On certification to the Superior Court, Appellate Division.
Helena Matynska suffered complications following hip replacement surgery that she contends resulted from negligent post-operative care. Matynska filed suit against Robert Wood Johnson University Hospital, eleven doctors and nurses, and "John Doe, M.D. and Jane Roe, R.N." Dr. Mark Feierstein was not a named defendant, although, for about three days after her surgery, Dr. Feierstein "covered" hospital rounds for his partner, Matynska's treating orthopedic surgeon, Dr. Steven Fried.
Dr. Feierstein's name appears twice in Matynska's hospital chart, yet she claims that she was unable to timely know that he was in any way responsible for her treatment because she never met him, was not advised that he would be "covering" for Dr. Fried, and because the hospital chart references to Dr. Feierstein did not disclose his role in her care and treatment.
Two years after the institution of suit, and four years after the alleged negligence, Matynska filed a motion to amend her complaint to name Dr. Feierstein as a direct defendant in place of John Doe, M.D., pursuant to the fictitious-name rule, R 4:26-4. The trial court denied the motion and, on appeal, the Appellate Division affirmed, concluding that if Matynska had undertaken adequate investigation and preparation, she would have discovered Dr. Feierstein's involvement before the expiration of the statute of limitations or within reasonable time to comply with fictitious-party practice.
The Supreme Court granted certification.
HELD: Helena Matynska's motion to amend her complaint to name Dr. Feierstein as a defendant pursuant to the fictitious-name rule was properly denied. Her efforts to discover the role of all parties complicit in her injurious post-operative care were wholly inadequate, specifically in relation to Dr. Feierstein.
1. Dr. Feierstein's name appears twice in the hospital record as a physician participating in Matynska's care. She had an obligation to investigate all potentially responsible parties in a timely manner but failed to do so. Because Matynska failed to cross the due diligence threshold, the lower courts properly denied her the right to amend her complaint. (Pp. 2-3)
2. The Court notes its disapproval of the tactics of Dr. Fried and his attorney. Dr. Fried's answers to interrogatories and responses to deposition questioning were obfuscatory and arguably calculated to mislead Matynska regarding Dr. Feierstein's connection to the case, thus paving the way for an "empty chair" defense. In his interrogatory answers, Dr. Fried failed to identify members of his group or acknowledge that Dr. Feierstein covered him on the dates in question. (P. 4)
3. While the Court abhors the kind of tactics used by the defense, Matynska failed in her primary obligation to diligently and timely investigate the identity of those responsible for her negligent care and treatment. Thus, the defense's tactics are immaterial to its disposition. Nevertheless, the Court cautions attorneys to avoid such conduct or risk potential consequences. (P. 4)
Judgment of the Appellate Division is AFFIRMED.
CHIEF JUSTICE PORITZ and JUSTICES, COLEMAN, LONG, VERNIERO, LaVECCHIA, ZAZZALI, and ALBIN join in this PER CURIAM opinion.
The opinion of the court was delivered by: Per Curiam
Argued September 23, 2002
Plaintiff, Helena Matynska suffered complications following hip replacement surgery, which she attributed to negligent post-operative medical treatment. She filed a complaint against Robert Wood Johnson University Hospital, eleven doctors and nurses, and "John Doe, M.D. and Jane Doe, R.N." Not named as a defendant was Dr. Mark Feierstein, who for nearly three days after her ...