The opinion of the court was delivered by: Per Curiam
Argued January 18, 2000-- Decided June 5, 2000
On certification to the Superior Court, Appellate Division.
This case involves a transitional application of the principles recently announced in Lowe v. Zarghami, 158 N.J. 606 (1999) that govern the late notice of tort claims against public entity health-care providers under the Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 12-3. The Appellate Division decided this case on May 24, 1999, fourteen days before our decision in Lowe.
In Lowe, the Court found that the status of a physician health-care provider as an employee of the State was "obscured." 158 N.J. at 630. This created the extraordinary circumstances permitting notice of claim to be filed more than ninety days after the cause of action accrues. The Court directed that in future cases and to resolve patients' doubt surrounding the status of their physician health-care providers, the State teaching hospital must require clinical professors employed by it to advise their patients, both orally and in writing, that they are employees of a public entity. Such notice should be given to a patient as soon as practicable. The Court held that "[t]hose steps, if taken, . . . should make patients more aware that their physicians are public employees [of the State] entitled to notice under the TCA." 158 N.J. at 631. This case arose before the Court's decision in Lowe. Although there were in hindsight indications of the status of the institution, no notice similar to that suggested by Lowe was given by any of plaintiff's attending physicians or administrators of the institution involved. Rather than remand this case to the Appellate Division, we are satisfied that in the circumstances here, circumstances that should not recur because of Lowe, the ninety-day notice provisions of the TCA should be tolled to allow the claimant to seek compensation under the TCA. In future cases, compliance with Lowe will bar similar such claims.
Under the New Jersey Tort Claims Act, a party has ninety days, from the time a claim accrues, to file a notice of claim. N.J.S.A. 59:8-8. Section 59:8-8 provides that:
A claim relating to a cause of action for death or for injury or damage to person or to property shall be presented as provided in this chapter not later than the ninetieth day after accrual of the cause of action. After the expiration of six months from the date notice of claim is received, the claimant may file suit in an appropriate court of law. The claimant shall be forever barred from recovering against a public entity or public employee if ... [h]e [or she] failed to file his [or her] claim with the public entity within 90 days of accrual of the claim except as otherwise provided in section 59:8-9.... [Id. at 59:8-8(a).]
The purpose of the ninety-day limit is to "compel a claimant to expose his [or her] intention and information early in the process in order to permit the public entity to undertake an investigation while witnesses are available and the facts are fresh." O'Neill v. City of Newark, 304 N.J.Super. 543, 549 (App. Div. 1997) (citing Lutz v. Township of Gloucester, 153 N.J. Super. 461, 466 (App. Div. 1977)).
N.J.S.A. 59:8-9 allows the filing of a late notice of claim. Before 1994, a plaintiff proceeding under section 59:8-9 was required to show "sufficient reasons" for failing to file within the ninety-day period. A 1994 amendment provides:
A claimant who fails to file notice of his [or her] claim within 90 days as provided in section 59:8-8 of this act, may, in the discretion of a judge of the Superior Court, be permitted to file such notice at any time within one year after the accrual of his [or her] claim provided that the public entity or the public employee has not been substantially prejudiced thereby. Application to the court for permission to file a late notice of claim shall be made upon motion supported by affidavits based upon personal knowledge of the affiant showing sufficient reasons constituting extraordinary circumstances for his [or her] failure to file notice of claim within the period of time prescribed by section 59:8-8 of this act or to file a motion seeking leave to file a late notice of claim within a reasonable time thereafter; provided that in no event may any suit against a public entity or a public employee arising under this act be filed later than two years from the time of the accrual of the claim. [N.J.S.A. 59:8-9.]
The statute "does not define what circumstances are to be considered `extraordinary' and necessarily leaves it for a case-by-case determination as to whether the reasons given rise to the level of `extraordinary' on the facts presented." Lowe v. Zarghami, supra, 158 N.J. at 626 (citing Allen v. Krause, 306 N.J.Super. 448, 455 (App. Div. 1997)).
As noted, in Lowe v. Zarghami, supra, the New Jersey Supreme Court found that extraordinary circumstances existed for a patient who was justifiably unaware that her physician was a public employee. 158 N.J. at 629. The defendant, plaintiff's treating physician, was a clinical professor employed by the University of Medicine and Dentistry of New Jersey ("UMDNJ") but who practiced medicine at the Robert Wood Johnson University Hospital, a UMDNJ-affiliated private hospital. The Court found that the apparent status of the defendant as a private physician obscured his true status as a public employee. Ibid. Because the plaintiff had no reason to suspect that her doctor was associated with the UMDNJ and acted with diligence in pursuing her medical malpractice claim, the Court allowed the late notice of claim in light of the "extraordinary circumstances." Id. at 629-30.*fn1
The question before this Court is whether the Ventolas, like the plaintiffs in Lowe, have demonstrated "extraordinary circumstances" for their ...