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Maher v. County of Mercer

March 27, 2006


On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-2709-04.

Per curiam.



Argued October 25, 2005

Before Judges Kestin,*fn1 Hoens and R. B. Coleman.

The opinion of the court was delivered by HOENS, J.A.D.

Plaintiff Mary Maher appeals from the November 19, 2004 order of the Law Division denying her motion for a declaration that her Tort Claims Act notice was timely filed or, in the alternative, granting her leave to file a late Tort Claims Act notice. We reverse and remand.

The following facts, which we have derived from the record, are relevant to the issues raised on appeal. From August 2002 until November 2003, plaintiff was employed by defendant Aramark as a cook. Throughout that time, she worked at the Mercer County Corrections Center. In July or August 2003, plaintiff began to experience breathing difficulties. Her personal physician, Dr. Schmidt, diagnosed her as suffering from asthma. Her condition continued to deteriorate and she became "increasingly weak, dehydrated and short of breath."

On November 1, 2003, plaintiff collapsed and was taken to the Hunterdon Medical Center, where she was admitted and remained for treatment until her release on November 28, 2003. According to the discharge note, when she was admitted, it was believed that she was suffering from "bilateral pneumonia and acute respiratory failure, dehydration, diabetes, [and] acid reflux."

The discharge note also reveals that during that hospitalization, plaintiff developed septic shock and that cultures revealed that she had "Methicillin resistant staph aureus pneumonia and bacteremia." Plaintiff was hospitalized for further treatment from December 13, 2003 until January 1, 2004, from January 30, 2004 until February 6, 2004 and in April 2004. Plaintiff asserts, and there is no contrary evidence in the record, that she suffers from severe memory deficits, has little recollection of her hospitalizations and continues to experience significant effects from her illness the specifics of which do not bear upon our analysis.

Plaintiff had retained her attorney in 2001 to represent her in unrelated litigation. That matter was proceeding through discovery when plaintiff began to be ill. Counsel first became aware that plaintiff was ill in November 2003 while she was in the hospital. At that time, plaintiff's daughter telephoned him to explain that plaintiff's condition was so severe that she might not survive. In the course of that conversation, when counsel asked about the cause of plaintiff's illness, her daughter told him that it was not known.

According to counsel for plaintiff, the question about the cause of her illness first arose during the course of one of plaintiff's hospitalizations. Although it is not clear precisely when it happened, at some point while plaintiff was in the hospital, her treating doctor commented to her daughter that he had noticed a burn on plaintiff's forearm when she was first admitted. He thought that the burn might have been "the source" of the staph infection. On May 14, 2004, Dr. David Cohn, the pulmonary specialist who had been principally in charge of plaintiff's hospital care, wrote a letter in which he described the staph infection as "community-acquired." He also referred to the burn she had on her forearm when she was admitted. He described it as a burn she had gotten at the Corrections Center and opined that it "may have been the source of the Staph aureus infection."

Approximately a week after counsel*fn2 learned of the doctor's opinion, he was admitted to a hospital with a diagnosis of cancer. The attorney underwent surgery and follow-up treatment thereafter until he was released by his physician to return to work on August 1, 2004. Within ten days of his return to his practice, he filed the Tort Claims Act notice with Mercer County. When the County rejected that notice as untimely, plaintiff's counsel filed his motion seeking an order deeming the notice to be timely or seeking leave to file it out of time. The judge denied the motion, concluding that because the burn was known to plaintiff during the summer of 2003, the notice was untimely and the time for seeking an extension had also expired.

We need only briefly set forth the relevant aspects of the Tort Claims Act, N.J.S.A. 59:1-1 to :12-3. Central to our consideration of the issues raised on appeal are the provisions included in the Act respecting notice. Although the mechanics of filing a claim under the Act are not germane to the issues on appeal, all claims brought pursuant to the Act shall be set forth in a ...

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