Rothman v. Silber

• Decision Date: 03 January 1966
• Docket Number: No. A--87,A--87
• Parties: Frances ROTHMAN and Edward Rothman, Plaintiffs-Respondents, v. Joseph SILBER, Stanley Goodman and Newark Beth Israel Hospital, a corporation of New Jersey, Defendants-Appellants.
• Court: New Jersey Superior Court — Appellate Division

Page 22

90 N.J.Super. 22

216 A.2d 18

Frances ROTHMAN and Edward Rothman, Plaintiffs-Respondents, v. Joseph SILBER, Stanley Goodman and Newark Beth Israel Hospital, a corporation of New Jersey Defendants-Appellants.

No. A--87.

Superior Court of New Jersey, Appellate Division.

Argued Nov. 8, 1965.

Decided Jan. 3, 1966.

Melvin B. Cohen, Newark, for appellant Joseph Silber (Kristeller, Zucker, Lowenstein & Cohen, Newark, attorneys).

Samuel H. Davis, Jersey City, for appellant Stanley Goodman (Davis & Roth, Jersey City, attorneys).

Fred W. Jung, Jr., Newark, for appellant Newark Beth Israel Hospital (Jung, Selikoff & Rathman, Newark, attorneys).

Samuel March, Newark, for respondents.

Before Judges GAULKIN, LABRECQUE and BROWN.

The opinion of the court was delivered by

LABRECQUE, J.A.D.

By leave granted, defendants Joseph Silber, Stanley Goodman and Newark Beth Israel Hospital appeal from the denial of their motion to dismiss plaintiffs' amended complaint for medical malpractice on the ground that it was barred by the statute of limitations, N.J.S. 2A:14--2, N.J.S.A. Plaintiffs cross-appeal from the dismissal of the ninth and tenth counts of their amended complaint. See Rothman v. Silber, 83 N.J.Super. 192, 199 A.2d 86 (Law Div.1962).

On March 10, 1960 plaintiff Frances Rothman was delivered of her third child at the Newark Beth Israel Hospital. She was attended by Dr. Goodman as her obstetrician and Dr. Silber as anesthetist. On August 29, 1962, more than two years later, she and her husband (per quod) instituted the present suit alleging negligence in the administration of a 'saddle block (spinal) anesthesia' and claiming damage for pain, suffering and disability. Defendants answered denying negligence and setting up as a special defense the statute of limitations.

Defendants Goodman and Silber moved to dismiss the complaint on the ground that the action was barred by the two-year statute. R.R. 4:12--2(e). This motion was denied without prejudice pending amendment of the complaint to set up fraudulent concealment by defendants of Mrs. Rothman's condition and its cause. Thereafter, a motion by all three defendants to dismiss the amended complaint for the same reason was denied on the ground that the administration of the anesthesia amounted to the introduction of a foreign substance into her body, and that the two-year period of limitation did not begin to run until she discovered it to be the cause of her injury. However, the judge of the Law Division granted summary judgment for defendants on the ninth and tenth counts of the amended complaint, which charged fraudulent concealment, on the ground that there was an absence of any factual basis for that charge.

The record on appeal consists, for the most part, of affidavits filed by Mrs. Rothman and excerpts from her deposition, excerpts from the depositions of three of her treating physicians, Dr. Arthur S. Buckler, Dr. Lewis H. Loeser, and Dr. Philip Willner, together with supporting exhibits, and the depositions of Dr. Silber and Dr. Goodman.

Defendants' basic contention is that plaintiffs' cause of action for malpractice in the administration of the anesthesia accrued at the time of its administration and was barred at the expiration of two years thereafter. N.J.S. 2A:14--2, N.J.S.A.; Tortorello v. Reinfeld, 6 N.J. 58, 77 A.2d 240 (1950). Plaintiffs argue that it is within the class of cases governed by Fernandi v. Strully, 35 N.J. 434, 173 A.2d 277 (1961).

From the affidavits and deposition of plaintiff wife it appears that after the birth of her child and prior to her discharge from the hospital she was in extreme pain and her right side became stiff. She was told by defendants Goodman and Silber that these were after-effects of childbirth and would gradually disappear. For four months thereafter her right side would become stiff and hurt at the end of the day. On July 15, 1960 she consulted Dr. Emanuel Klosk for the condition. Two weeks later he advised her that in his opinion a vertebra was out of place as a result of the childbirth. He suggested hospitalization. She then consulted Dr. Philip Willner, an orthopedist, who advised her that the difficulty did not involve the vertebrae and suggested that she consult a neurosurgeon for possible nerve injury. On August 15, 1960 she consulted Dr. Lewis H. Loeser, a neurosurgeon, who prescribed medication for a 'nerve infection.' After about a month of his medication she felt 'almost completely better.' However, about November 18, 1960, the pain reappeared. She was then examined by Dr. Arthur S. Buckler, who prescribed medication for a nerve infection and, she said, advised her that her trouble had been brought about by the administration of the saddle block anesthesia. She asserts that this was the first knowledge that she had of the cause of her difficulty. Specifically, she deposed:

'He further advised that no further spinal anesthetic could be employed on me as my nerve had been severely injured. He further indicated that my entire condition was attributable to a foreign object being placed into my body improperly.'

While her affidavit does not point out in what respect the anesthetic was negligently administered, at the oral argument counsel for plaintiffs revealed that it would be their contention at the trial that the anesthetic 'was placed in the wrong place.'

Dr. Willner's notes on his first examination of Mrs. Rothman were to the effect that:

'The patient presents the cardinal findings of a peripheral neuritis secondary to a saddle block, to the right sciatic nerve; to the peraformis muscle, without any motor, sensory or reflex changes, have advised 1,000 m.g. B--12 three times a week, plus Darvon comp. one BID plus conservative measures.'

On August 9, 1960, the date of her next and final visit, he made a note that:

'This patient has a nerve root irritation secondary to a pudendal block. I feel that she should be seen by a neurologist, being referred to same.'

Dr. Willner stated, however, that he made no diagnosis, was not qualified to make a neurological diagnosis, and his notes were no more than his conclusions from the history given him by the patient. X-rays taken by him at the time were negative for bone pathology.

Dr. Loeser, the neurologist, deposed that he saw the patient on August 15, 1960 and, while his examination revealed no objective finding, She told him as part of the history that 'there is an injury to the nerve caused by the saddle block.' He came to no definite conclusion but, based upon the history given, entertained a 'suspicion that she might have had a neuritis from a spinal block * * *.' He prescribed a drug for palliative relief and never saw her again.

Dr. Buckler, a general practitioner, treated plaintiff for her fourth pregnancy. He testified that during the course of his treatment she complained of a sciatic type pain in the right leg and indicated it was the result of a saddle block anesthesia at her third pregnancy. In his delivery of plaintiff's fourth child he employed a pudendal block as opposed to the low back approach of a saddle block. He continued to treat plaintiff after the birth of the child but stated that he had never told her that the sciatic type pain in her right leg which she complained of had come about as a result of a saddle block at the time of her third pregnancy.

We hold that plaintiff's cause of action accrued at the time of the administration of the anesthesia and that, absent extenuating circumstances such as will be discussed infra, her cause of action and that of her husband were barred by their failure to institute the suit within the period provided by N.J.S., 2A:14--2, N.J.S.A.

At common law there was no fixed time for the bringing of an action. Uscienski v. National Sugar Refining Co., 19 N.J.Misc. 240, 242, 18 A.2d 611 (C.P.1941). Such limitations are creatures of statute and derive their authority therefrom. They embody important policy considerations, one of which is the giving of repose to human affairs. Wood v. Carpenter, 101 U.S. 135, 139, 25 L.Ed. 807, 808 (1879), Kyle v. Green Acres at Verona, Inc., 44 N.J. 100, 108, 207 A.2d 513 (1965). Where 'a plaintiff knows or has reason to know that he has a cause of action and voluntarily sleeps on his rights,' permitting the statutory period to expire, 'the pertinent considerations of individual justice as well as the broader considerations of repose, coincide to bar his action.' Fernandi v. Strully, supra, 35 N.J., at p. 438, 173 A.2d at 279.

In Fernandi, on which plaintiffs rely heavily, Mrs. Fernandi sued for malpractice on the part of a surgeon who permitted a wing nut, part of a surgical instrument, to remain in her body following surgery. She was not aware of this addition to her anatomy until three years after the operation when, upon the taking of X-rays in an effort to account for her continued distress, its presence was discovered. The absence of the wing nut from the surgical instrument of which it was a part had been discovered at the hospital shortly following the operation, but of this plaintiff was given no notice.

Following the filing of Mrs. Fernandi's complaint a motion for summary judgment was made and granted on the ground that the statute of limitations barred the suit. The Supreme Court reversed, holding that the wing nut was a foreign object which had been permitted to remain in plaintiff's body and that the period of limitation began to run when the patient knew or had reason to know of its presence. Fernandi v. Strully, supra, 35 N.J., at pp. 449 et seq., 173 A.2d 277.

Plaintiffs contend that the negligent administration of the anesthetic should be equated with the leaving of a wing nut or similar foreign object in the body, and thus their right of action did not accrue until November 18, 1960 when, according to Mrs. Rothman, Dr. Buckler told her that this was the cause of her trouble. We disagree. Assuming, Arguendo, that a jury...