SUZANNE SAVAGE (NEE SAMUEL), PLAINTIFF-RESPONDENT, v. OLD BRIDGE-SAYREVILLE MEDICAL GROUP, P.A., AND PRYSTOWSKY MEDICAL GROUP, DEFENDANTS-APPELLANTS, AND JOHN DOE, M.D., #1-4, (JOHN DOE BEING FICTITIOUS AS TRUE IDENTITY IS UNKNOWN), DEFENDANTS.
Supreme Court of New Jersey
Argued September 27, 1993-Decided November 24, 1993.
633 A.2d 514 | 134 N.J. 241
ORDER
The Supreme Court having determined from its independent review of the record that the ethics charges against respondent have not been established by clear and convincing evidence, and good cause appearing;
It is ORDERED that the ethics charges against SALLY C. PURRAZZELLA of TOMS RIVER, are dismissed and the Order to Show Cause in this matter is discharged.
WITNESS, the Honorable Robert N. Wilentz, Chief Justicе, at Trenton, this 24th day of November, 1993.
633 A.2d 514
SUZANNE SAVAGE (NEE SAMUEL), PLAINTIFF-RESPONDENT, v. OLD BRIDGE-SAYREVILLE MEDICAL GROUP, P.A., AND PRYSTOWSKY MEDICAL GROUP, DEFENDANTS-APPELLANTS, AND JOHN DOE, M.D., #1-4, (JOHN DOE BEING FICTITIOUS AS TRUE IDENTITY IS UNKNOWN), DEFENDANTS.
Argued September 27, 1993-Decided November 24, 1993.
Richard Galex argued the cause for respondent (Garruto, Galex and Cantor, attorneys).
The opinion of the Court was delivered by
O‘HERN, J.
This appeal presents a difficult exercise in application of the discovery rule. The case arises, as have several recent cases, from an experience of tooth discoloration due to medical treatment with tetracycline antibiotics in early childhood.
The history and principles underlying the discovеry rule have been examined by us on numerous occasions, see, e.g., Vispisiano v. Ashland Chemical Co., 107 N.J. 416, 527 A.2d 66 (1987), and need no further elaboration here.
Suffice it to say that the rule‘s “essential purpose * * * is to avoid harsh results that otherwise would flow from mechanical application of a statute of limitations.” [Vispisiano, supra, 107 N.J.] at 426 [527 A.2d 66]. Accordingly, the doctrine “postpon[es] the accrual of a cause of action” so long as a party reasonably is unaware either that he hаs been injured, or that the injury is due to the fault or neglect of an identifiable individual or entity. Id. at 426-27 [527 A.2d 66]; accord Lynch v. Rubacky, 85 N.J. 65, 70 [424 A.2d 1169] (1981); Lopez v. Swyer, [62 N.J. 267, 274, 300 A.2d 563 (1973)]. 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, 386 A.2d 1310 (1978).
[Abboud v. Viscomi, 111 N.J. 56, 62-63, 543 A.2d 29 (1988).]
Plaintiff was born in 1961. Because her status as a minor tolled the running of the stаtute of limitations until she was twenty-one, the question in her appeal is whether a hearing is required to determine if plaintiff was “reasonably unaware” before her twenty-third birthday that she had suffered the injury due to the fault
Here the plaintiff was aware of her injury, namely the tooth discoloration, during her childhood, and she was aware of that when she reached the age of maturity. She was also aware that the medication given to her as a child may have caused the discoloration. That is, she was aware of the likely cause of her injury. Thus at the time she reached the age of maturity, she was aware of the statе of facts from which she could reasonably learn if they equated in law with a cause of action.
The Appellate Division reversed, 260 N.J.Super. 417, 616 A.2d 1307 (1992), reasoning that although plaintiff was indeed aware of the fact that she had suffered injury and that medication was a likely cause of the injury, the record did not demonstrate that she was reasonably aware that the injury was due to any fault in the medication or the care given. The Appellate Divisiоn distinguished our holding in Apgar v. Lederle Laboratories, 123 N.J. 450, 588 A.2d 380 (1991), which held time-barred the claim by one who knew by the time that she reached her twenty-first birthday that her teeth had been discolored and, based on information from several dentists, that medication she had taken as a child had produced the staining. In that case, however, before the plaintiff was eighteen years old, she was under the belief that the medication “had not been thoroughly testеd,” and was under the further assumption that “something [was] not right.” Id. at 453, 588 A.2d 380. The plaintiff‘s theory in Apgar was that although she had reason to believe the defective medication had caused her injury, the statute of limitations did not begin to run on her claim until she learned the identities of the manufacturers of the drugs that she had taken. We disagreed because the identities of the drug manufacturers were readily ascertainable from the plaintiff‘s physicians.
I
Plaintiff was among that group of children who, in the 1960s, were treated with tetracycline antibiotics for infectious childhood diseases. She was born on Jаnuary 27, 1961, shortly after the products were introduced. She suffered from childhood disease that required heavy doses of antibiotics. She recalls that when she was nine or ten years old, her mother told her that discoloration of her teeth may have been the result of taking medicine as a child. Her mother, Marilyn Samuel, recalls such a conversation but not its exact year. Mrs. Samuel recalls that she was informed by one of Suzanne‘s childhood dentists that the discoloration was most likely due to medication that Suzanne had received as a child. Suzanne readily acknowledges that throughout her teens and into her twenties she understood the correlation between the discoloration of her teeth and her childhood medications. She says, however, that it was not until her mother read a 1988 advertisemеnt concerning legal actions for such tetracycline staining that she was aware that she had a claim.
II
In Feldman v. Lederle Laboratories, 132 N.J. 339, 625 A.2d 1066 (1993), we recently reviewed the regulatory history of the introduction and marketing of the tetracycline antibiotics. As early as 1963, with the possible exception of Declomycin, the Food and Drug Administration (FDA) had recommended a suggested statement, to be incorporated in the printed matter that accompanies tetracycline products, cautioning that certain use during early tooth development may cause discoloration of teeth. Sometime after 1964, the Physicians’ Desk Reference (PDR) contained a
This case differs from Apgar, supra, in that plaintiff asserts that the medicine was prescribed between 1961 and 1971, long after the PDR contained a warning that unwarranted use of the tetracyclines could cause permanent tooth discoloration.
As noted, during her early childhood years, Suzanne Savage began noticing that her teeth were discolored. Her mother told her that her condition was due to the medicine she had taken as a child. Can one reasonably assume that Suzanne would have been, as a child, aware of either a defect in the tetracycline products or of a lack of due diligence among the physicians who had treated her? At what later point in her maturing would it have been reasonable to believe that she should have been aware of a defect in the product or the treatment? It was not until 1975 that Dr. Feldman, the physician who prescribed Declomycin for his own daughter, is described as having “questioned [Lederle Laboratories‘] medical representative regarding dental discoloration related to the usе of tetracycline.” Feldman v. Lederle Lab., 97 N.J. 429, 440, 479 A.2d 374 (1984) (Feldman I).
III
Defining when a cause of action accrues does not yield to a neat analysis. Yet, the doctrine has a core meaning:
As stated in Lynch v. Rubacky, 85 N.J. 65, 70 [424 A.2d 1169] (1981), “the discovery rule centers upon an injured party‘s knowledge concerning the origin and existence of his injuries as related to the conduct of another person.” This knowledge contemplates knowledge of injury and knowledge of fault.
[Torcon, Inc. v. Alexian Bros. Hosp., 205 N.J.Super. 428, 435, 501 A.2d 182 (Ch.Div.1985).]
Our сases have regularly emphasized the same two threads of knowledge of injury and knowledge of fault. The seminal case of Lopez v. Swyer, 62 N.J. 267, 300 A.2d 563 (1973), defined the issue
Burd v. New Jersey Telephone Co., 76 N.J. 284, 291, 386 A.2d 1310 (1978), emphasized that a third-party action for a workplace exposure to noxious fumes accrues when a “plaintiff learns, or reasonably should learn, the existence of that state of facts which may equate in law with a cause of action,” because the trial court had ruled that the plaintiff had to be informed by an attorney that he had a cause of action before the statute would commence to run.
In Lynch v. Rubacky, 85 N.J. 65, 424 A.2d 1169 (1981), a patient belatedly learned that the persistent pain in her ankle was due to a physician‘s fault, not the natural process of healing. In ruling that her claim was not time-barred, the Court explained:
The Burd case is not to be viewed as a retreat from Lopez v. Swyer, supra, in the sense of eithеr minimizing or rejecting knowledge of fault as a necessary component of a factual basis for a claim against another. The Burd decision fully embraces Lopez, as well as the medical malpractice decisions cited therein, which have contributed to the evolution of the discovery rule and have consistently considered knowledge of fault as well as injury to be requisite for the accrual of a cause of action.
In many cases, knowledge of fault is acquired simultaneously with knowledge of injury. * * * On the other hand, there are medical malpractice cases where fault is not implicit in injury.
[Id. at 71, 424 A.2d 1169.]
In discussing the role of the Lopez hearing in such a case, the Court wrote: “To the extent that fault is not self-evident or
In Vispisiano, supra, 107 N.J. 416, 527 A.2d 66, a toxic-tort case, a worker exposed to chemicals at a plant did not immediately connect the exposure to his symptoms. The Court wrote: “At times, as in this case, ‘the inquiry must focus upon fault as well as injury where the awareness of the fault is not self-evident in the injury.‘” Id. at 427, 627 A.2d 1139 (quoting Jarusewicz v. Johns-Manville Prods. Corp., 188 N.J.Super. 638, 643, 458 A.2d 156 (Law Div.1983)).
“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 rеasonable 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.
IV
The purpose of statutes of limitations is “to ‘stimulate to activity and punish negligence’ and ‘promote repose by giving security and stability to human affairs.‘” O‘Keeffe v. Snyder, 83 N.J. 478, 491, 416 A.2d 862 (1980) (quoting Wood v. Carpenter, 101 U.S. 135, 139, 25 L.Ed. 807, 808 (1879)). The question to be resolved on the remand hearing is whether Suzanne Savage was negligent in not becoming earlier aware of fault in the administration of the medicines.
Generally the issue will not be resolved on affidavits or depositions since demeanor may be an important factor where credibility is significant. Where credibility is not involved, affidavits, with or without depositions, may suffice; it is for the trial judge to decide.
[Lopez, supra, 62 N.J. at 275, 300 A.2d 563.]
In this casе, the Appellate Division believed that the trial court reasoned that once plaintiff was aware of an injury and once plaintiff was aware of cause in fact, then plaintiff should have been charged as a matter of law with constructive knowledge of fault in the administration of the medication. We agree with the Appellate Division that the premises of that equation (knowledge of injury plus knowledge of cause equals knowledge of fault) do not logically or necessarily produce its conclusion.
Somewhat like Isabel Lynch, Lynch, supra, 85 N.J. 65, 424 A.2d 1169, Suzanne Savage had never been told by her physicians that the discoloration was not the norm or due to some neglect and therefore she may not have attributed the injury to the fault, that is, the possible wrongdoing, of another. The question then is whether she was unaware of the possibility that another‘s conduct might have unreasonably caused her condition. This case, too, differs from Apgar, supra, 123 N.J. 450, 588 A.2d 380, in that the issue is not whether plaintiff should be deemed constructively aware that a defect in the product caused her condition, but rather whether she should have been aware of the possibility that a lack of care in administering the medication had caused her condition. In this sense, her сase is very close to that of the plaintiff in Lopez, supra, 62 N.J. 267, 300 A.2d 563. Maria Lopez knew that she had suffered an injury, burned skin, and that radiation treatments had caused the burning. What she did not know was that her injuries might have been avoidable had not the provider gone out for a cup of coffee while administering the dosage of radiation. Id. at 271, 300 A.2d 563. Ms. Lopez thus knew of her injury and knew of the cause, but she did not know that avoidable fault in administеring the radiation had caused her injury.
The question that the Appellate Division has remanded for resolution is whether Suzanne Savage was reasonably unaware
A remand to explore this threshold issue may ultimately foreclose this lawsuit. For example, the public accounts of tetracycline litigation in 1984, Feldman I, supra, 97 N.J. 429, 479 A.2d 374, recounted the dissemination of public information concerning the defects of tetracycline, and the trial court here could consider those circumstances to determine whether a reasonable person exercising ordinary diligence should have been aware of the possibility that the treating physicians acted with a lack of due care. Expressed another way, the trial court could consider whether Suzanne Savage possessed facts that would have led a reasonable person exercising ordinary diligence to believe that the medical product she had been given as a сhild was defective and that her dentists were possibly neglectful in the treatment provided to her. Against this understanding of the concept of “knowledge of fault,” the Appellate Division‘s statement of the issue is sound, namely:
The trial judge must apply an objective standard and determine whether a reasonable person in plaintiff‘s position should have known that the drugs given to her as a young child may have injured her through the fault of another, and that she thus should have sought appropriate professional assistance.
The judgment of the Appellate Division is affirmed.
CLIFFORD, J., dissenting.
First the Court zigs, see Apgar v. Lederle Laboratories, 123 N.J. 450, 588 A.2d 380 (1991), then, in today‘s case, it zags by
Not only is that rule new, it resurrects a notion that I thought we had long since buried, namely, the requirement that a plaintiff discover actionable fault before the statute of limitations begins to run. Fifteen years ago, in a case that has remained good law until today, this Court said:
The statute of limitations necessarily imputes conclusively to a claimant knowledge that the law affords or may afford a cause of action on the basis of those facts of injury and causal relationship which in law do evoke a cause of action. * * * The discovery principle modifies the conventional limitations rule only to the extent of postponing the commencement of accrual of the cause of action until plaintiff learns, or reasonably should learn, the existence of that state of facts which may equate in law with a cause of action. There is no suggestion in any of the leading cases in this area that accrual of the cause of action is postponed until plaintiff learns or should learn the state of the law positing a right of recovery upon the facts already known to or reasonably knowable by the plaintiff.
[Burd v. New Jersey Tel. Co., 76 N.J. 284, 291-92, 386 A.2d 1310 (1978) (second emphasis added).]
Here, as did the plaintiff in Apgar, plaintiff knew early on that her tooth discoloration had been caused by one of the many medications she had taken as a child, but not until 1988 (she had turned twenty-one in 1982) did she learn that the damaging drug was tetracycline and that her doctors may have acted improperly
Who will volunteer to explain this result to Kelly Ann Apgar? Relying on Burd, supra, 76 N.J. 284, 386 A.2d 1310, a unanimous Court decided, in March 1991, that in Ms. Apgar‘s case the trial court should have entered summary judgment for defendants. Here is the heart of our ruling:
In this case Ms. Apgar knew by the time she reached her twenty-first birthday that her teeth had been discоlored and, based on information from several dentists, that medication she had taken as a child had produced the staining. No one gave her a contrary opinion. Her own belief was that the medicine she had ingested as a child had caused the condition. She was therefore aware of a “state of facts which may equate in law with a cause of action.” Burd, supra, 76 N.J. at 291, 386 A.2d 1310 (emphasis deleted). On that view of the case the statute of limitations expired on August 19, 1984, two years after plaintiff‘s twenty-first birthday. Inasmuch as she did not start suit until March 22, 1988, her claim is time-barred.
I would reverse the judgment of the Appellate Division and reinstate the judgment of the trial court in favor of defendants.
Justices POLLOCK and GARIBALDI join in this opinion.
For reversal-Justices CLIFFORD, POLLOCK and GARIBALDI-3.