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Baez v. Paulo

Superior Court of New Jersey, Appellate Division

March 2, 2018

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.

          Argued January 29, 2018

         On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-2632-15.

          Kevin 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).

          David Maran argued the cause for respondents/cross-appellants (Maran & Maran, PC, attorneys; David Maran, on the briefs).

          Before Judges Sabatino, Whipple and Rose.


          SABATINO, P.J.A.D.

         The 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.

         On leave granted, the three physicians appeal the trial court's equitable estoppel ruling, while plaintiff cross-appeals the court's fictitious pleading decision.

         For the 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.

         We 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.

         As an 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 attending physician.

          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.


         Since 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.

         On the 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.[1] 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.

         A physician working at the hospital, Andrey Silkov, M.D., [2]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 thrombosis).

         In his 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.

         Over 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 signatures.[3]

         The 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 those records.

         Typewritten 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.

         Decedent 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 Beggs.[4]

         The 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.

         On 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 hospital records.

         Three 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.

         Plaintiff's 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.

         Decedent 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.

         After 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.

         The 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.

         Plaintiff's 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 so.

         In a 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."

          Upon 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 was unopposed.[5]

         The 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.

         Plaintiff 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.[6] 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 ...

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