Thornton v. Roosevelt Hospital

• Decision Date: 10 May 1979
• Citation: 47 N.Y.2d 780,391 N.E.2d 1002,417 N.Y.S.2d 920
• Parties: , 391 N.E.2d 1002 Jock THORNTON, as Executor of Sharon R. Thornton, Deceased, et al., Appellants, v. ROOSEVELT HOSPITAL et al., Respondents.
• Court: New York Court of Appeals Court of Appeals

Page 920

417 N.Y.S.2d 920

47 N.Y.2d 780, 391 N.E.2d 1002

Jock THORNTON, as Executor of Sharon R. Thornton, Deceased,

et al., Appellants,

v.

ROOSEVELT HOSPITAL et al., Respondents.

Court of Appeals of New York.

May 10, 1979.

Sheila L. Birnbaum, New York City, for appellant

James M. Furey, Hempstead, for Roosevelt Hospital, respondent.

Joseph D. Ahearn, J. Robert Morris and Michael G. Majewski, New York City, for Testagar, Inc., and another, respondents.

OPINION OF THE COURT MEMORANDUM.

The order of the Appellate Division should be affirmed, with costs.

In this action sounding in strict products liability based on allegations that a thorium dioxide substance manufactured by defendant Testagar, Inc., and injected into decedent resulted in the onset of cancer, the cause of action accrued at the time of invasion of decedent's body, and not at the time the decedent's cancerous condition became apparent.

In Victorson v. Bock Laundry Mach. Co., 37 N.Y.2d 395, 373 N.Y.S.2d 39, 335 N.E.2d 275, we held that the cause of action termed strict products liability accrues as of the date of injury, and inasmuch as such theory of liability is grounded in tort rather than contract, a three-year Statute of Limitations is applicable. Nowhere did the court state, or even suggest, that the social policies upon which the holding in Victorson was predicated might prompt a change in the traditional principle that a cause of action grounded in tort commences as of the date of injury.

It is well established in this State that when chemical compounds are injected into a person's body, the injury occurs upon the drugs introduction, not when the alleged deleterious effects of its component chemicals become apparent. (Schwartz v. Heyden Newport Chem. Corp., 12 N.Y.2d 212, 237 N.Y.S.2d 714, 188 N.E.2d 142, cert. den. 374 U.S. 808, 83 S.Ct. 1697, 10 L.Ed.2d 1032.) Here, plaintiff's claim being interposed some 20 years after the decedent's injection the date of injury the action is time-barred, irrespective of whether the cause of action is couched in terms of strict products liability.

Nor can we conclude that plaintiff may invoke the so-called "discovery" rule. While in the context of medical malpractice an action may be commenced after discovery of a "foreign object" in the body of a patient (CPLR 214-a; see Flanagan v. Mount Eden Gen. Hosp., 24 N.Y.2d 427, 301 N.Y.S.2d 23, 248 N.E.2d 871), it is important to note that, by statute, chemical compounds do not constitute "foreign objects". We decline the invitation to extend judicially the discovery rule to strict products liability actions. Such matter is best reserved for the Legislature, and not the courts. (Cf. Becker v. Schwartz, 46 N.Y.2d 401, 412, 413 N.Y.S.2d 895, 902, 386 N.E.2d 807, 814; Codling v. Paglia, 32 N.Y.2d 330, 344-345, 345 N.Y.S.2d 461, 471-472, 298 N.E.2d 622, 629-630.)

FUCHSBERG, Judge (dissenting).

The plaintiff in this wrongful death action appeals from an order of the Appellate Division that struck those portions of the orders of Special Term that had granted leave to the plaintiff to replead in strict liability and had affirmed so much of the orders as, Inter alia, had dismissed causes premised on negligence. The case is still at the pleading stage. The defendants, maintaining that the case is time-barred, have successfully moved for summary judgment. They argued that the alleged injury to the decedent occurred at the time Thorotrast, the defendant Testagar's trade name for the chemical compound thorium dioxide, was injected into her body at the defendant Roosevelt Hospital back in 1954. In opposition, the plaintiffs took the position that no injury was sustained at the time of the injection, which was consensual and uneventful when given, but rather that, by reason of the product's latent properties, its attack on the decedent's body did not occur until late 1972 or early 1973, dates that bring the commencement of suit well within the statute. Confining myself to the issue so defined, certainly at this stage of the case and pending exploration of the facts, I believe the motions should have been denied.

The pleadings are not complex. The complaint tells us that the Thorotrast was injected into Susan Thornton's left maxillary region during a diagnostic examination for chronic sinusitis. It also alleges that, ostensibly a harmless substance intended merely to enhance the visualization of the sinus cavity on X-ray examination, to the knowledge of the defendants but unknown and undisclosed to her as the patient, it is a radioactive salt with a potential for causing cancer. The plaintiff further asserts that, though this foreign body ultimately caused the undifferentiated squamous cell carcinoma to which Mrs. Thornton succumbed, it did not produce its cancerous consequences before 1972, as confirmed not only by the absence of earlier tell-tale symptoms but by the negative results of other examinations during the intervening years.

Because the decisions below were posited entirely on the limitations question, there is no point here in delving into the medical literature, hospital records and argumentation with which the parties also punctuated their respective positions on other underlying questions, such as whether the product cost-utility considerations in mind was safe; whether warnings were required; and whether warnings, if in fact given to ministering physician or to patient, were adequate. Instead, I proceed at once to the dispute over when the statute began to run.

I first observe that, while the court in effect has assumed that the choice is between the date when the Thorotrast was injected and the date when the cancer first developed, the latter date is not necessarily the same as the one on which the victim became aware of the injury. On this score, since the plaintiff pleads that the product was one whose deleterious activity could either occur belatedly or act slowly and insidiously over a long period of time, the accrual date could be one of three, i. e., (1) the date of ingestion, (2) the date when, regardless of whether Mrs. Thornton then became aware of it, the injury process first started to work on her body, and (3) the date when the injury manifested itself sufficiently to put her on notice that an injury had indeed occurred. The second and third alternatives would require a reversal of the order appealed from so that the proof as to when either of them took place could be developed.

Drugs with a latent or slowly evolving potential for harm are no longer unique. The bewilderingly broad spectrum of such products grows greater all the time. More and more, they compel their users to place blind reliance on the care with which they are designed, tested, fabricated, marketed and administered. Characteristically, the dangers they carry are hidden; as often as not, the earliest indication of harm may not turn up until a point remote in time, the adverse effect meanwhile being unknown and perhaps even nonexistent. Good sense and good law therefore require, it seems to me (and apparently to many courts), ^* that the injured user not be foreclosed from having his day in court before he even has knowledge of any injury and certainly not before any injury has occurred.

Schmidt v. Merchants Desp. Transp. Co., 270 N.Y. 287, 200 N.E. 824 and Schwartz v. Heyden Newport Chem. Corp., 12 N.Y.2d 212, 237 N.Y.S.2d 714, 188 N.E.2d 142, the cases upon which Special Term and the Appellate Division relied, are not insuperable obstacles. It is no impermissible slight to the rule of precedent to remember that, as with decisional law...