Plaintiff, Maria Lopez, brought suit seeking damages for personal injuries allegedly attributable to the negligence and other tortious misconduct of four defendants, all of whom are physicians. The complaint charged medical malpractice, fraud and conspiracy. Her husband, Frank Lopez, joined as plaintiff, seeking damages per quod.
All defendants moved for summary judgment. As to defendant, Swyer, the motion was granted; the motions of the other three defendants were denied. Plaintiffs and the unsuccessful defendants sought leave to appeal. The Appellate Division reserved decision on these motions, at the same time remanding the case to permit the taking of the depositions of all defendants — plaintiffs' depositions were already before the court — to be followed by reargument before the trial judge. At the reargument the trial court granted summary judgment in favor of all defendants. Upon plaintiffs' appeal, the Appellate Division reversed and remanded the suit for trial as to all parties. 115 N.J.Super. 237 (1971). Of the several defendants, Swyer alone sought certification, which we granted. 59 N.J. 361 (1971). Accordingly we deal only with the plaintiffs' claims against him; we do not pass upon any of the issues pertaining to the other three defendants.
The facts are set forth fully in the opinion of the Appellate Division, 115 N.J. Super. at 241-245, and will be only briefly restated here.
This suit was commenced September 18, 1967. Dr. Swyer is charged with having been negligent in administering radiation. Doctors Danon, Osder and Stricker are charged with negligence in that they gave bad advice, with having falsely reassured the plaintiffs and with having concealed knowledge, which it is alleged they possessed, of Dr. Swyer's alleged malpractice. It is also asserted that all four physicians conspired together to effect this concealment.
We agree with the Appellate Division that the most difficult of the questions presented has to do with the application of the statute of limitations as it relates to plaintiffs' claim for negligence against Dr. Swyer. As will be seen from what is said above, his last contact with Mrs. Lopez was in 1962 and suit was not commenced until 1967. The statute applicable to personal injury claims requires that they be brought within two years of the accrual of the cause of action.
The Appellate Division concluded that the trial court had erred in granting Dr. Swyer's motion for summary judgment and as to this we agree, substantially for the reasons given. That court's decision also directed a remand for a full trial at which there would be submitted to the jury the question of the alleged negligence of all the defendants, the fraud charged against Danon, Osder and Stricker, the alleged conspiracy, "together with the question as to when plaintiffs knew or should reasonably have known the nature of Maria's illness and its causal relationship with the alleged negligence." 115 N.J. Super. at 252. Referring now only to plaintiffs' negligence claim against Swyer, the obvious purpose of submitting to the jury the issue embraced in the words last quoted is to elicit a factual determination upon which to rest a decision as to whether or not the statute of limitations may be interposed as a bar to the action. While we entirely agree with the views expressed by the court below leading to the conclusion that there should be a remand for the purposes set forth above, we have concluded that the direction to the trial court upon such remand should be modified in one important respect. This Court seems never to have deliberately considered the precise point, but we now hold that whenever a plaintiff claims a right to relief from the bar of the statute of limitations by virtue of the so-called "discovery" rule, the question as to whether such relief is properly available shall be deemed an issue for determination by the court rather than by the jury.
While Fernandi expressly confined the discovery rule to foreign body malpractice actions, 35 N.J. at 450, 451, subsequent decisions have gone much further and have acknowledged the relevance of the doctrine whenever equity and justice have seemed to call for its application. Thus in New Market Poultry Farms, Inc. v. Fellows, 51 N.J. 419 (1968) this Court found that plaintiff's cause of action against defendant, a professional engineer and land surveyor, arising from the latter's negligent miscalculation of acreage, did not accrue when the error was made, but rather eleven years later when it was discovered. In Diamond v. N.J. Bell Telephone Co., 51 N.J. 594 (1968) plaintiffs did not discover that defendant's installation of a conduit had apparently damaged their sewer line until nine years after the event. It was held that the statute did not start to run until plaintiffs became aware of the wrong. In Yerzy v. Levine, 57 N.J. 234 (1970), we affirmed a decision of the Appellate Division. 108 N.J.Super. 222 (1970), holding that a patient might sue for injuries resulting from an improper operative procedure, more than two years after the event, if she could establish that she had not previously known, nor could she reasonably have known, that she might have a basis for an actionable claim. See also, Farrell v. Votator Division of Chemetron Corporation, 62 N.J. 111 pp. 115, 116 (1973).
The discovery rule is essentially a rule of equity. It has been said that in equity lies its genesis. Owens v. White, 342 F.2d 817, 820 (9th Cir.1965). Like so many other equitable doctrines it has appeared and is developing as a means of mitigating the often harsh and unjust results which
It may also be unjust, however, to compel a person to defend a law suit long after the alleged injury has occurred, when memories have faded, witnesses have died and evidence has been lost. After all, statutes of limitations are statutes of repose and the principal consideration underlying their enactment is one of fairness to the defendant. Developments in the Law-Statutes of Limitations, 63 Harv. L. Rev. 1177, 1185 (1950). So in each case the equitable claims of opposing parties must be identified, evaluated and weighed. Where, as is often the case, they cannot be wholly reconciled, a just accommodation must be reached. We think this can better be done by a judge than by a jury. In the first place the question as to the application of the statute of limitations is ordinarily a legal matter and as such is traditionally within the province of the court. Furthermore, submission of the issue to a jury is in every sense awkward. It is true that the time of discovery is a question of fact, and so could be left to a jury. But, as we have indicated, the
The determination by the judge should ordinarily be made at a preliminary hearing and out of the presence of the jury.
In addition to charging Dr. Swyer with negligence, plaintiffs also assert that he conspired with Doctors Danon, Osder, and Stricker to conceal his alleged wrongdoing. The conspiracy charge has obviously greater significance against the other defendants than against Swyer. Proof of conspiracy will in no way enlarge plaintiff's claim — once proven — against him, at least as to compensatory damages. It is probably pertinent to recall that "[t]he gravamen of an action in civil conspiracy is not the conspiracy itself but the underlying wrong which, absent the conspiracy, would give a right of action." Board of Education, Asbury Park v. Hoek, 38 N.J. 213, 218 (1962).
For affirmance and remandment — Chief Justice WEINTRAUB, Justices JACOBS, PROCTOR, HALL and MOUNTAIN, and Judges CONFORD and SULLIVAN — 7.
For reversal — None.