July 18, 2007
CAROL CAVENAUGH AND TIMOTHY CAVENAUGH,*FN1 PLAINTIFFS-APPELLANTS,
MARGERY H. MARK, M.D., DEFENDANT-RESPONDENT.
On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-5484-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 back each time that I saw her.
9. My business card clearly identifies my status as a UMDNJ employee, and clearly identifies the University of Medicine & Dentistry's affiliation with Robert Wood Johnson Medical School. (See Exhibit A).
10. Additionally, there are signs posted at the entrance and inside of the building that identifies the building as the University of Medicine & Dentistry/Robert Wood Johnson Medical School Clinical Academic building. (See copies of photographs of Clinical Academic Building attached hereto as Exhibit B).
11. In order to enter and exit the building for her appointments, Ms. Cavanaugh must pass the above mentioned signs.
But Dr. Mark never certified she told plaintiff, either orally or in writing, she was employed by UMDNJ, and, in a responding certification, plaintiff stated Dr. Mark never indicated she was a UMDNJ employee:
2. I recall seeing Dr. Mark in the building depicted in the top two photographs in UMDNJ's opposition papers, designated as 125 Paterson Street. I was not aware of nor did I see her at her 97 Paterson Street office. My husband would drop me off at the building entrance before each appointment and pick me up at the entrance after each appointment. I do not recall if the signs depicted in the photographs were there. Even if they were, I did not know what "UMD[,"] University of Medicine & Dentistry of New Jersey, or University Medical Group were. I always thought that this building was part of Robert Wood Johnson University Hospital only. No one told me otherwise.
3. I was in terrible condition each time I entered and left this building. I went to Dr. Mark only when I was in terrible pain. Before each appointment, already in a lot of pain, I entered the building, went up the elevator to the sixth floor, and entered the suite identified as "Neurology[."] During sessions with Dr. Mark, I received approximately 50 Botox injections in my shoulder, base of my skull, back of my neck, and base of my neck. By the time each session was finished, I was in excruciating pain. By the time I reached the lobby of the building, I was crying as I waited for my husband to bring the car to the entrance so that I could go home and rest. Each visit to Dr. Mark was mentally and physically exhausting and traumatic.
4. Dr. Mark stood behind me while administering the Botox injections. I do not recall if her lab coat had a UMDNJ insignia. I normally wear bifocal glasses for I am far-sighted. As soon as I went into Dr. Mark's treatment room, I would immediately take off my glasses so that they would not interfere with the examination and Botox treatments. I did not wear my glasses while Dr. Mark examined and treated me.
5. When I called Dr. Mark's office, the phone was answered: "neurology[."]
6. Dr. Mark never told me that she was a UMDNJ employee. Dr. Mark never told me that Robert Wood Johnson Hospital was affiliated with UMDNJ. Dr. Mark never mentioned UMDNJ. Dr. Mark never told me that she was a state employee. Dr. Mark never told me that she was a professor. Dr. Mark never told me to carefully read signs or appointment cards. During my appointments with Dr. Mark, conversations were centered around her personal activities and interests.
Based on our review of the record, however, the business card and photographs of the signs Dr. Mark produced for the court did not unequivocally indicate Dr. Mark was a public employee of UMDNJ.
During oral argument before the trial court, defendant's attorney stated "[t]his is a case that demonstrate[s] nothing but inexcusable neglect . . . on plaintiff's part." But plaintiff's attorney argued "people listen to what their doctors say," and plaintiff's "doctor never said I'm a public employee, I work for the State." The trial court found plaintiff's claim accrued "as late as August of 2004" and, therefore, her notice of claim should have been filed sometime in November 2004:
Now, giving the benefit of the doubt to the plaintiff as late as August of 2004, it would appear that at that point in time there was all indication that Dr. Mark was a public employee, that Robert Wood Johnson was her employer, and that as a result the plaintiff could have and should have filed the tort claim notice 90 days from that point. That would mean that the claim should have been filed some time in November .
Although the trial court mistakenly found defendant was employed by RWJUH, the court correctly recognized, N.J.S.A. 59:8-9 authorizes the court to allow a claim to be filed "at any time within one year" after the accrual of the claim if there are "extraordinary circumstances" for the delay, and the public employee or entity will not be prejudiced by such late filing. Nevertheless, the court concluded plaintiff failed to establish extraordinary circumstances for late filing:
[T]he [c]court finds it hard to believe that Mrs. Cavenaugh had no knowledge that . . . Dr. Mark was . . . an employee of Robert Wood Johnson, after having seen this doctor several times a year for several years, the argument that the building is not quite indicative of Robert Wood Johnson or the University of Medicine & Dentistry . . . is not acceptable to the [c]court. The fact that the doctor didn't wear a badge is not acceptable to the [c]court either. I find it hard to believe that there was never an occasion where after seven years when Mrs. Cavenaugh called her doctor . . . I only assume that she had to call this doctor, . . . at least one time in seven years, that the telephone number that . . . she used . . . [was] not answer[ed] with the appropriate indication that she was calling Robert Wood Johnson Hospital or the University of Medicine & Dentistry at Robert Wood Johnson. Again, I lump all those excuses that Mrs. Cavenaugh can't recall the doctor telling her she was a State employee. I don't see where the circumstances . . . would rise where the doctor would have to tell her that she was a State employee. I don't believe that most doctors . . . give [patients] their pedigree as it concerns their employment status . . . on treating, unless they are asked. And I'm sure . . . Mrs. Cavenaugh didn't ask Dr. Mark are you a State employee or not, she had no reason to.
. . . [T]here was plenty of time or plenty of occasions when Mrs. Cavenaugh knew what . . . the employment status of . . . Dr. Mark was, that she was, in fact, working for Robert Wood Johnson or the University of Medicine & Dentistry, both of which names are used interchangeably and they are the same entity. Again, nothing in the papers would suggest . . . sufficient extraordinary circumstances were evident during the period of time in question, that this court could hang its hat on, and allow the notice of late claim to be filed. Again, to the contrary, everything would indicate that there was plenty of evidence to show that Dr. Mark was a State employee.
We note there is absolutely nothing in the record to support the trial court's finding that Robert Wood Johnson University Hospital and the University of Medicine and Dentistry of New Jersey "are the same entity." They are not. It is undisputed that Dr. Mark was employed as an Associate Professor by UMDNJ, "a public entity entitled to the protection of the Tort Claims Act." Lowe v. Zarghami, 158 N.J. 606, 612 (1999). RWJUH, on the other hand, is a private hospital. Although it is a private facility, "RWJUH is a teaching hospital for UMDNJ." Eagan v. Boyarsky, 158 N.J. 632, 635 (1999). Moreover, in Lowe, the Court stated "UMDNJ must require clinical professors employed by them to advise their patients, both orally and in writing, that they are employees of UMDNJ." Lowe, supra, 158 N.J. at 631.
While we recognize a decision to grant or deny an application to file a late notice claim is discretionary, we are convinced the trial court misapplied its discretion because it misconstrued the facts and the applicable law. On the limited record before us, which does not specify when plaintiff became aware of Dr. Mark's public employee status or the dates her attorney attempted to secure experts, we cannot agree plaintiff failed to demonstrate extraordinary circumstances for late filing. Likewise, we see no reason for rejecting plaintiff's certified statement that she "never knew," until her attorney told her, "that Dr. Mark was employed by the University of Medicine and Dentistry of New Jersey." Additionally, when plaintiff began seeing another doctor, she promptly retained legal counsel to investigate whether she had a valid medical malpractice claim, and her attorney has repeatedly attempted to secure a qualified expert. See, e.g., id. at 629 ("The notice provisions of the Tort Claims Act were not intended as 'a trap for the unwary.'" (quoting Murray v. Brown, 259 N.J. Super. 360, 365 (Law Div. 1991)). Thus, the orders under review are reversed, and the case is remanded for further proceedings consistent with this opinion.
Reversed and remanded.