one,
not dependent on the idiosyncracies of an individual plaintiff.
We agree with the trial court and the Appellate Division that
the applicable standard is an objective one: what a reasonable
person knew or should have known from the surrounding facts.
Baird, supra, 155 N.J. at 72. It is in the application of that
standard that we part company from them.
The Appellate Division concluded that Ms. Martinez had the
capacity to check the hospital records; had she done so, it would
have been clear that the delay in obtaining the CT scan contributed
to Farrish's death. According to the Appellate Division, Ms.
Martinez' failure to obtain and review the records was
unreasonable.
We disagree, and not because Ms. Martinez is, in her own
words, an “illiterate Puerto Rican woman with little education, no
medical experience and language difficulties.” A discovery rule
analysis does not rise or fall on the personal characteristics of
plaintiffs, but on the circumstances in which they find themselves
and their responses to those circumstances. Tested against that
standard, we view Ms. Martinez' conduct as commensurate with that
of the proverbial reasonable person.
The injury in this case was apparent: Farrish was beaten and
died. Ms. Martinez believed from the outset that it was the fault
of another -- the perpetrator of the crime against Farrish. She
was not present at the hospital when Farrish was brought in, and
she did not know that he vomited blood and waited for many hours
before he was seen. The death certificate, reflecting an autopsy,
and a newspaper article both pointed her to the conclusion that
Farrish's death was a homicide. Ms. Martinez had no reason to
suspect malpractice.
That is especially so in light of the physician's statement to
her that “they did all they could.” His assurances, which would
tend to deflect an ordinary person's attention from the hospital's
conduct, may be compared to the defendant's conduct in Abboud v.
Viscomi,
111 N.J. 56, 65 (1988) (noting that dentist's repeated
assurances that plaintiff's post-extraction pain was normal
contributed to delay in discovering permanent nerve damage), and
Lynch, supra, 85 N.J. at 74-76 (observing that doctor's repeated
assurances that plaintiff's condition was result of normal “healing
process” impeded plaintiff from discovering doctor's fault).
Although decedent's fiancee and mother said, with the benefit of
hindsight, that they both thought there may have been negligence,
they had no specific basis for that conclusion and did not share
those thoughts with Ms. Martinez.
Although Ms. Martinez could have read the 300 pages of medical
reports, she had no reason to do so. To her, the hospital was
engaged in repairing the injuries Farrish sustained at the hands of
his assailant. He was beaten badly enough to require
hospitalization and surgery; he did not improve after the beating.
The direct correlation between the beating and Farrish's ultimate
death, confirmed by the medical examiner and reported by the
newspaper, is crucial here because a reasonable person would have
no reason to believe that a hospital that was engaged to aid
Farrish was actually at fault. There was simply no cause for Ms.
Martinez to attribute Farrish's death to anything other than the
beating he suffered.
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.
This is not a case in which a perfectly healthy individual
underwent elective surgery and died. Obviously some inquiry would
be required by a reasonable person in such circumstances. On the
contrary, this case involves Farrish's severe beating; a
physician's assurance that everything was done properly; and
official recognition of Farrish's death as a homicide in the death
certificate.
CHIEF JUSTICE PORITZ and JUSTICES O'HERN, GARIBALDI, STEIN, COLEMAN, and VERNIERO join in JUSTICE LONG's opinion.
NO. A-102 SEPTEMBER TERM 1998
ON APPEAL FROM
ON CERTIFICATION TO Appellate Division, Superior Court
OLGA MARTINEZ, Executrix
of the ESTATE OF CARL M.
FARRISH, deceased,
Plaintiff-Appellant,
v.
COOPER HOSPITAL-UNIVERSITY
MEDICAL CENTER,
Defendant-Respondent,
and
MICHAEL CHONSKY, M.D.,
NADINE ROSENTHAL, M.D.,
JOHN DOES 1 through 10
(fictitious persons)
and ABC COMPANIES 1
through 10 (fictitious
companies),
Defendants.
DECIDED February 16, 2000
Chief Justice Poritz PRESIDING
OPINION BY Justice Long
CONCURRING OPINION BY
DISSENTING OPINION BY
Footnote: 1 1 Lopez, supra, 62 N.J. at 275-76.