NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued November 13, 2013
On appeal from an interlocutory order of the Superior Court of New Jersey, Law Division, Morris County, Docket No. L-0676-11.
Vivian Demas argued the cause for appellant.
Katelyn E. Cutinello argued the cause for respondent (Bubb, Grogan & Cocca, LLP, attorneys; Michael S. Bubb, of counsel and on the brief; Ms. Cutinello, on the brief).
Before Judges Sabatino and Rothstadt.
In this medical malpractice case arising out of complications from a hysterectomy, we review the trial court's interlocutory order rejecting plaintiff's attempt to amend her complaint to add Daniel H. Tobias, M.D., as an additional defendant.
Even though Dr. Tobias was one of three surgeons who participated in the operation, his name and his role in the surgery were improperly omitted from the operative report, in violation of N.J.A.C. 13:35-6.5. A single entry in a separate nurse's record listed Dr. Tobias as an assistant, but it did not disclose his professional title, nor describe the nature of his involvement. Moreover, the interrogatory answers of the two other participating physicians did not mention Dr. Tobias or give any indication that, in fact, a third surgeon had taken part in the operation.
The trial court ultimately rejected plaintiff's amendment adding Dr. Tobias because (1) the two-year statute of limitations, N.J.S.A. 2A:14-2(a), had expired, and (2) plaintiff had not demonstrated at an evidentiary hearing, pursuant to Lopez v. Swyer, 62 N.J. 267 (1973), that principles of equitable tolling justified an extension of the two-year deadline. In essence, the trial court found that plaintiff and her counsel had failed to act with due diligence by not determining sooner that Dr. Tobias could have been responsible for her injury.
We reverse the trial court's order because, under the distinctive circumstances of this case, principles of equitable tolling warrant the inclusion of Dr. Tobias as a co-defendant. Among other things, those distinctive circumstances include faulty medical recordkeeping; the lead surgeon's failure to disclose the third surgeon's involvement to the patient when she consulted him about post-surgical complications; and incomplete, potentially misleading interrogatory responses furnished by the co-defendants in discovery.
Furthermore, we reject, as did the trial court, Dr. Tobias's separate argument that the claims against him are barred because plaintiff's original complaint did not provisionally name a fictitious "John Doe" physician as an additional defendant.
We derive the following factual and procedural background from the existing record, mindful that the case has yet to be tried and that certain facts remain disputed.
Plaintiff Tonya Lyons underwent a hysterectomy on September 8, 2009 at Morristown Memorial Hospital. The two-page operative report, composed that same day, described the procedure. It listed defendant Robert F. Mohr, M.D., as the "PRIMARY SURGEON" for the operation. The operative report also listed defendant Rafael Francisco Unda-Rivera, M.D., a surgical resident, as Dr. Mohr's "ASSISTANT" for the surgery. No other physician or caregiver names, including that of Dr. Tobias, were mentioned in the operative report.
Dr. Unda-Rivera dictated the operative report as part of his assisting responsibilities. Dr. Mohr, whose name appears on both the first and second page, approved the report's contents after it was typed.
The operative report's twenty-line description of the procedure included a notation that "[a] small, 1-cm incision in the vaginal wall was repaired with 2-0 Vicryl." However, the report failed to identify which physician had completed the vaginal wall repair. As plaintiff ultimately learned during the course of the lawsuit, Dr. Tobias was the doctor who performed that repair, despite the absence of his name from the operative report.
Plaintiff suffered complications after she was discharged from the hospital. She had a follow-up visit with Dr. Mohr on October 2 2009 primarily because she was concerned about excessive vaginal leakage she had experienced since the hysterectomy At her deposition she described the problem as "very continuous The flow heaviness would increase or decrease"
When plaintiff asked Dr Mohr what might be causing the leakage he conducted an examination According to plaintiff he concluded that she "may be experiencing a defect There's a tear near [her] cervix where the leakage may be coming from That is probably something that [she] was born with But it's something that I can repair in my office" Plaintiff testified that this was the first time that she had heard about a possible tear in or near her cervix Although Dr Mohr offered to repair the tear in his office she declined his offer [b]ecause I was very uncomfortable with
this was going on since my initial surgery and I complained about this problem repeatedly The idea of me wearing diapers every day indicated to me that something was seriously wrong And that was the first time I had heard as many times as I have been examined by my physician I had never heard that there was a tear near my cervix So the answer wasn't suitable for me and I didn't feel comfortable with it That's why I went back to my original OB/GYN to look at me
According to plaintiff Dr Mohr did not inform her after the surgery that he had requested the assistance of another surgeon in the operating room, in addition to Dr. Unda-Rivera. In particular, Dr. Mohr did not tell her that Dr. Tobias had been the surgeon who repaired the vaginal wall, or, for that matter, that Dr. Tobias had any involvement in her operation. Plaintiff never met Dr. Tobias, nor did she ever speak with him. She did not receive a bill from him.
Plaintiff did sign a form before her surgery that acknowledged, in generic fashion, that she "consent[ed] to the performance of [the hysterectomy] . . . by [her] physician . . . and/or such assistants as may be selected by him/her." The consent form did not refer to Dr. Tobias by name.
As her post-operative complications persisted, plaintiff was referred to a urologist, Dr. Berger,  in November or December of 2009. Dr. Berger conducted a dye test to determine the source of plaintiff's vaginal leakage. Ultimately, Dr. Berger concluded that the leakage was due to a "missing part of [plaintiff's] ureter" and that "it could have been an injury as a result of [her] hysterectomy." Dr. Berger thereafter performed a corrective procedure on plaintiff's ureter in January 2010.
Plaintiff initially consulted with an attorney ("the first attorney") in or about December 2009. As plaintiff explained at the Lopez hearing, she had sought counsel because:
I felt that there was . . . something done wrong during my surgery and I didn't feel that it was taken care of, handled properly. . . . I actually tried to seek help but I didn't get the help from Dr. Mohr that I needed in a timely manner. I just wanted answers, so that's why I went to [my attorney].
The first attorney requested a copy of plaintiff's pertinent medical records. He received them on January 14, 2010. The supplied records included the operative report and a six-page "perioperative record" prepared by a nurse.
The perioperative record identified Dr. Mohr as plaintiff's "PRIMARY SURGEON" and Dr. Unda-Rivera as an "ASSISTANT." In a single entry, the record also listed "TOBIAS, DANIEL H" as another "ASSISTANT" involved in the procedure. Although the document indicates the Tobias went into the operating room at "16:46, " he is the only individual, out of the seven persons listed in this portion of the record, for whom there is no "out" time provided.
Tobias's presence was not mentioned anywhere else in the perioperative record. Nor did the sole entry that referred to him specify whether Tobias was an M.D., D.O., R.N., or some other type of medical professional.
Dr. Unda-Rivera is listed in an entry on the same page of the perioperative record as the entry for Tobias. He is similarly designated as "ASSISTANT." However, his entry includes both a time in and a time out, and, unlike Tobias, specifically indicates that Unda-Rivera is an M.D.
Plaintiff could not recall at the Lopez hearing whether her first attorney had specifically identified any persons that he felt she could assert a cause of action against. In January or early February of 2010, she was referred to her current lawyer ("the second attorney") because her first attorney had discovered a conflict of interest. Plaintiff did not recall going over her medical records with her new counsel. She did remember that she had signed an authorization so that her medical records could be released to the second attorney. Plaintiff acknowledged that she herself did not review the medical records, other than the consent form that she had been asked to sign before the operation.
Richard L. Luciani, M.D., a specialist in obstetrics and gynecology, signed an affidavit of merit on behalf of plaintiff on September 29, 2010. In his affidavit, Dr. Luciani certified that, based upon his review of plaintiff's medical records, "there is a reasonable probability that the care, skill or knowledge exercised or exhibited in the treatment of [plaintiff] by Robert F Mohr, M.D., Rafael Francisco Unda Rivera, M.D., Lifeline Medical Associates, as well as XYZ Corporation . . . fell outside professional treatment standards." Dr. Luciani did not mention Dr. Tobias, or any physician other than Dr. Mohr and Dr. Unda-Rivera.
Through the efforts of her second attorney, plaintiff filed this civil action in the Law Division on March 7, 2011, a date well within two years of her September 2009 surgery. In her original complaint, plaintiff named as defendants Dr. Mohr, Dr. Unda-Rivera, Lifeline Medical Associates ("Lifeline"), and XYZ Corporations I-V (fictitious entities associated with the named individuals). She did not sue the attending nurses. The complaint alleged medical malpractice, contending that the named defendants had "fail[ed] to conform to the governing standards of care, " and did not adhere "to the requisite professional skill, care and judgment recognized as standards in the . . . profession."
Dr. Mohr and Lifeline filed a joint answer on April 11, 2011, denying liability and interposing various affirmative defenses. The answer was accompanied by their counsel's certification, pursuant to Rule 4:5-1, that "to the best of [his] knowledge at this time there are . . . no other parties who should be joined in this action." That same day, Dr. Unda-Rivera also submitted an answer, in which his own attorney certified pursuant to Rule 4:5-1 that "[i]t is not anticipated at this time that there is any other party who should be joined in this action."
Notably, the responses to plaintiff's interrogatories that Dr. Mohr and Dr. Unda-Rivera each provided in the spring of 2011 did not mention Dr. Tobias. In his narrative description of the surgery responding to Form Interrogatory #2, ...