On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-4235-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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.
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 ...