Before Judges Long, Kleiner and Kimmelman.
The opinion of the court was delivered by: Kleiner, J.A.D.
 Argued January 21, 1998
On appeal from Superior Court of New Jersey, Law Division, Camden County.
This medical malpractice wrongful death action has had a torturous history. A complaint was initially filed on December 4, 1989, by the Reverend Julius Brown (plaintiff) following the death of his daughter, Jeannette Clemons, *fn1 (Jeannette), on October 18, 1988, after her appendix ruptured causing peritonitis. Plaintiff, as general administrator and administrator ad prosequendum, contended that defendants Dr. Michael Abraham (Abraham), Dr. Larry Cohen (Cohen) and other named defendants *fn2 who treated Jeannette deviated from the expected standard of care, focusing upon an alleged improper diagnosis, thus exposing each to a charge of medical malpractice. Thereafter, plaintiff, with leave of court, filed a fourth amended complaint focusing upon a deviation in the standard of care, post-surgery, resulting in Jeannette's death.
Prior to her death, Jeannette, age forty-nine, who was married but separated from her husband, and who was a licensed practical nurse, moved into her parent's home to care for her mother, Bertha Brown. Her mother died in August 1987. Plaintiff, then age eighty-six, who served as an unpaid part-time Baptist pastor, became despondent following his wife's death. Thus, Jeannette continued to reside with plaintiff and resided with him immediately before her final illness. At trial, it was established that Jeannette assisted her father in his clerical work, provided him with transportation, prepared meals, did laundry, shopped, and cleaned the house. *fn3
Early in the morning of September 14, 1988, Jeannette suffered excruciating pain in her right abdomen, and plaintiff took her to the emergency room at JFK. Devlin diagnosed viral gastroenteritis and prescribed medication but did not admit her. According to Devlin, the reported pain was epigastric, not in the lower gastrointestinal tract. However, her pain continued and she returned to JFK on September 15, 1988, at 5:30 a.m., when she was admitted by a resident. Jeannette came under the care of Abraham at 10:00 a.m. on that date.
Plaintiff visited Jeannette every day. On September 18, he was summoned by doctors to give permission for surgery because Jeannette refused to sign. Plaintiff found Jeannette "like in a state of ecstasy," and not "of herself."
After the surgery, Jeannette was very sick, but plaintiff could not tell if she was in pain because she never communicated. However, as part of plaintiff's case, a church deacon, Solomon Bradley, testified that he visited Jeannette at JFK, saw her grimace as if in pain and heard her say, "Deacon, I'm very hurting." Additionally, plaintiff's adopted son, Robert Carswell, described Jeannette after her first operation as swollen "like a frog." He opined that she appeared to be in pain, although she could not communicate. On September 25, Jeannette was transferred to Cooper Hospital, where dialysis was available. At Cooper, too, Jeanette did not respond, but looked back strangely. Her stomach was distended. Despite further surgery, she did not improve and died on October 18, 1988. The matter was tried before Judge Parrillo and a jury. A verdict of no cause for action was returned on January 11, 1993. On that same date, the Judge granted plaintiff's motion to vacate the verdict based on jury irregularities, discussed infra.
The matter was tried a second time before Judge Little and a jury. *fn4 On February 16, 1995, the jury returned a verdict of no cause for action as to defendant Devlin, but returned a five-to-one verdict of liability against defendants Abraham and Cohen, attributing liability thirty-five percent and sixty-five percent respectively. *fn5 The jury awarded damages totaling $1,125,000, divided as follows: $325,000 for decedent's pain, suffering and medical expenses; $400,000 for plaintiff's loss of his daughter's services; and $425,000 for plaintiff's loss of Jeannette's guidance, counseling, advice and companionship. On March 17, 1995, the Judge vacated the verdict on damages only and granted a new trial on damages. *fn6
On September 7, 1995, the parties orally agreed on the record upon the terms of a consent judgment on damages in the amount of $550,000 while preserving their rights to appeal. When plaintiff refused to sign the documents prepared to memorialize the oral agreement, defendant successfully moved to compel the execution of those documents. *fn7
On appeal, defendant Abraham argues that Judge Fratto erred when he refused to dismiss plaintiff's complaint as time-barred, see N.J.S.A. 2A:14-2 (personal injury) and N.J.S.A. 2A:31-3 (wrongful death), because he was not named as a defendant until more than two years after the commission of alleged malpractice. Plaintiff responds that he timely identified Abraham through a fictitious name and could not reasonably have discovered Abraham's identity earlier.
Judge Fratto denied Abraham's pretrial motion after reviewing the hospital records and concluding that most of them were illegible. *fn8 The Judge concluded that plaintiff first learned of Abraham's true identity on July 12, 1991, during Shinder's deposition, when Shinder identified a signature within the hospital records as being Abraham's. Plaintiff immediately filed a motion to substitute Abraham for "Bill Boe," a fictitious name utilized in the first amended complaint filed on June 18, 1990.
During the first trial, at the close of plaintiff's case, Abraham again raised this issue. Judge Parrillo also refused to dismiss Abraham on the statute of limitations ground. He explained that he was not convinced that Abraham's name or his individual culpability was easily ascertainable within two years of treatment because the name was not legible within the handwritten hospital records.
Use of a fictitious name is permitted by R. 4:26-4, which provides in part: "[I]f the defendant's true name is unknown to the plaintiff, process may issue against the defendant under a fictitious name, stating it to be fictitious and adding an appropriate description sufficient for identification." When diligent discovery discloses the party's name, amendment of the complaint may relate back and allow an action otherwise time-barred. Stegmeier v. St. Elizabeth Hosp., 239 N.J. Super. 475, 484 (App. Div. 1990). A plaintiff who includes a fictitious defendant "is required to proceed diligently to amend the complaint without prejudice to the defendant to be joined." Ibid.
Here, two Judges separately reviewed the handwritten hospital records. Each Judge concluded that the records were illegible, and that plaintiff had been unable to identify Abraham earlier. It is clear that plaintiff properly utilized a fictitious name in his first amended complaint, R. 4:26-4, and then proceeded diligently to seek leave to file a second amended complaint to substitute Abraham for ...