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Kelly v. Solaris Health Systems

May 29, 2007

TINA KELLY, EXECUTRIX AND PROPOSED ADMINISTRATRIX AD PROSEQUENDUM OF THE ESTATE OF DENISE CRIANZA, PLAINTIFF-APPELLANT,
v.
SOLARIS HEALTH SYSTEMS T/A JOHN F. KENNEDY MEDICAL CENTER, DANIEL ADDIS, D.O., RICHARD D. KILKER, M.D., LEROY PHILLIPS, M.D., AND ROBIN O. WINTER, M.D., DEFENDANTS, AND ATUL PATEL, M.D., DEFENDANT-RESPONDENT.



On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-4041-03.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued March 27, 2007

Before Judges Kestin, Weissbard and Payne.

Plaintiff, Tina Kelly, Executrix and Proposed Administratrix ad prosequendum of the Estate of Denise Crianza, appeals from the dismissal of her medical malpractice suit against defendant, Atul Patel, M.D., on the basis of plaintiff's failure to file a timely Notice of Claim against defendant, a State employee. For convenience, we will refer to the decedent, Denise Crianza, as plaintiff.

We need not set out all of the facts relating to the care and treatment of plaintiff or the specific allegations of malpractice against the defendants who practiced at the Family Practice Ob-Gyn Clinic of the John F. Kennedy Medical Center. It suffices to note that plaintiff's claim against Dr. Patel related to an alleged delay in diagnosis of her cervical cancer, which contributed to her death on June 19, 2005.

Plaintiff filed suit on May 30, 2003. Dr. Patel filed his answer on October 3, 2003. On August 23, 2005, following discovery, Dr. Patel moved to dismiss the complaint (actually the second amended complaint) on the ground that plaintiff had never filed a Notice of Claim against him as required by the Tort Claims Act (TCA), N.J.S.A. 59:8-8. In response, on September 1, 2005, plaintiff cross-moved to file a late Notice of Claim. N.J.S.A. 59:8-9. Defendant's motion was granted on September 9, 2005, prior to the return date of the cross-motion. Plaintiff's claims against all remaining defendants were settled on February 17, 2006, and a Stipulation of Dismissal was filed on June 6, 2006, concluding the case and rendering the dismissal order against Dr. Patel final.

On appeal, plaintiff presents the following issues:

POINT I

THE TRIAL JUDGE ERRED IN GRANTING DEFENDANT ATUL PATEL, M.D.'S MOTION TO DISMISS PLAINTIFF'S COMPLAINT BECAUSE PLAINTIFF SERVED HER NOTICE OF CLAIM WITHIN 90 DAYS AFTER HER DISCOVERY THAT ATUL PATEL, M.D., MAY HAVE BEEN EMPLOYED BY UNIVERSITY OF MEDICINE AND DENTISTRY OF NEW JERSEY AT THE TIME OF THE ALLEGED MEDICAL MALPRACTICE.

POINT II

THE TRIAL JUDGE ERRED IN GRANTING DEFENDANT ATUL PATEL, M.D.'S MOTION TO DISMISS PLAINTIFF'S COMPLAINT BECAUSE PLAINTIFF HAS DEMONSTRATED EXTRAORDINARY CIRCUMSTANCES TO PERMIT A LATE FILING OF CLAIM PURSUANT TO LOWE V. ZARGHAMI, 158 N.J. 606 (1999).

POINT III

THE TRIAL JUDGE ERRED IN GRANTING DEFENDANT ATUL PATEL, M.D.'S MOTION TO DISMISS PLAINTIFF'S COMPLAINT BECAUSE DEFENDANTS ARE ESTOPPED FROM ASSERTING THAT PLAINTIFF'S CLAIMS ARE BARRED ...


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