MARIANA A. BAEZ, as General Administrator and Administratrix of the Estate of FREDDY A. BAEZ, deceased, and MARIANA A. BAEZ, individually, Plaintiffs-Respondents/ Cross-Appellants,
JIMMY M. PAULO, M.D., WAYNE J. CAPUTO, D.P.M., Defendants, and ANDREY SILKOV, M.D., SACHA BALMIR, D.O., and SEONG CHOI, M.D., Defendants-Appellants/ Cross-Respondents.
January 29, 2018
appeal from Superior Court of New Jersey, Law Division, Essex
County, Docket No. L-2632-15.
J. Clancy (Lowis & Gellen, LLP) of the Illinois bar,
admitted pro hac vice, argued the cause for
appellants/cross-respondents (Marshall Dennehey Warner
Coleman & Goggin, PC and Kevin J. Clancy, attorneys;
Louis A. Ruprecht, on the brief; Walter F. Kawalec and Lynne
N. Nahmani, on the brief).
Maran argued the cause for respondents/cross-appellants
(Maran & Maran, PC, attorneys; David Maran, on the
Judges Sabatino, Whipple and Rose.
interlocutory appeal and cross-appeal in this medical
malpractice and wrongful death case concern timeliness
issues. The issues arise out of two facets of the Law
Division motion judge's March 17, 2017 decision. First,
the judge held that the fictitious pleading process under
Rule 4:26-4 did not justify plaintiff's addition
of three defendant physicians to the lawsuit after the
statute of limitations had run. Second, despite
plaintiff's unsuccessful reliance upon the fictitious
pleading rule to toll the limitations period, the court
equitably estopped the three physicians from obtaining
dismissal of the claims against them. The court found those
defendants had unduly delayed in moving for such dispositive
relief after about a year of costly discovery had occurred.
leave granted, the three physicians appeal the trial
court's equitable estoppel ruling, while plaintiff
cross-appeals the court's fictitious pleading decision.
reasons that follow, we reverse the court's fictitious
pleading determination as to one of the three co- defendants.
We do so because decedent's hospital records do not
legibly reveal that particular doctor's name and
involvement in decedent's care. It was unreasonable to
expect plaintiff to have ascertained that doctor's
identity and negligent conduct until her counsel received a
post-suit affidavit from the defense clarifying which doctors
had actually been involved in decedent's care. Upon
receiving the clarifying affidavit, plaintiff promptly
amended the complaint to name the previously unidentified
doctor (and two other doctors) in place of "John
Doe" defendants. Plaintiff's claims against that
particular physician therefore may proceed.
affirm, however, the trial court's fictitious pleading
ruling as to the other two co-defendants who were added late.
Plaintiff could have reasonably ascertained, before the
statute of limitations expired, the respective identities and
involvement in decedent's care of those two doctors.
important caveat, we allow plaintiff's claims to proceed
against one or both of those two late-added doctors insofar
as they may have acted as the decedent's "attending
physician." We do so because the hospital records
misleadingly and erroneously identified a different doctor,
who was actually on vacation at the time, as decedent's
Lastly, we overturn the trial court's application of
principles of equitable estoppel disallowing the dismissal of
the two other doctors. In the absence of a case management
order or court rule prescribing an earlier deadline for
filing such a motion, or an express misrepresentation made to
plaintiff, those defendants did not forfeit their rights to
file a limitations-based dismissal motion near the very end
of the discovery period. Accordingly, we reverse the denial
of summary judgment with respect to those two defendants,
subject to the "attending physician" caveat.
this case has not been tried, our discussion of the facts is
necessarily tentative and incomplete. Our focus is largely on
the procedural chronology that bears upon the critical
timeliness issues presented.
evening of March 28, 2013, plaintiff's decedent Freddy A.
Baez, who was then in his thirties, appeared at the emergency
room at Clara Maass Medical Center. He complained of persisting
left leg swelling, leg pain, fever, and other symptoms.
Decedent was provided with fluids and medication. Blood work
and other tests were performed. Decedent briefly was placed
in a rapid diagnostic unit, where he was further evaluated
and monitored. He then was admitted to a medical floor of the
hospital early the next day, March 29.
physician working at the hospital, Andrey Silkov, M.D.,
examined decedent on March 29. In Dr.
Silkov's typewritten two-page "History and
Physical" report, he described decedent's symptoms
and complaints. The report noted the patient's
"morbid obesity." The report further noted the
patient had a history of a previous "left lower
extremity DVT" (an abbreviation for a deep vein
written plan on admission, Dr. Silkov stated the patient
would be administered intravenous antibiotics and two other
medications. The plan included a request to have the patient
evaluated by an infectious disease specialist. The report was
electronically "signed" by Dr. Silkov. The
doctor's full name is typewritten in three places at the
bottom of the report.
the next several days, decedent was seen and treated at Clara
Maass by several doctors and other health care providers. The
hospital's records for that time frame, to the extent
they have been supplied to us in the appendices, contain a
mixture of typewritten documents and handwritten progress
notes. The handwritten notes are replete with illegible
words, medical jargon, abbreviations, and indecipherable
earliest handwritten entry from decedent's hospital chart
reproduced in the parties' appendices is dated March 29,
2013. As translated, the first narrative line of that entry
states "Admit to Medicine Dr. J. Paulo." The
"Dr. J. Paulo" in that entry refers to Jimmy M.
Paulo, M.D. Many of the other entries in decedent's chart
refer to Dr. Paulo. In fact, plaintiff's counsel
represents, without contradiction by defense counsel, that
Dr. Paulo's name appears about seventy-five times within
portions of the records additionally refer to Dr. Wayne J.
Caputo, a consulting podiatrist who examined decedent at the
hospital. Names of other doctors also appear. Some of them
are handwritten and illegible, and others are either typed or
in legible handwriting.
was discharged from Clara Maass on April 3, 2013. His
discharge summary is set forth on a typed one-page report.
The report's heading identifies decedent's attending
doctor as "Jimmy Paulo, M.D." The report was
electronically signed by Seong Choi, M.D., with copies to Dr.
Caputo, Dr. Choi, and another physician named Dr. Donald
discharge summary relates that decedent had been admitted to
the hospital for left lower extremity cellulitis with a left
hallux lesion. It recounts that decedent had an x-ray of his
toe, which showed no evidence of acute osseous pathology, and
that hospital personnel had performed a debridement on the
toe. The discharge plan called for follow up with
decedent's primary care physician within two weeks, and
with the podiatrist, Dr. Caputo, within one week.
April 16, 2013, thirteen days after his discharge from Clara
Maass, Mr. Baez died of a pulmonary embolism at his home. An
autopsy was performed. Decedent's family thereafter
retained counsel, who obtained and reviewed decedent's
days before the two-year statute of limitations expired,
plaintiff Marian A. Baez, as administrator of her son
Freddy's estate and individually, filed this medical
malpractice action in the Law Division on April 13, 2015. The
complaint asserted claims for both wrongful death and
survivorship damages. The complaint named Dr. Paulo, Dr.
Caputo, and five fictitious defendants denominated as
"John Does" one through five. The complaint
described the five John Does as "physicians licensed to
practice in the State of New Jersey" who were involved
in decedent's care.
claims of medical negligence focus on the diagnosis and
treatment decedent received at Clara Maass during the
five-day period after his admission and before his discharge.
Plaintiff alleges decedent was at high risk for a DVT.
Because of that risk, the medical standard of care allegedly
required decedent to receive at the hospital
"pharmacologic" venous thromboembolism
("VTE") prophylaxis medications, rather than
"mechanical" prophylaxis such as stockings or
intermittent pneumatic compression.
did not receive VTE prophylaxis at the hospital. According to
plaintiff, this omission allowed decedent to develop a blood
clot in his leg. The clot traveled to his lungs, causing a
fatal pulmonary embolism.
Dr. Paulo and Dr. Caputo each filed answers denying
liability, defense counsel on October 16, 2015 sent
plaintiff's counsel an affidavit from Dr. Paulo. The
affidavit attests to Dr. Paulo's lack of involvement in
decedent's care. According to his affidavit, Dr. Paulo
was away on vacation the week that decedent was in the
hospital. The affidavit explains that Dr. Paulo's name
appeared automatically on decedent's records for
administrative reasons, because decedent had been admitted to
a medical practice group headed by Dr. Paulo.
affidavit informed plaintiff's counsel that the Clara
Maass hospitalists in Dr. Paulo's group who actually saw
decedent during his stay were Dr. Silkov, Dr. Choi, and a
third physician, Sacha Balmir, D.O. Unlike those other two
doctors, Dr. Balmir's name is not typed or legibly
written on any of the hospital records.
counsel spoke with defense counsel a few days later. He
agreed to enter into a stipulation of dismissal as to Dr.
Paulo, but requested that defense counsel identify the
authors of various illegible handwritten notes in
decedent's hospital chart. Defense counsel agreed to do
subsequent letter dated November 3, 2015, defense counsel
confirmed that Drs. Silkov, Balmir, and Choi had treated
decedent at the hospital. She elaborated that Dr. Silkov had
admitted the patient on March 29, 2015, that Dr. Balmir had
seen him on March 30 and 31, and that Dr. Choi had discharged
him on April 3. Defense counsel reiterated that Dr.
Paulo's name had appeared on decedent's chart only
"as a matter of routine."
receiving this information, plaintiff executed a stipulation
of dismissal as to Dr. Paulo. Concurrently, plaintiff moved
for leave to amend the complaint to insert Drs. Silkov,
Balmir, and Choi as defendants in place of the
previously-designated "John Doe" defendants. On
November 20, 2015, the trial court granted that motion, which
newly-added defendant physicians filed a joint answer denying
the allegations of malpractice. The answer listed various
affirmative defenses, including non-compliance with the
statute of limitations.
procured the necessary affidavit of merit regarding the three
added defendants. In addition, plaintiff relied upon an
expert report from a professor at the Harvard Medical
School. The expert opined the physicians who
treated decedent deviated from professional standards of care
at the hospital, in failing to sufficiently guard against
decedent sustaining a DVT. He contended this failure was a
causal factor in the patient's post-discharge death.
Discovery thereafter continued. In March 2016, defendants
provided responses to plaintiff's interrogatories, which
included the aforementioned transcriptions of the handwritten
entries in decedent's chart. That same month, defendants
deposed plaintiff, the only deposition they initiated.
Plaintiff's counsel took five depositions: Dr. Caputo in
April 2016; Dr. Balmir and Dr. Silkov in May 2016; and Dr.
Paulo (as a fact witness) and Dr. Choi in October 2016.
Plaintiff also supplied the defense in November 2016 with an