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Kelly v. Solaris Health Systems

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 BY THE TORT CLAIMS ACT BASED ON THEIR OWN CONDUCT.

POINT IV

THE TRIAL JUDGE ERRED IN GRANTING DEFENDANT ATUL PATEL, M.D.'S MOTION TO DISMISS PLAINTIFF'S COMPLAINT BECAUSE PLAINTIFF HAS SUBSTANTIALLY COMPLIED WITH THE NOTICE OF CLAIM.

The initial question to be addressed is when plaintiff knew or should have known of Dr. Patel's status as a State employee. Plaintiff's complaint alleged that Dr. Patel was engaged in the practice of medicine "either independently or as an agent, servant, or employee of defendant JFK Medical Center and/or XYZ Corporations. . . ." In fact, Dr. Patel became employed by the University of Medicine and Dentistry of New Jersey (UMDNJ) in June 2000 and, as part of his employment, supervised residents at the JFK Clinic. UMDNJ is, of course, a State entity.

In his answer to the complaint, Patel stated, in part:

5. Defendant Atul Patel, M.D. admits that he was engaged in the practice of medicine at JFK Medical Center in 2000 and 2001 and that he held himself out as competent, skilled and qualified to do so. Defendant Atul Patel, M.D. denies that he was an agent, servant, or employee of JFK Medical Center and adds that at all times relevant to this matter he was a public employee of the State of New Jersey.

In addition, as his Second Separate Defense, Patel raised plaintiff's failure to comply with the TCA and set forth a "Demand For Copy of Notice of Tort Claim," as well as "proof of service of same." Plaintiff took no action in response to that pleading.

On September 8, 2004, nearly a year after filing his answer, Patel responded to form medical malpractice interrogatories. In answering a question seeking information concerning insurance coverage, Patel responded as follows:

Dr. Patel is an employee/consultant of the University of Medicine and Dentistry of New Jersey, and as such is provided professional liability coverage via a self-insurance program governed by the terms and provisions of the State of New Jersey Tort Claims Act.

In addition, Patel's resume, attached to his answers, stated that he had been employed at UMDNJ from "June 1, 2000 -Present." Plaintiff took no action at that time.

Nevertheless, plaintiff claimed, in response to defendant's motion to dismiss, that the ninety-day period for filing a Notice of Claim did not begin until she discovered that Patel was employed by the UMDNJ, and that she did not learn that fact until Patel's deposition on March 30, 2005. Plaintiff filed a Notice of Claim on June 13, 2005, approximately seventy four days after the Patel deposition. Plaintiff did not file a motion to file a late Notice of Claim until defendant moved to dismiss, over two months later.

There is no doubt that the harsh consequences following a failure to timely file a Notice of Claim are ameliorated by the discovery rule, which tolls the date from which to measure the statutory ninety-day period until the necessary information as to state involvement is known or reasonably should be known. Beauchamp v. Amedio, 164 N.J. 111, 117 (2000). Here, plaintiff claims that the triggering date for purposes of the ninety-day notice period is the date of Patel's deposition. Plaintiff contends that Patel's answers to interrogatories provided only "a vague reference" to his employment by UMDNJ because his responses only related to the date on which the answers were provided, not the date or dates on which he treated plaintiff. We disagree.

Patel's answer, in which he clearly asserted his employment, invoked the TCA as a defense, and demanded a copy of the Notice of Claim, should have alerted plaintiff to defendant's status as a State employee. Even if there is a doubt as to this conclusion, defendant's answers to interrogatories, when taken in conjunction with the Answer, surely confirmed his status. We find plaintiff's reading of the interrogatory answers to be strained and unpersuasive. As we see it, the date from which to calculate the ninety-day notice period was, at the very latest, when the interrogatory answers were received. By that yardstick, plaintiff's filing was far out of time.

Nevertheless, plaintiff argues that extraordinary circumstances existed to justify her late filing. Specifically, she relies on Lowe v. Zarghami, 158 N.J. 606 (1999). Lowe also involved the applicability of the TCA and its notice requirement to a doctor employed by UMDNJ who treated the plaintiff at a UMDNJ affiliated private hospital. Id. at 610-13. There, as here, plaintiff failed to file a notice within ninety days from the accrual of her cause of action. Plaintiff moved to file a late Notice of Claim, asserting extraordinary circumstances, which was denied. Id. at 613-14. Thereafter, the defendant's motion for summary judgment was granted. In reversing the dismissal, we concluded that Zarghami was not, under the circumstances, a State employee subject to the TCA, but rather an independent contractor. Id. at 614.

The Supreme Court, however, concluded that Zarghami was an employee of UMDNJ. Id. at 616-24. As a result, the Court went on to consider whether plaintiff had demonstrated extraordinary circumstances justifying late notice. The Court noted that Lowe's complaint had been filed on February 8, 1996, and served on March 4, 1996. Zarghami moved to dismiss on April 19, 1996, and Lowe moved to file her late notice on July 19, 1996. Reviewing the record in light of this chronology, the Court found "no evidence supporting the conclusion that Lowe knew Dr. Zarghami was a UMDNJ employee," id. at 629-30, and "[e]ven assuming that Lowe knew Dr. Zarghami was a UMDNJ professor, she easily could have believed he was not acting as a public employee when practicing at [the private hospital]." Id. at 630. The "unanticipated revelation," ibid., that Zarghami was a public employee qualified as an extraordinary circumstance. The Court also noted that a late notice would not prejudice Zarghami or UMDNJ. Id. at 631.

Nevertheless, as a prospective remedy to avoid situations involving UMDNJ doctors practicing at private hospitals, the Court stated:

To resolve patients' doubts surrounding the employment status of their physicians, UMDNJ must require clinical professors employed by them to advise their patients, both orally and in writing, that they are employees of UMDNJ. Such notice should be given to a patient as soon as practicable. [Ibid.]

The situation here is quite different than that presented in Lowe. In Lowe, the plaintiff did not know of the doctor's public employment status when she filed suit and the doctor's motion to dismiss apparently provided the first knowledge of that fact. Here, on the other hand, while plaintiff also arguably did not know Patel's status when she instituted suit, the case progressed much further and, as we have noted, such notice was provided by Patel's answers to interrogatories, if not by his answer to the complaint. Unless the Court's ruling, quoted above, creates a special form of tolling for claims against UMDNJ physicians, plaintiff's imputed knowledge and her failure to act preclude a finding of extraordinary circumstances.

We agree that Patel did not comply with the mandate for UMDNJ doctors established in Lowe. While he claims that he might have orally informed plaintiff of his status, Lowe requires a notice "both orally and in writing." There is no evidence of a writing here. The question, then, is whether failure to abide by the Lowe strictures excuses the TCA notice requirement entirely or merely tolls it until such time as plaintiff becomes actually aware of the doctor's status. We believe that if the Court meant to eliminate entirely the necessity for a Notice of Claim when there was non-compliance, it would have said so. It did not. If the Court meant that result, it is not readily discernible and we decline to "read between the lines." If we are wrong, it should be for the Court to say so.

We conclude that once plaintiff had actual or imputed knowledge, she should have filed a Notice of Claim and, if necessary, a motion for leave to file a late notice. She did neither. As a result, unless other circumstances excuse her failure, the complaint was properly dismissed.

Plaintiff asserts, however, that defendant is estopped from invoking the TCA. Obviously, Patel knew he was a State employee and apparently knew that neither he, nor UMDNJ, had been served with a Notice of Claim. However, apparently to be safe, he demanded a copy of any such notice as a part of his Answer. Not having received one, defendant neither moved to compel compliance with his demand nor moved to dismiss. Indeed, defendant never moved to dismiss until August 23, 2005, nearly two years after his answer was filed and nearly a year after he had served his answers to interrogatories.

It is settled that estoppel principles are applicable to the TCA notice requirement. Hill v. Middletown Bd. of Educ., 183 N.J. Super. 36 (App. Div.), certif. denied, 91 N.J. 233 (1982). As defendant correctly observes, Hill is distinguishable from the present case since, there, the physician-defendant failed to plead non-compliance with the notice requirements as an affirmative defense. Such was not the case here. See also Pilonero v. Twp. of Old Bridge, 236 N.J. Super. 529 (App. Div. 1989). However, here, as in Hill, defendant waited an extraordinary length of time to file his motion to dismiss. Hill, supra, 183 N.J. Super. at 41. In that period, the plaintiff in Hill submitted to extensive discovery by defendant, including interrogatories, depositions and a physical examination, creating "the objective impression that [defendant] was waiving the notice requirements, especially in view of its failure to properly plead this defense." Ibid.

We conclude that the present record provides an inadequate basis upon which to resolve plaintiff's estoppel claim. Perhaps because the issue was not raised before the motion court, the judge understandably never addressed it in her decision. Given the serious nature of the suit, we believe it would be best to remand the matter to the trial court for a determination on whether, under the circumstances, defendant is estopped from raising the lack of notice by virtue of his delay in moving to dismiss. In making that determination, the court will consider whether plaintiff was prejudiced by any such delay.

Affirmed in part, remanded in part for further proceedings. We do not retain jurisdiction.

20070529

© 1992-2007 VersusLaw Inc.



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