Yerzy v. Levine

• Decision Date: 15 January 1970
• Citation: 260 A.2d 533,108 N.J.Super. 222
• Parties: Shirley YERZY and Richard Yerzy, her husband, Plaintiffs-Appellants, v. David LEVINE, M.D., Defendant-Respondent.
• Court: New Jersey Superior Court — Appellate Division

Page 222

108 N.J.Super. 222

260 A.2d 533

Shirley YERZY and Richard Yerzy, her husband, Plaintiffs-Appellants, v. David LEVINE, M.D., Defendant-Respondent.

Superior Court of New Jersey

Appellate Division.

Argued Oct. 20, 1969.

Decided Jan. 15, 1970.

Lawrence D. Smith, Hackensack, for appellants (Hein, Smith, Mooney & Berezin, Hackensack, attorneys).

John J. Francis, Jr., Newark, for respondent (Shanley & Fisher, Newark, attorneys).

Before Judges KILKENNY, LABRECQUE and LEONARD.

The opinion of the court was delivered by

LABRECQUE, J.A.D.

In this suit alleging medical malpractice plaintiffs appeal from a judgment in favor of defendant.

On January 16, 1964, while a patient in Barnert Memorial Hospital, Paterson, plaintiff Shirley Yerzy came under the surgical care of defendant. She had previously suffered several gall bladder attacks and defendant diagnosed her condition as chronic cholelithiasis (chronically inflamed gall bladder with stones). On his recommendation plaintiff consented to surgery for removal of the gall bladder. The operation took place on January 17. On the second day thereafter plaintiff observed a large quantum of bile, which was staining, saturating and seeping through the padding which covered her surgical incision, and accompanied by pain in the right side of her back. The heavy drainage persisted throughout her stay in the hospital.

When Mrs. Yerzy questioned defendant he attributed the unusual, heavy bile drainage to a loosening of a suture at the cystic duct, and suggested that plaintiff 'wait and see, perhaps nature will take care of it and it will close up by itself.' He told her this notwithstanding that he had never seen a suture loosen at the cystic duct. By January 27, when the time for Mrs. Yerzy's discharge was at hand and the drainage had not stopped, he ordered X-rays (an intravenous cholangiogram) for the asserted purpose of effectuating a visualization of the common bile duct. Because the dye used had not been properly absorbed so as to permit visualization, the X-rays were negative.

By this time defendant, after telling Mr. Yerzy that his wife had a biliary fistula, recommended that she be examined by someone with more experience. In line with this, following her discharge from the Barnert Hospital she was admitted to the New York Hospital, where she came under the care of a Dr. Glen (who, along with another, had been recommended by defendant). Dr. Glen performed a second operation on February 3, 1964 which revealed that the common bile duct had previously been completely severed.

Mrs. Yerzy testified she was not thereafter informed of the real nature of the condition found or its relationship to the manner in which the first operation had been performed. She was told by Dr. Glen only that her bile duct had been found to be 'interrupted.' She thought he also said there was a stone in the duct.

For better understanding of the contentions of the respective parties, we are told that the gall bladder is located on the underside of the liver and that it discharges concentrated bile through the cystic duct into the common bile duct which in turn discharges into the upper end of the small intestine. Bile (not concentrated) is also discharged directly from the liver through the hepatic duct into the common bile duct. Thus severance of the common bile duct permitted bile to be freely discharged from the liver into the upper abdominal area.

Dr. Levine testified that prior to beginning the removal of Mrs. Yerzy's gall bladder he palpated the common duct and found nothing abnormal. During the course of the removal of the gall bladder he 'dissected out' the cystic duct, I.e., it was ligated in two places and then cut in-between, so as to sever the gall bladder from it. The operation did not call for surgery of the common duct, which was beyond, and at the other end of the cystic duct. While Dr. Levine denied severing it, he conceded that 'apparently it must have happened' at the time of his operation.

Mrs. Yerzy testified that her knowledge of her true condition and defendant's responsibility in connection with it began with her discovery, on a visit to the New York Hospital sometime in the first half of 1966 for further X-rays, that her bile duct had been severed. Her complaint was filed on October 6 of that year. The first count charged medical malpractice and the second, fraudulent concealment by defendant of his asserted negligence in severing the common duct during the operation. The answer filed by defendant set up, among others, the defense of the statute of limitations (N.J.S.A. 2A:14--2).

Thereafter, defendant moved to dismiss the first count on the ground that is was barred because not brought within two years of the time of the operation. Plaintiff opposed the motion on the ground that the 'discovery rule' was applicable; hence the statute did not begin to run until plaintiff knew or should have known of the condition from which she was suffering and the existence of a cause of action against defendant based upon it. Fernandi v. Strully, 35 N.J. 434, 450, 173 A.2d 277 (1961). The motion was granted.

Thereafter, there was a jury trial as to defendant's liability under the second count. The trial judge (not the one who granted the motion), in submitting the case to the jury, directed it to first find whether defendant had been guilty of medical malpractice, and thereafter determine whether there had been fraudulent concealment of that fact by him. The jury, by a vote of 11 to 1, found malpractice proximately resulting in damages to plaintiffs but no fraudulent concealment. It was unable to agree upon a special verdict as to a third issue, whether it was before or after October 6, 1964 that 'Mrs. Yerzy knew or discovered, or with reasonable diligence should have discovered, Dr. Levine's claimed malpractice proximately causing her injuries.' The present appeal challenges both the concomitant judgment for the defendant and the dismissal of the first count.

As to the first count, we are confronted with a simple issue--whether the two-year period prescribed by N.J.S.A. 2A:14--2 began to run on the day of plaintiff's operation, or on the day that plaintiff first knew or should have known of her condition and defendant's alleged responsibility for it. If the latter rule applied it was error to dismiss.

The discovery rule appears to have been first enunciated in the case of Hahn v. Claybrook, 130 Md. 179, 100 A. 83, L.R.A.1917C, 1169 (Ct.App.1917). See Prosser, The Law of Torts (3d ed. 1964) § 30, at 148; Annotation, 80 A.L.R.2d 368, 388 (1961). In this State it was held applicable for the first time to a medical malpractice case in Fernandi v. Strully, Supra. In that case, following a hysterectomy, the operating surgeon permitted a wing nut from a surgical instrument to remain in plaintiff's body. Suit was not instituted until more than two years following the operation. In reversing the dismissal of the suit it was held that the period of limitation began to run when plaintiff knew or had reason to know of the presence of the foreign object in her body and of the existence of the cause of action against defendant based upon its presence. (35 N.J. at 450, 173 A.2d at 286). The court there noted:

It must be borne in mind that Mrs. Fernandi's claim does not raise questions as to her credibility nor does it rest on matters of professional diagnosis, judgment or discretion. It rests on the presence of a foreign object within her abdomen following an operation performed upon her by the defendant-doctors. Here the lapse of time does not entail the danger of a false of frivolous claim, nor the danger of a speculative or uncertain claim. The circumstances do not permit the suggestion that Mrs. Fernandi may have knowingly slept on her rights but, on the contrary, establish that the cause of action was unknown and unknowable to her until shortly before she instituted suit. Justice cries out that she fairly be afforded a day in court and it appears evident to us that this may be done, at least in this highly confined type of case, without any undue impairment of the two-year limitation or the considerations of repose which underlie it. If, as is to be hoped, the resulting jeopardy to defendants produces a greater measure of care in connection with surgical operations, so much the better.

See also Morgan v. Grace Hospital, Inc., 149 W.Va. 783, 144 S.E.2d 156, 161--162 (W.Va.Sup.Ct.App.1965) and Waldman v. Rohrbaugh, 241 Md. 137, 215 A.2d 825, 830 (Ct.App.1966).

In Rothman v. Silber, 90 N.J.Super. 22, 216 A.2d 18 (App.Div.1966), certif. den., 46 N.J. 538, 218 A.2d 405 (1966), we found Fernandi inapplicable to a case where the malpractice charged was the negligent administration of a 'saddle block' anesthesia. In doing so we noted, among other things, that we were dealing with a drug which was intended to be incorporated into the body and would lose its identity quickly after injection, and liability for the administration of which would necessarily depend upon expert testimony. We concluded that it could not be said that the lapse of time did not entail danger of a false or frivolous claim.

Since our decision in Rothman v. Silber, the Supreme Court has spoken further. In Rosenau v. New Brunswick, 51 N.J. 130, 238 A.2d 169 (1968), it held that, on a homeowner's strict liability claim for damage to property against the manufacturer of a water meter which had burst, his cause of action accrued at the time the defect in the meter was...