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Cavenaugh v. Mark

July 18, 2007

CAROL CAVENAUGH AND TIMOTHY CAVENAUGH,*FN1 PLAINTIFFS-APPELLANTS,
v.
MARGERY H. MARK, M.D., DEFENDANT-RESPONDENT.



On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-5484-05.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued November 28, 2006

Before Judges Kestin, Graves and Lihotz.

Plaintiff Carol Cavenaugh appeals from an order entered on September 30, 2005, denying her motion to file a late notice of tort claim, and an order dated March 3, 2006, denying her motion to file and stay her complaint to avoid a potential statute of limitations defense. After reviewing the record and applicable law in light of the contentions advanced on appeal, we reverse.

For more than six years, defendant Margery H. Mark, M.D., a neurologist employed by the University of Medicine and Dentistry of New Jersey (UMDNJ), treated plaintiff for dystonia.*fn2 During the course of treatment, defendant did not advise plaintiff, either orally or in writing, that she was a public employee of UMDNJ. In the Spring of 2004, plaintiff saw another neurologist, who told her she did not have dystonia, and he prescribed medication that alleviated plaintiff's pain.

On April 23, 2004, plaintiff retained Michael A. Spero, an attorney, to determine whether she had a viable medical malpractice case against Dr. Mark. On June 9, 2004, Spero wrote to Dr. Mark at 97 Paterson Street, New Brunswick, which was the address listed for her on the Robert Woods Johnson University Hospital (RWJUH) website, and he requested a copy of plaintiff's medical records. Plaintiff's records were received by Spero sometime in August. The cover letter, dated July 30, 2004, was written on UMDNJ letterhead. According to Spero, he sent a notice of tort claim to Dr. Mark and UMDNJ on June 9, 2005:

As a precautionary measure, on or about June 9, 2005[,] I sent a Notice of Tort Claim to Dr. Mark and to UMDNJ and RWJUH's risk and claim managers. I have been advised by RWJUH that it is a private notfor-profit hospital. By letter dated June 16, 2005, UMDNJ advised that my June 9 Notice of Tort Claim was untimely under the Tort Claims Act.

The June 9, 2005, notice of tort claim sent to Dr. Mark stated it was being presented pursuant to the Tort Claims Act, N.J.S.A. 59:1-1 to 12-3, and it described plaintiff's claim as follows: "Claimant believes that Dr. Mark treated her for approximately seven years based upon a misdiagnosis of dystonia while failing to treat her for the brachial plexus medical condition she did have." And the notice specified that plaintiff's claims arose "from the treatment and care provided . . . by Dr. Margery H. Mark, from on or about June 16, 1997[,] until approximately February 17, 2004." The written response from UMDNJ on June 16, 2005, advised plaintiff's notice of tort claim was untimely because "more than 90 days have passed from the accrual of the claim." Thereafter, on July 28, 2005, pursuant to N.J.S.A. 59:8-9, plaintiff applied to the court for permission to file a late notice of claim.

In a certification in support of plaintiff's motion, Spero explained how he attempted to locate and engage an expert to demonstrate "that Dr. Mark misdiagnosed and mistreated" plaintiff. According to Spero, four potential experts "declined to become involved," but he was "in the process of attempting to locate another expert to review the case." In addition, plaintiff submitted two certifications in support of her motion to file a late claim. In her initial certification, dated July 25, 2005, plaintiff certified:

I never knew, until our attorney Mr. Spero told me, that Dr. Mark was employed by the University of Medicine and Dentistry of New Jersey ("UMDNJ"). Prior to that time, I did not even know what UMDNJ was. I always saw Dr. Mark in her office at RWJUH. Dr. Mark never told me that she was a public employee or that she worked for UMDNJ. I do not recall seeing a UMDNJ badge on Dr. Mark. I do not recall her office containing any UMDNJ identification. When I telephoned Dr. Mark's office, I do not recall the staff answering the call with UMDNJ identification.

In reply to this certification, Dr. Mark acknowledged she is "employed by the University of Medicine & Dentistry for the State of New Jersey as an Associate Professor of Neurology at the University of Medicine & Dentistry of New Jersey/Robert Wood Johnson Medical School." Defendant's academic office is located at "the University of Medicine and Dentistry of New Jersey/Robert Wood Johnson Medical School Professional Center, 97 Paterson Street, New Brunswick, New Jersey," however, she sees patients "exclusively in the Department of Neurology, on the 6th floor, Suite 6100, of the Clinical Academic Building located at 125 Paterson Street in New Brunswick." According to Dr. Mark, all correspondence from her office, "including business cards, directions, appointment confirmations, and bills have UMDNJ letterhead," and she certified:

7. Furthermore, it is my office's policy to give a business card to my patients with their next appointment date written on the back at the conclusion of each treatment. (See copy of business card attached hereto as Exhibit A).

8. Carol Cavanaugh was given one of my business cards with her next appointment date written on the ...


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