Date: 01-22-2001

Case Style: Caravaggio v. D'Agostini

Case Number: A-13-2000

Judge: Long

Court: Supreme Court of New Jersey

Plaintiff's Attorney: Charles S. Lorber of Mandelbaum, Salsburg, Gold, Lazris, Discenza & Steinberg, Fairfield, New Jersey

Defendant's Attorney: Melvin Greenberg of Greenberg Dauber Epstein & Tucker, Newark, New Jersey

Description: This case involves application of the discovery rule in a medical malpractice action where the plaintiff files a complaint fifty-two days beyond the two year statute of limitations.

Plaintiff Patricia Caravaggio and her husband were seriously injured in a motorcycle accident on May 23, 1993. Mrs. Caravaggio underwent emergency surgery to repair a broken femur bone. Dr. D'Agostini performed the surgery, inserting a metal rod into Mrs. Caravaggio's femur to stabilize the fracture. Upon being discharged, Mrs. Caravaggio pursued physical therapy at home. Subsequently, Mrs. Caravaggio was instructed by Dr. D'Agostini to bear weight on her injured leg and to increase the “vigor” of her physical therapy. On July 28, 1993, Mrs. Caravaggio experienced a “snap” during therapy, later determined to be a breakage of the rod.

After examining Mrs. Caravaggio on August 4, 1993, Dr. D'Agostini advised her that he could not understand how the rod, manufactured by Synthes Corporation, could have broken in eight weeks. He further commented that the rod could not have broken “unless there was something structurally wrong with it.” On his advise, Mrs. Caravaggio underwent conservative treatment. But on September 28, 1993, Dr. D'Agostini recommended additional surgery. After obtaining a second opinion, Mrs. Caravaggio underwent the recommended surgery, also performed by Dr. D'Agostini. This time, Dr. D'Agostini inserted a longer, thicker rod and took additional precautions with the surgery.

On September 15, 1995, after learning through metallurgical tests that the rod in question was not defective, and after consultation with legal counsel, Mrs. Caravaggio filed a malpractice complaint against Dr. D'Agostini. Dr. D'Agostini moved for summary judgment.

The trial court, after a discovery rule hearing pursuant to Lopez v. Swyer, 62 N..J. 267 (1973), held that plaintiff's claim was barred by the two year statute of limitations. In an unreported decision, the Appellate Division affirmed.

The Supreme Court granted defendant's petition for certification.

HELD: Plaintiff's complaint was filed within the two year statute of

Click here for the full text of the opinion.