Before Judges Stern, Kestin and Steinberg.
The opinion of the court was delivered by: Kestin, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
On appeal from the Superior Court of New Jersey, Law Division, Civil Part, Somerset County.
Plaintiff in this medical malpractice case appeals from the trial court's order granting the only remaining defendant's motion for dismissal of the claim against her on statute of limitation grounds, and from the trial court's order denying reconsideration. We affirm.
The complaint, stating claims arising from the death of Diane Marie Johnston (decedent) on December 7, 1993, was filed on August 16, 1995. A number of defendants were identified in the complaint; others were sued in fictitious names as authorized by R. 4:26-4. It later developed that Dr. Chandralekha Guha, the movant, was alleged to be one of the defendants previously designated fictitiously.
Documents in hospital records available to plaintiff at the time the complaint was filed, including the consent form which plaintiff had signed, contained Dr. Guha's name as the physician who performed a lumbar puncture procedure upon which plaintiff's claim of negligence was, in part, based. The name, as it appeared in those documents was illegible, however. Although plaintiff had met and briefly consulted with Dr. Guha immediately preceding the lumbar puncture procedure on her daughter, plaintiff could not remember the physician's name, and could only recall her physical features. Based on these factors, plaintiff elected to proceed initially on a fictitious defendant basis as to that physician. The sixth count of the complaint as initially filed alleged generally only that fictional defendants, "unidentified medical personnel . . . of the defendant Muhlenberg Regional Medical Center, failed to properly perform the work necessary for the care, diagnosis and treatment of the [decedent]," along with the necessary allegation of causal connection. No other "description sufficient for identification", R. 4:26-4, either categorical or specific was included in this complaint.
Discovery proceeded. None of the named defendants, including the hospital and a physician associated with Dr. Guha in a medical practice, in their answers to interrogatories, identified Dr. Guha by name as one who had participated in treating the decedent, until defendant Fishberg's answers to interrogatories were provided on April 24, 1996. On the basis of the information provided by Dr. Fishberg, plaintiff, on August 19, 1996, moved for leave to amend the complaint to name Dr. Guha. The proposed amended complaint was submitted with the motion as required by R. 4:9-1. The motion was granted on September 13, 1996. The amended complaint, was filed on November 25, 1996. The summons to Dr. Guha was issued with a date of March 25, 1997; service was effected some time later. By the time the amended complaint was served on Dr. Guha, plaintiff's claims against all other defendants had been dismissed either by grants of motions for summary judgment or on a voluntary basis. Dr. Guha's answer was filed on August 21, 1997.
On March 5, 1998, Dr. Guha moved for summary judgment returnable April 3, 1998. Judge Edward M. Coleman heard oral argument on the scheduled return date and, on the same day, entered an order granting the motion and dismissing the complaint as to Dr. Guha with prejudice. In granting the motion, Judge Coleman recounted the procedural history of the case, summarized the arguments of the parties, and observed:
[N.J.S.A.] 2A:14-2 provides that every action in law for injury caused by wrongful neglect or default of any person within the State shall be commenced within two years. Standard two year Statute of Limitations, the time within which these medical malpractice claims must be filed. That is when the party discovers by an exercise of reasonable diligence and intelligence or should have discovered the basis for an actionable claim.
There is no question here that was discovered immediately. This is a wrongful death suit. It's not an accrual situation. The standard discovery rules apply. * * *
Court Rule 4:26-4 provides that . . . if the defendant's true name is unknown to the plaintiff, the process may be issued against the defendant under fictitious names, stating it to be fictitious, and adding the appropriate designee description sufficient for identification. Under this Rule, the substitution of an identified defendant for a fictitious defendant after the Statute of Limitations has run may relate back to the original filing of the complaint. * * *
The Rule applies to assure survival of meritorious causes of action when the party knows or has reason to know her injury has been negligently inflicted but cannot at the time of the injury and within a reasonable time ascertain the wrongdoer.
As part of the Rule, however, the plaintiff is required to exercise due diligence to learn the identity of the fictitious person prior to the running of the Statute of Limitations, and lack of due diligence ...