On appeal from the Superior Court of New Jersey, Law Division, Middlesex County.
Before Judges Long, Stern and Kimmelman.
The opinion of the court was delivered by: Kimmelman, J.A.D.
These appeals were separately docketed, briefed, and argued. Although the factual patterns of the appeals differ somewhat, the appeals parallel each other with respect to the applicable legal principles. We have therefore elected to consolidate the cases for the purpose of decision. Both appeals involve the same legal questions: Whether defendant physicians were each acting as private practitioners when performing surgery on plaintiffs, or acting as public employees of defendant hospital and, if the latter, whether there were "extraordinary circumstances" entitling plaintiffs to file a late notice of claim under N.J.S.A. 59:8-9 of the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 to 12-3.
Initially, in each matter, the trial Judge refused to grant plaintiffs' applications for leave to file a late notice of claim. But, on June 5, 1997, the trial Judge, relying on our decision in Dunn v. Borough of Mountainside, 301 N.J. Super. 262 (App. Div. 1997), entered, sua sponte, orders reversing his initial decision. Plaintiffs were then permitted to file a late notice of claim in each case. After the denials of their motions for reconsideration, defendants made applications to this court for leave to file interlocutory appeals. On August 14, 1997, we granted leave to file the interlocutory appeals.
In A-7057-96, plaintiff Richard Allen *fn1 underwent cardiac bypass surgery at defendant Robert Wood Johnson University Hospital (RWJUH). The surgery, which was intended to relieve blockages near plaintiff's heart, was performed by defendant Tyrone J. Krause, M.D., during December 1995. On or about June 18, 1996, plaintiff Allen was informed by his cardiologist that the December 1995 cardiac surgery "had been done incorrectly and that two blockages remained." *fn2 Plaintiff waited until May 7, 1997, to consult with counsel, some eleven months after he had been given information indicating that he had grounds for a possible lawsuit related to the surgery. The next day, plaintiff's counsel moved for leave to file a late notice of claim, certifying that it was not known whether one of the potential defendants would claim "public employee status." In plaintiff Allen's supporting certification, he said:
"From the time I first came under the care and treatment of Dr. Krause and the physicians at Robert Wood Johnson University Hospital, I have always been under the impression that Dr. Krause was a private physician and that the people who cared for me at Robert Wood Johnson were employees of that Hospital. None of my health care providers have ever informed me that they were not private doctors or employees of Robert Wood Johnson University Hospital, and I have never received any information from any other source to that effect."
In opposition, it was certified that defendant Krause was an employee of the University of Medicine and Dentistry of New Jersey (UMDNJ). Defendants in Allen argued the following facts in their brief to the trial court:
"Plaintiff's surgery was performed at Robert Wood Johnson University Hospital ("RWJUH") by the defendant Tyrone J. Krause, M.D., an employee of the University of Medicine and Dentistry of New Jersey" ("UMDNJ").
RWJUH is a hospital affiliated with UMDNJ. Certain physicians who work at RWJUH may claim public employee status by virtue of their affiliation with the Robert Wood Johnson Medical School, which is affiliated with UMDNJ. Plaintiff's counsel, the law firm of Blume, Goldfaden, Berkowitz, Donnelly, Fried & Forte, P.C. was aware of this relationship at all relevant times.
UMDNJ is a public entity under Chapter 8 of Title 59 under the New Jersey Tort Claims Act ("The Act") and Tyrone J. Krause, M.D. is an employee of a public entity. Pursuant to the Act, Dr. Krause is entitled to receive a notice of tort claim within ninety days from accrual of the alleged injury before a suit can be filed.
Defendants contended that plaintiff Allen's application for leave to file a late notice of claim should be denied because Dr. Krause was an employee of a public entity and that there had been no showing of "extraordinary circumstances," as required by N.J.S.A. 59:8-9. Defendant's counsel supported this contention with proof that plaintiff's counsel knew, from unrelated but similar cases, that defendant Krause may well have been acting as a public employee at the time of plaintiff Allen's surgery.
As we have indicated, after an initial denial, leave to file a late notice of claim was granted by the trial court. We granted leave to appeal ...