Caravaggio v. D'AGOSTINI

765 A.2d 182, 166 N.J. 237, 2001 N.J. LEXIS 6
CourtSupreme Court of New Jersey
DecidedJanuary 22, 2001
StatusPublished
Cited by110 cases

This text of 765 A.2d 182 (Caravaggio v. D'AGOSTINI) is published on Counsel Stack Legal Research, covering Supreme Court of New Jersey primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Caravaggio v. D'AGOSTINI, 765 A.2d 182, 166 N.J. 237, 2001 N.J. LEXIS 6 (N.J. 2001).

Opinions

The opinion of the Court was delivered by

LONG, J.

The discovery rule, incorporating as it does a notion of simple justice, has been anything but simple in application, as evidenced by the amount of litigation it has spawned. Decades after its enunciation, lawyers and judges are still grappling with its application. This is another such case.

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Plaintiff Patricia Caravaggio and her husband were seriously injured in a motorcycle accident on May 23, 1993. Mrs. Caravaggio’s specific injury was a segmental fracture of the femur, also called the thighbone. She was taken by ambulance to Morristown [241]*241Memorial Hospital where the defendant, Dr. Robert D’Agostini, an orthopedic surgeon, performed surgery to repair the bone. Dr. D’Agostini “reamed out” Mrs. Caravaggio’s femur bone, inserted a rod manufactured by the Synthes Corporation in the hollow of the bone, and affixed the rod with screws through the bone at both ends to stabilize the fracture.

Mrs. Caravaggio was discharged from the hospital and underwent physical therapy at home, remaining under the care of Dr. D’Agostini who had previously explained to her that she could expect an average healing time of twelve weeks, and that among the complications possible were “infection, blood clots, blood loss or anemia, failure to heal, need for rod removal later, rod breakage.” On June 15, 1993, Dr. D’Agostini modified the physical therapy prescription to permit as much weight-bearing on the injured leg as Mrs. Caravaggio could tolerate. On July 13, 1993, Dr. D’Agostini told Mrs. Caravaggio to increase the vigor of her physical therapy, noting that she should continue to use crutches and to bear weight on her injured leg. Two weeks later on July 28, 1993, Mrs. Caravaggio felt a “snap” in her leg while the physical therapist was bending her knee.

Dr. D’Agostini examined Mrs. Caravaggio at his office on August 4, 1993. An x-ray of the leg revealed that the rod had broken through the screw holes. Dr. D’Agostini told Mrs. Caravaggio that he was “very much surprised” that a rod manufactured by Synthes, “probably the best manufacturer of rods in the world”, could break in eight weeks. According to D’Agostini,

I have had ... totally irresponsible people throw away their crutches, walk on these things and they never break.
I was shocked that the thing broke and so I told them [the Caravaggios] that was surprising. They were, as I — they can characterize their recollections, but it’s my recollection that they were, you know, more mad at the physical therapist, that it had been the vigor or physical therapy bending the knee.
And I told them no, that that was not the case. That the physical therapist was doing what I told them to do and that in any case no single bend, no human being could take that rod and snap it, no physical therapist with a rod inside Somebody’s [242]*242leg could cause that rod to snap unless there was something structurally wrong with it. (emphasis added).

Dr. D’Agostini explained to Mrs. Caravaggio that her injuries would now take longer to heal and could require additional surgery to replace the rod. First, however, he recommended bracing and conservative treatment to attempt to avoid additional surgery. Mrs. Caravaggio accepted his recommendation. She continued with follow-up visits, but by September 28, 1993, the doctor determined that her femur would not heal without further surgery.

In early October, Mrs. Caravaggio obtained a second opinion from an orthopedist for insurance purposes. That physician agreed with Dr. D’Agostini’s recommendation of surgery and, although he indicated that perhaps Dr. D’Agostini might have chosen a thicker rod to implant, did not suggest directly or obliquely that Mrs. Caravaggio should question the medical care she received from Dr. D’Agostini. Mrs. Caravaggio continued in Dr. D’Agostini’s care and he performed the second surgery on October 21, 1993, to replace the broken rod. In that surgery, he “reamed” the femur bone more extensively and inserted a thicker and longer rod.

After the second surgery, Dr. D’Agostini informed Mrs. Caravaggio that there was something wrong with the rod and that she should take it to the lawyer who was representing her in her lawsuit against the operator of the car that struck her. The rod was then sent to the hospital’s pathology lab, and at some later date (not determined with specificity in the record) the rod was given to the attorney representing Mrs. Caravaggio in her ongoing auto negligence litigation.

After Mrs. Caravaggio’s discharge, in May of 1994, her husband continued to be treated by Dr. D’Agostini well into the fall of 1995, over two and one-half years from the accident. During that period, Mr. and Mrs. Caravaggio both referred family and friends to him.

[243]*243In the meantime, on July 28, 1994, Mrs. Caravaggio’s counsel sent the rod to be analyzed by J. Stephen Duerr, President of Metuchen Analytical. Metallurgie tests revealed that the rod was not defective. The record is unclear exactly when that information was received, although it was certainly after July 1994.

In late 1994 or early 1995, Mrs. Caravaggio met a new attorney who suggested that she might have a medical malpractice claim. She retained that attorney who, in turn, referred her to her present counsel, who filed a complaint on her behalf against Dr. D’Agostini on September 15, 1995.

Dr. D’Agostini moved for summary judgment, arguing that Mrs. Caravaggio’s complaint was barred by the expiration of the two year statute of limitations. The trial court ordered a discovery rule hearing as required by Lopez v. Swyer, 62 N.J. 267, 300 A.2d 563 (1973). After the hearing, at which the facts related in this opinion were established and presumably viewed in a light most favorable to Mrs. Caravaggio pursuant to R. 4:46-2(c), the court granted the motion, concluding that Mrs. Caravaggio knew or should have known that she had an actionable claim against Dr. D’Agostini no later than August 4, 1993:

[Plaintiff knew she suffered an injury on July 28 or 29, 1993. At that time she believed that the injury was caused by the physical therapist and she expressed that opinion to defendant on August 4, 1993, when she learned that the rod had broken.
Arguably, defendant’s statement may have “lulled” plaintiff into believing that the wrongdoer was neither the physical therapist nor the defendant, because implicit in defendant’s statement was an assurance that the physical therapy defendant ordered was actually proper.

Nevertheless, the court concluded that because Mrs. Caravaggio knew she was injured on August 4, 1993, and that “the injury was the product of someone’s wrongdoing,” summary judgment was [244]*244appropriate because her cause of action accrued on that date and her complaint was filed two years and fifty-two days later.1

The Appellate Division affirmed the trial court’s judgment because “the judge’s factual findings and conclusions of law [on the statute of limitations issue] are supported by sufficient evidence in the record and the applicable law.” Caravaggio v. D’Agostini, No. A-91-98T5, slip op. at 4 (App.Div. November 15, 1999). According to the Appellate Division, and based on statements she made to Dr.

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Cite This Page — Counsel Stack

Bluebook (online)
765 A.2d 182, 166 N.J. 237, 2001 N.J. LEXIS 6, Counsel Stack Legal Research, https://law.counselstack.com/opinion/caravaggio-v-dagostini-nj-2001.