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Overstreet v. Anderson

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


April 23, 2010

ALMA OVERSTREET, PLAINTIFF-APPELLANT,
v.
GINA ANDERSON, M.D., THEODORE BARRETT, M.D., KEVIN CLARK, M.D., MARK GRANICK, M.D., ELAINE MOORES, M.D., ANTHONY CAGGIANO, M.D., M. LEITAO, M.D., "JOHN" HINNES, M.D., "JOHN" WHITE, M.D., "JOHN" PATEL, M.D., (SAID FIRST NAMES BEING FICITITIOUS), AND UMDNJ, DEFENDANTS-RESPONDENTS, AND STATE OF NEW JERSEY, DEFENDANT.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-4235-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued April 12, 2010

Before Judges Baxter, Alvarez and Coburn.

Plaintiff Alma Overstreet appeals from Law Division orders denying her motion to file a late Tort Claims Act (the Act) notice. We reject plaintiff's contention that the trial judge erred when she concluded that plaintiff knew, or should have known, that the physicians who treated her at defendant University of Medicine & Dentistry of New Jersey (UMDNJ) were State employees. We do, however, agree with plaintiff's argument that the judge erred when she rejected plaintiff's claim that she was so overwhelmed by her cancer diagnosis, so consumed by the fear of dying and so preoccupied by the radiation, chemotherapy and mastectomy that she was unable to file the notice within the ninety-day period required by the Act. We reverse.

I.

In approximately May 2006, plaintiff consulted the gynecology department at UMDNJ complaining of a breast lump and a severe skin condition in her vaginal area.*fn1 The skin condition resulted in vaginal surgery in August 2006. To evaluate the breast lump, two mammograms were ordered, which reportedly revealed only a fluid-filled cyst on plaintiff's left breast. No other care was provided. In light of the persistence of the breast lump, plaintiff scheduled another mammogram, which was performed in November 2007. Unlike 2006, this time a needle biopsy was ordered. The November 2007 biopsy revealed plaintiff had advanced stage breast cancer.

Plaintiff immediately left UMDNJ and spent the next few weeks searching for a new gynecologist, as she had lost faith in the UMDNJ physicians who had been treating her. Her new physicians started her on an aggressive course of life-saving treatment, including radiation, chemotherapy and a radical mastectomy. On May 12, 2008, right after plaintiff underwent the mastectomy, she consulted with the law firm that currently represents her. Her attorneys advised her of the immediate need to move for leave to file a late Tort Claims Act notice on the grounds of extraordinary circumstances. Such motion was filed nine days later on May 21, 2008.

In support of her motion, plaintiff asserted that not until she was satisfied her medical care "was back on track," did she seek out an attorney. According to her attorney's affidavit, when plaintiff came to his office on May 12, 2008, "she was not aware," until her attorneys so advised her, "that she had been treating with State employees."

Plaintiff's brief asserted that she was "physically debilitated by both the [skin condition] and the breast cancer diagnosis" and "to try to save her life, [had] focused all her energies on trying to get through her medical treatments and get her health back." She maintained that she "therefore did not consult with an attorney until May 12, 2008, after she changed treating physicians and hospital facilities, underwent chemotherapy, a mastectomy and commenced yet another course of chemotherapy."

Plaintiff's May 10, 2008 affidavit echoed the same theme, that she was so devastated by the delayed diagnosis of breast cancer and so preoccupied with obtaining the treatment and the physicians necessary to save her life that she had delayed seeing an attorney until her medical treatment was nearing its end. She wrote:

In addition to being debilitated by hidradenitis suppurativa, as well as my recent diagnosis of breast cancer, my main focus was in finding doctors and obtaining treatment to stay alive. Until I was satisfied that I had found appropriate physicians and was receiving appropriate treatment, that remained my main focus.

Plaintiff also asserted in her affidavit that her physicians never advised her they were state employees and that she "received nothing in writing" so alerting her. For that reason, and because of her extreme and dire medical circumstances, she asserted that she satisfied the "extraordinary circumstances" requirement of N.J.S.A. 59:8-9 and should be permitted to file a late notice of claim under the Act.

Defendants' opposition to plaintiff's motion for leave to file a late notice of claim vigorously disputed plaintiff's assertion that she did not know defendants were public employees. They pointed to the four consent forms plaintiff signed in connection with the vaginal surgery. The consent forms contained a provision stating "I understand that this hospital is part of the State of New Jersey University of Medicine & Dentistry of New Jersey, the State's University of Health Sciences." Defendants' opposition to plaintiff's motion did not address her claim that she was so devastated by the cancer diagnosis and treatment that she delayed seeking an attorney.

The judge set the matter down for a plenary hearing, which was conducted on August 26, 2008. At the hearing, plaintiff acknowledged that on August 21, 2006, she had signed a surgical consent form, which stated in paragraph five: "I have been advised that the attending physicians/doctors who participate in my care and treatment at this hospital are employed by the State of New Jersey University of Medicine & Dentistry, U.M.D.N.J., with few exceptions. These physicians/doctors also wear name tags that identify their association with the State of New Jersey-UMDNJ." Plaintiff maintained that no doctor or nurse ever specifically pointed out to her the provisions of paragraph five, nor had any doctor or nurse advised her that they were employed by the State of New Jersey.

Plaintiff also testified that she did not read paragraph five before she signed the consent form, and asserted that if she had refused to sign that document, the doctors would not have performed the vaginal surgery. Plaintiff conceded signing additional consent forms at UMDNJ in 2006 that contained the same language.

Plaintiff also testified that when the November 2007 biopsy revealed breast cancer, she no longer trusted the UMDNJ physicians and she came under the care of an oncologist, who then referred her to a surgical group. She underwent a seven- month course of chemotherapy that began in January 2008. When her attorney asked her to describe the side effects of that chemotherapy, defense counsel objected, asserting "I don't know the relevance of this. We're starting to get beyond the purpose of what the hearing is." At that point, the following colloquy occurred:

THE COURT: I don't know. Is she going to testify that she was so completely incapacitated that she couldn't function?

[PLAINTIFF'S ATTORNEY]: She's not, but she is going to testify that she was focused on her care and treatment as opposed to --

THE COURT: Yeah, but is that relevant to the issue before the court?

[PLAINTIFF'S ATTORNEY]: If Your Honor doesn't think it is then --

THE COURT: I don't think it is.

[PLAINTIFF'S ATTORNEY]: -- apparently it's not. Okay.

After this colloquy ended, plaintiff's direct testimony resumed with her statement that she underwent a mastectomy in March 2008, at which point her physicians advised her that her "cancer was under control." She explained that after the March 2008 mastectomy, she underwent additional chemotherapy and radiation. At that point, defense counsel again objected on the grounds of relevance. The judge ruled:

I'll allow it. If I ultimately determine it's not relevant to the issues before the court, I won't consider it....

After the judge overruled the objection, plaintiff testified that she eventually completed her treatment in July 2008. She maintained that prior to her first consultation with her present counsel on May 12, 2008, she had no knowledge of "the possibility that some of [her] doctors or nurses might be employed by the State of New Jersey." When asked why she had not consulted an attorney earlier, she answered "I wasn't thinking about that. I wasn't thinking about money, I was thinking about myself. Thinking about saving my life."

Defendant Theodore Barrett, M.D., who was one of plaintiff's treating physicians, testified that each of the consent forms plaintiff signed specified that her treatment was being rendered at UMDNJ, which the consent forms described as a state-operated hospital. He also displayed his identification badge, which bears the words "University of Medicine & Dentistry of New Jersey." Barrett testified that a physician cannot enter the floors of the UMDNJ hospital without presenting the badge, and if the badge is not visible, one of the security guards will stop the physician and demand to see the badge. He testified that other UMDNJ physicians who treated plaintiff would have worn the badge and a lab coat, which also displays the UMDNJ insignia.

The next day, the judge rendered an oral decision denying plaintiff's motion for leave to file a late notice of tort claim. The judge's opinion began with an observation that defendants were not asserting that they would be prejudiced were plaintiff to be granted permission to file a late notice of claim. Nonetheless, the judge concluded that plaintiff failed to establish the "extraordinary circumstances" required for a late filing. The judge held that a plaintiff's ignorance of the filing requirements under the Act is not sufficient to establish "extraordinary circumstances."

Next, the judge rejected plaintiff's contention that she was unaware her physicians were state employees. The judge pointed to the identification badges worn by the physicians and paragraph five of the consent forms, all of which made it clear that the physicians were affiliated with UMDNJ. In addition, paragraph five of the consent form specifically and explicitly notified plaintiff that UMDNJ was a state-operated hospital. The judge also found that "plaintiff does not allege she was under so much psychological pressure when she received [the consent forms] that she didn't... read them because she was too distressed from her... various [medical] procedures...." The judge held that plaintiff should be deemed to have read and understood the material contained in paragraph five of the consent form. For those reasons, the judge rejected plaintiff's contention that she was unaware that her physicians were state employees.

The judge then addressed plaintiff's claim that she was so preoccupied with her diagnosis and treatment that she waited until her medical situation was under control before consulting with an attorney. Relying on O'Neill v. City of Newark, 304 N.J. Super. 543, 553 (App. Div. 1997), the judge held that a plaintiff is obliged to seek legal advice as to his or her legal remedies and that a plaintiff's "'physical incapacitation and confinement to [her] home... cannot be said to have prevented [her] from contacting an attorney or otherwise acting to protect [her] rights.'" The judge held plaintiff failed to demonstrate that her physical incapacitation "was greater than that of the plaintiff O'Neill [or] that she was unable to contact an attorney in the months following her October [2007] diagnosis. There has been no testimony [in] regard to... psychological incapacitation, and accordingly the [c]court finds that the facts fall under O'Neill and that that alternative... claim of extraordinary circumstances has not been met." For those reasons, the judge concluded that plaintiff's diagnosis and treatment for cancer were not sufficient to satisfy the "extraordinary circumstances" requirement of N.J.S.A. 59:8-9, and denied plaintiff's motion to file a late notice of claim. The judge signed a confirming order on August 27, 2008.

On September 16, 2008, plaintiff filed a motion for reconsideration, which was supported by her own supplemental certification, as well as an expert report from Grigory S. Rasin, M.D., who conducted a psychiatric evaluation of plaintiff on September 16, 2008. Rasin reviewed all of plaintiff's medical records, beginning with her 2006 vulvectomy,*fn2 as well as her treatment records for breast cancer. He also conducted a lengthy psychiatric interview.

Rasin opined that the psychological problems plaintiff suffered as a result of her cancer diagnosis and treatment were exacerbated by the depression she was already experiencing from her August 2006 vulvectomy, "which symbolically could be considered a castration." According to Rasin, following the vulvectomy, plaintiff "developed severe depression with suicidal thoughts" and began drinking "excessively." Although plaintiff had subsequently resolved her drinking problem, her depression continued, and worsened, after she learned she had advanced breast cancer.

Rasin described the impact that the chemotherapy and radiation had on plaintiff. He listed repeated vomiting, weakness, depression and a "decrease[] [in] her ability to function cognitively as well as... tremendous and chronic fatigue."

Elaborating upon the cognitive changes that resulted from the chemotherapy, Rasin commented that plaintiff's concentration was "poor" during the clinical interview and her attention span "short," adding that at times her attention was "unsustainable." He explained that he was forced to frequently repeat his questions twice "in order to draw her attention." Rasin opined that plaintiff's answers were truthful, as she "appeared to be very open and honest" and "responded to [his] questions without hesitation, undue delay or consideration." He also noted that all of plaintiff's answers were in "complete accord with [the medical records he] reviewed prior to seeing her."

Rasin discussed the fact that plaintiff had continued to work while undergoing chemotherapy. He reported plaintiff's comment that "they just had pity on me. They just asked me to come to work" but "did not ask anything of me." Plaintiff reported to Rasin that, while at work, she "spent more time in [the bathroom] throwing up than anything."

Ultimately, Rasin concluded that the cancer diagnosis, the loss of her left breast and the unpleasant and protracted treatment plaintiff received had deepened the depression she was already experiencing as a result of the vulvectomy. In Rasin's opinion:

[The cancer diagnosis] increased the severity of her depression with renewed feeling suicidal [sic], severe cognitive impairment which affected her ability to process information, digest information, retain information as well as impaired all aspects of her intellectual and cognitive functioning. Her judgment and insight were impaired as well. Chemotherapy and radiation added to her general fatigue and feeling of exhaustion. Whatever lapse of judgment took place around that time is a function of her psychiatric condition.

As we have noted, plaintiff also supported her reconsideration motion with her supplemental affidavit of September 16, 2008. In that affidavit, she listed the side effects of chemotherapy, which she described as "debilitating every day." She asserted that she "was terrified [she] was going to die from the delay in the diagnosis and treatment of [her] condition." As to her employment, because she "did not want to lose [her] job, [she] dragged [her]self to work, although [she] did not work every day and... often spent hours in the bathroom at work, nauseous and too ill to sit at [her] desk." Her September 2008 affidavit closed with the comment that:

I was physically and mentally unable to conduct any personal affairs beyond going for treatment and trying to hold on to my job. I did not leave my home for any other reason during this time period. I could not have sought out an attorney any sooner than I did.

At the October 24, 2008 hearing on plaintiff's motion for reconsideration, the judge refused to consider plaintiff's supplemental affidavit or Rasin's expert report and declined to reconsider her August 27, 2008 order. The judge reasoned:

[The supplemental certification and Rasin's report] is information that was available to the plaintiff at the time of the original hearing. The point of the hearing was to give plaintiff an opportunity to amplify her certification which really didn't meet the [exceptional circumstances] requirements either. So isn't it a little bit unfair to wait until I rule, find out the reasons why I ruled as I did [a]nd now say "okay we want a do-over and now we want to bring in new evidence?"

....

The only thing that is relevant to this motion is whether the plaintiff made the required showing. And the court finds that she has not. The court finds that the plaintiff has presented no new facts that were not available to plaintiff at the time of the original hearing.

....

Accordingly, the court finds that reconsideration should be denied, and that the psychiatrist report should not be considered. The court ruled on August 27[, 2008] and [then] to have a do-over which really would be a third do-over since we originally had plaintiff's certification[,]

[a]nd coming back, sending her to a psychiatrist two and a half weeks after the court ruled, to come up with a report to reopen the issue, is not a proper basis for granting a reconsideration. So for these reasons, the motion for reconsideration is denied.

The judge signed a confirming order that same day. Plaintiff's complaint was dismissed against all defendants with prejudice on March 11, 2009, resulting in a final order.

On appeal, plaintiff maintains that she demonstrated extraordinary circumstances, and because defendants would suffer no prejudice from the late notice of claim and her motion was filed within one year of the accrual of her cause of action, the judge abused her discretion when she denied plaintiff permission to file the late notice.

Defendants argue: 1) the judge correctly determined that plaintiff knew, or should have known, that they were state employees; 2) the judge was correct when she ruled that plaintiff's cancer diagnosis and treatment did not constitute "extraordinary circumstances" entitling her to file a late notice of claim; 3) plaintiff was afforded ample opportunity during the August 26, 2008 plenary hearing to advance her argument of physical and emotional incapacitation, but did not do so; 4) the judge correctly determined that plaintiff should not be permitted, after the fact, to supplement the record in an effort to overcome the judge's already-stated reasons for denying the motion; and 5) plaintiff's new submissions were "obviously done to manufacture the factual basis necessary to support a motion for reconsideration once the plaintiff knew what the trial court's ruling was."

II.

No claim may be brought against a public entity or a public employee under the Tort Claims Act, N.J.S.A. 59:1-1 to 14-4, unless the claim is presented in accordance with the procedures set forth in the Act. N.J.S.A. 59:8-3. Another section of the Act, N.J.S.A. 59:8-8, specifies that a claimant shall be "forever barred from recovering against a public entity or public employee" unless such person provides the public entity or public employee with notice of such claim within ninety days of accrual, "except as otherwise provided in [N.J.S.A.] 59:8-9." In turn, N.J.S.A. 59:8-9 authorizes a judge to extend the time for the filing of a notice of claim for an additional nine months, provided the public entity or public employee has not been prejudiced and the plaintiff demonstrates "sufficient reasons constituting extraordinary circumstances" for the failure to file the notice of claim within the ninety days required by N.J.S.A. 59:8-8.

The "extraordinary circumstances" language contained in N.J.S.A. 59:8-9 was the result of a 1994 amendment that substituted "extraordinary circumstances" for the Act's prior "sufficient reasons" standard; and such change "'may have signaled the end to a rule of liberality.'" Lowe v. Zarghami, 158 N.J. 606, 626 (1999) (quoting Zois v. N.J. Sports & Expo. Auth., 286 N.J. Super. 670, 675 (App. Div. 1996)).

As the Court observed in Lowe, the new language does not define "extraordinary circumstances" any more than the prior language defined "sufficient reasons," and therefore, the former rule, that "each case [must] be determined on [the] basis of its own facts," is still the operative rule. Ibid. "'Generally, we examine more carefully cases in which permission to file a late claim has been denied than those in which it has been granted, to the end that wherever possible cases may be heard on their merits....'" Id. at 629 (quoting Feinberg v. N.J. Dep't of Envtl. Prot., 137 N.J. 126, 135 (1994)). Indeed, in a close case, courts are obliged to resolve the doubt in favor of a plaintiff seeking permission to file a late claim. Ibid. A trial judge's decision granting or denying such permission is reviewed for an abuse of discretion, and will be sustained on appeal in the absence of such a showing. O'Neill, supra, 304 N.J. Super. at 550.

A number of decisions have identified what does not constitute "exceptional circumstances." See Beauchamp v. Amedio, 164 N.J. 111, 121 (2000) (plaintiff not aware of the seriousness of injuries until the ninety days had elapsed); Leidy v. County of Ocean, 398 N.J. Super. 449, 460-61 (App. Div. 2008) (the incorrect public entity named in the suit made no effort to correct the mistake); S.P. v. Collier High School, 319 N.J. Super. 452, 465-66 (App. Div. 1999) (ignorance of filing requirements and youth not sufficient, and while plaintiff had learning disabilities, nothing in the record suggested she was incompetent or psychologically or physically unable to file a timely notice); Blank v. City of Elizabeth, 318 N.J. Super. 106, 110-11 (App. Div.) (plaintiff did not know that the pipe projecting from the sidewalk belonged to the City), affirmed as mod., 162 N.J. 150 (1999); O'Neill, supra, 304 N.J. Super. at 553 (although plaintiff was hospitalized eight of the ninety days after the accrual of his cause of action, he failed to demonstrate that he was so incapacitated by a gunshot injury to his leg as to prevent him from consulting an attorney and filing the notice of claim, especially where his psychologist's report was limited to a finding that the plaintiff should have received counseling after his injury); and Zois, supra, 286 N.J. Super. at 674 (attorney's forgetfulness coupled with his secretary's misfiling of paperwork).

The cases finding the existence of "extraordinary circumstances" have been far fewer. Some have found N.J.S.A. 59:8-9 to be satisfied where the defendants, either unintentionally or intentionally, obscured their status as public employees. See Ventola v. N.J. Veterans Mem'l Home, 164 N.J. 74, 75 (2000); Lowe, supra, 158 N.J. at 630.

Only two reported decisions have found the existence of "extraordinary circumstances" in the context of the severity of the plaintiff's injuries or illness, which is the precise claim advanced here. In R.L. v. State-Operated School District, 387 N.J. Super. 331, 341 (App. Div. 2006), we held that a high school student's delay in filing suit against the teacher who had infected him with HIV was excusable in light of the social stigma of the disease, the plaintiff's hesitancy about exposing his HIV status and his preoccupation with thoughts of death. We held that under the "totality of the circumstances" presented, even though each individual reason might have been insufficient, in combination, the judge did not abuse her discretion when she granted the plaintiff's motion for permission to file a late notice of claim. Ibid.

The only other reported decision to have found "extraordinary circumstances" in the context of the plaintiff's illness was Maher v. County of Mercer, 384 N.J. Super. 182, 189 (App. Div. 2006). We held that the plaintiff's repeated hospitalizations, one of which was so severe that she was in an induced coma and not expected to survive, were sufficient to satisfy the "extraordinary circumstances" test of N.J.S.A. 59:8-9, and we reversed the Law Division's order to the contrary.

Although none of the reported decisions present a fact pattern closely resembling the one presented here, we are mindful of the dicta in Maher commenting that the plaintiff's attorney's "own serious health issues independently might be seen as extraordinary." Id. at 189 n.3. The attorney had been admitted to a hospital with a diagnosis of cancer, where he underwent surgery and follow-up treatment. Id. at 185. Because we had already determined that the plaintiff's own circumstances satisfied the requirements for filing a late notice of claim under the Act, id. at 189-90, we saw no need to consider the attorney's cancer diagnosis and treatment as having a bearing on the "extraordinary circumstances" analysis. Id. at 189 n.3. We also declined to consider the attorney's illness because it "did not take place during the ninety-day window following accrual" of the plaintiff's cause of action. Ibid. The significance, however, of the dicta in Maher is its apparent recognition that a cancer diagnosis, followed by surgery and follow-up care, can be sufficient to satisfy the "extraordinary circumstances" requirement of N.J.S.A. 59:8-9.

Relying on O'Neill, defendants argue that a plaintiff's mere preoccupation with his or her medical condition and its consequences is not sufficient to satisfy N.J.S.A. 59:8-9. They further argue that, like the plaintiff in O'Neill, who was well enough to leave the house for repeated doctors visits and could therefore have consulted with an attorney on any of those occasions, O'Neill, supra, 304 N.J. Super. at 552, plaintiff here was well enough to work, and therefore could have consulted with an attorney within the first ninety days.

As a threshold matter, we must determine if the judge erred when, during plaintiff's motion for reconsideration, she refused to consider plaintiff's August 2008 supplemental certification and Dr. Rasin's report. We deem this a critical issue, as it determines the outer limit of the proofs by which we will evaluate plaintiff's claim that she satisfied the N.J.S.A. 59:8-9 "extraordinary circumstances" requirement.

Unquestionably, plaintiff's proofs would have been significantly enhanced had the judge considered the supplemental certification and Rasin's report, as they painted a far more dire picture than that presented in plaintiff's original May 10, 2008 certification and by her testimony at the August 26, 2008 plenary hearing.

A motion for reconsideration is not an opportunity to submit proofs that could have been presented in support of the original motion. Cummings v. Bahr, 295 N.J. Super. 374, 384-85 (App. Div. 1996). As we observed in Cummings:

"Reconsideration should be utilized only for those cases which fall into that narrow corridor in which either 1) the Court has expressed its decision based upon a palpably incorrect or irrational basis, or 2) it is obvious that the Court either did not consider, or failed to appreciate the significance of probative, competent evidence....

Alternatively, if a litigant wishes to bring new or additional information to the Court's attention which it could not have provided on the first application, the Court should, in the interest of justice (and in the exercise of sound discretion), consider the evidence. Nevertheless, motion practice must come to an end at some point, and if repetitive bites at the apple are allowed, the core will swiftly sour. Thus, the Court must be sensitive and scrupulous in its analysis of the issues in a motion for reconsideration."

[Id. at 384 (quoting D'Atria v. D'Atria, 242 N.J. Super. 392, 401-02 (Ch. Div. 1990) (emphasis added)).]

As the judge correctly determined, there was no reason why plaintiff could not have seen Dr. Rasin during the three-month hiatus between May 2008, when she filed her motion, and August 2008, when the plenary hearing was conducted. Nor was there any reason why plaintiff could not have presented the more descriptive and compelling facts in her first certification that she ultimately presented in her second.

During appellate oral argument, we asked plaintiff's counsel what facts he relied on to distinguish Cummings. He responded by asserting that he misunderstood the comments the judge made during the August 26, 2008 hearing, which are the same comments we have already quoted, and maintained that he interpreted her remarks as an assurance that she understood the consequences of a cancer diagnosis and that plaintiff need not describe them. Such claim is not supported by even the most tortured construction of the judge's comments, and is certainly not consistent with any sensible interpretation.

Thus, in light of Cummings's prohibition on presenting proofs during a reconsideration motion that the party could have, but did not, present during the initial hearing, we reject plaintiff's claim that the judge abused her discretion by refusing to consider plaintiff's supplemental proofs. That being so, we turn to an analysis of whether the proofs existing at the time of the August 26, 2008 plenary hearing were sufficient to satisfy the "extraordinary circumstances" requirement of N.J.S.A. 59:8-9.

Preliminarily, we decline to consider defendants' argument that if plaintiff was well enough to go to work during the first three months following her November 2007 diagnosis, she was well enough to consult an attorney. First, the record as it existed at the time the judge made her initial decision on August 27, 2008 contained no information about whether plaintiff was working during the ninety-day period immediately following her November 2007 diagnosis. It was not until plaintiff's supplemental proofs were submitted during the reconsideration motion that the issue of plaintiff's going to work during her treatment period was raised. We have determined that we will not review the supplemental proofs plaintiff urges us to consider, so, in fairness, we should not delve into those proofs at the behest of defendants either. However, were we to review the supplemental proofs and consider the issue of plaintiff's decision to continue working while receiving treatment, the supplemental proofs demonstrate that she was incapable of doing any productive work while there, and spent most of her day in the ladies' room because she was so overwhelmed by nausea.

We have carefully considered the judge's conclusion that plaintiff's proofs were no more compelling than those we rejected in O'Neill. A close reading of O'Neill does not support the judge's conclusion. First, although we were sensitive in O'Neill to the results of the plaintiff's gunshot injury, which caused him to lose neurological function in his right leg, supra, 304 N.J. Super. at 553, we concluded that the record did not support the plaintiff's additional claim that the injury and its sequelae had such a "serious psychological effect on him," ibid., that he was prevented from contacting an attorney. We observed that neither his own testimony nor the expert opinion of his psychologist supported a conclusion "that he did not have the mental capacity to contact an attorney," id. at 554, in the ninety days immediately following his injury.

We concluded that the plaintiff "could have made a trip to an attorney's office or, at least, called one on the telephone, especially since his own certification does not state any facts to the contrary." Ibid. The record in O'Neill demonstrates that after the plaintiff underwent surgery and was hospitalized for a ten-day period, id. at 552, he returned home to permit the injury to heal. The record in O'Neill does not enable us to determine whether, if the plaintiff had a job less physically demanding than that of a police officer, he would have been required to remain at home. Nonetheless, we concluded in O'Neill that although the plaintiff "was justifiably preoccupied with getting his leg examined and treated after the accident," he was not "incapable of contacting an attorney." Id. at 554.

The principal, and dispositive, difference between this case and O'Neill is that unlike this plaintiff, the plaintiff in O'Neill was not facing a life or death illness. Moreover, although our decision in O'Neill does not include a description of the plaintiff's treatment, other than to note that he underwent surgery and was fitted with a leg brace, it is reasonable to assume that his surgery and treatment were far less devastating, both physically and psychologically, than the radical mastectomy, chemotherapy and radiation that plaintiff underwent. As we have discussed, plaintiff's cancer was not caught at an early stage, but had instead advanced for over a year without being detected. Under those circumstances, the psychological devastation is different, not only in degree, but also in kind, from that experienced by the plaintiff in O'Neill. Hence, we view O'Neill as distinguishable.

We recognize that N.J.S.A. 59:8-9 does not define "extraordinary circumstances"; however, as we observed in O'Neill, "[i]n common parlance the term would mean 'unique' or 'unusual' circumstances." Supra, 304 N.J. Super. at 551. Thus, we must measure the effects of plaintiff's diagnosis and treatment, from both a physical and psychological perspective, against the panoply of injuries that could conceivably be sustained by a plaintiff as a result of the alleged wrongdoing of public entities or public employees. Other than a protracted coma, paralysis, or irreversible brain damage, it is difficult to imagine circumstances more devastating to a plaintiff than those presented here. In conducting our analysis, we recognize that we are obliged to examine "'more carefully cases in which permission to file a late claim has been denied than those in which it has been granted, to the end that wherever possible cases may be heard on their merits,'" Lowe, supra, 158 N.J. at 629 (quoting Feinberg, supra, 137 N.J. at 135). We also recognize that in a "close case" courts are obliged to resolve the doubt in favor of a plaintiff seeking permission to file a late claim. Ibid.

A fair reading of plaintiff's proofs, as drawn from her May 10, 2008 certification and her testimony at the August 26, 2008 plenary hearing, presents a picture of a person so overwhelmed by her cancer diagnosis, so consumed by the fear of dying and so preoccupied by the radiation, chemotherapy and mastectomy that were necessary to save her life, that she deferred consulting an attorney until she was assured by her physicians that her health was "back on track." Plaintiff's cancer was not caught at an early stage, but had apparently been permitted to advance for over a year without being detected, thus necessitating a radical mastectomy. Under such circumstances, plaintiff's testimony that she was consumed during the first ninety days following her diagnosis with "thinking about saving [my life]" and "wasn't thinking about" consulting a lawyer does not strike us as an unreasonable or irrational response to the circumstances confronting her.

Applying all of the standards contained in the caselaw, we are satisfied that the judge's refusal to grant such permission here cannot be sustained. As plaintiff poignantly remarked during the hearing, "I wasn't thinking about that. I wasn't thinking about money, I was thinking about myself. Thinking about saving my life." The overwhelming nature of the diagnosis and treatment, and plaintiff's natural preoccupation with those subjects, constituted extraordinary circumstances and the judge mistakenly exercised her discretion when she concluded otherwise.

III.

In light of our disposition, we need not comment at length on plaintiff's additional claim that the judge erred when she concluded that plaintiff knew, or should have known, that defendants were state employees. The judge's findings are amply supported by the record, and we will not disturb them. Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974).

Reversed.


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