(dissenting). While I agree that the discovery rule should apply to a claim of medical malpractice based upon improper treatment and diagnosis, I do not share the view that recognition of the rule automatically affords plaintiffs two years after the date of discovery to institute suit (absent defendants’ showing of prejudice). As I have endeavored to indicate in my dissenting opinion in our companion case of Fox v. Passaic Gen. Hosp., 71 N. J. 122 (1976). I think the rule should give a plaintiff, who by force of equitable principles successfully invokes it, the benefit of an “expanded” statute of limitations only upon a showing (a) that a plaintiff who discovers his cause of action after expiration of the statutory time limit has filed his complaint expeditiously, Fernandi v. Strully, 35 N. J. 434, 442, 451 (1960); or (b) that a plaintiff who discovers his cause of action before the running of the two-years time limit has instituted suit after that limit because the period remaining between discovery and expiration of the statute did not, under the particular circumstances, constitute a reasonable time within which expeditiously to file his complaint, see Rothman v. Silber, 90 N. J. Super. 22, 32, 37-8 (App. Div.), certif. den., 46 N. J. 538 (1966) (concurring opinion of Gaulkin, S. J. A. D.).
I mean no disrespect to anyone connected with this lawsuit, and assuredly not to those of my brethren who see this ease differently from the way I do; but I am constrained to observe that tested by any requirement of expeditious institution of suit, it impresses me as at best a trifle ingenuous and at worst just plain fatuous to conclude that plaintiffs *143should not he held to the ordinary statutory period for the formal prosecution of their claims. Taking October 8, 1971 as the last date of treatment, it should be noted that at some point within the succeeding five and a half months plaintiffs were sufficiently suspicious of their treatment at defendants’ hands to have engaged counsel for the purpose of pursuing the matter further. On March 16, 1972 the attorney wrote the physician who performed corrective surgery to elicit his opinion as to whether defendants had committed malpractice. On June 14, 1972 that physician expressed the view that Mrs. Moran had not received “proper attention.”1 In December, 1972 a different doctor categorically characterized defendants’ treatment as malpractice. On January 9, 1973 plaintiffs’ attorney wrote each defendant threatening suit on account of negligent treatment of Mrs. Moran. After reviewing these facts Judge Crahay, dissenting below, declared :
At the very best, from plaintiffs’ standpoint, [the trial judge] could not have found a “discovery” date later than January 9, 1973 (when counsel wrote defendants). As I see it, an undisturbable finding would have been a much earlier date, at least June 14, 1972 (when Dr. Douvres rendered his opinion to plaintiffs’ counsel). Whatever the fact •— and I would let plaintiffs choose the date — I view the error here as one of law calling for summary disposition.
*144Exactly so. Plaintiffs had almost nine full months from January 9, 1973 within which to meet the limit of the statute of limitations. They did not do so, despite the fact, again as emphasized by Judge Crahay, that “[w]ell within the expiration of the two year period of Mrs. Moran’s last attendance by defendants, plaintiffs at least (1) were aware of their claims; (2) engaged experienced counsel to pursue them; (3) had an expert’s expression of improper treatment; (4) had a willing medical trial witness; (5) had written — through counsel — of their intentions to make claim; and (6) had threatened a timely suit.”
In these circumstances, with at least nine months remaining after “discovery” before the statute of limitations barred plaintiffs’ suit, I would hold that more than reasonable time remained for them expeditiously — even casually, languidly, desultorily, at their leisure — to institute suit. Ordinarily in the context of statutes of limitations we speak in terms of sleeping on one’s rights; but this case comes closer to outright hibernation. That being so, I would give effect to considerations of repose and to the statute. I therefore vote to reverse and enter judgment for defendants.
Mountain and Sohreibee, JJ., join in this dissenting opinion.
For affirmance—Chief Justice Hughes, Justices Sullivan and Pashman and Judge Conford—4.
For reversal—Justices Mountain, Clifford and Schrbiber—3.
The majority points out that counsel appraised this opinion as “equivocal.” Consideration of the doctor’s amplification of his conclusion that “proper attention” had not been given Mrs. Moran leaves little room for uncertainty as to how he felt. Deferring to counsel for evaluation of the “legal merits as to whether malpractice is involved or not,” the doctor gave the basis for his opinion as follows :
If the patient did not truly have a barium enema or sigmoidoscopy in the entire four years this is not proper practice. Most importantly, however, if the patient did have regular visits to the doctor from July until October, 1971 then I cannot conceive any doctor allowing the patient’s condition and state to deteriorate to the critical level in which I found her and not take measures to secure better treatment for her. Does this constitute malpractice or just poor “doctoring”? This you will have to evaluate.