The Superior Court of New Jersey Appellate Division (“New Jersey Appellate Court”) held in its unpublished opinion dated March 21, 2019: “Plaintiff and her counsel pursued reasonable steps to ascertain the true identity of Agency Nurse RN 104 before filing suit and before the statute of limitations ran … Plaintiff reasonably demanded disclosure of the nurse’s identity more than two months before the statute of limitations ran, unfortunately without success.”
The Underlying Facts
The plaintiff’s decedent suffered a fatal allergic reaction after a hospital nurse infused him with a prescribed medication. The plaintiff alleged that the nurse deviated from standards of care by allegedly leaving the patient’s room too soon and failing to monitor his reaction to the drug adequately, as required by the hospital’s policy.
The hospital chart entries for the critical time when the medication was administered to the patient do not contain the nurse’s name. Instead, the nurse is only identified in these critical entries as “Agency Nurse RN 104.” The plaintiff and her attorney attempted to discover the actual identity of the nurse from the hospital’s representatives before the litigation, without success. Consequently, the complaint denominated the nurse as “Agency Nurse RN 104,” which is how her identity appears on the chart.
Approximately three weeks after the statute of limitations ran, the hospital’s counsel finally disclosed the nurse’s identity to the plaintiff’s attorney. The plaintiff then sought and obtained leave from the trial court to substitute the nurse’s name for the original designation.
The nurse retained counsel and thereafter moved to dismiss the complaint as untimely. A different judge granted her motion, concluding that the plaintiff and her counsel had failed to act with reasonable diligence to learn the nurse’s actual identity before the limitations period expired. The plaintiff subsequently filed an appeal.
Ficticious Pleading Rule
The New Jersey fictitious pleading rule, Rule 4:26-4, can allow a measure of relief from the strict application of a statute of limitations. The Rule provides, in pertinent part, that: “In any action, irrespective of the amount in controversy, other than an action governed by R. 4:4-5 (affecting specific property or a res), if the defendant’s true name is unknown to the plaintiff, process may issue against the defendant under a fictitious name, stating it to be fictitious and adding an appropriate description sufficient for identification. Plaintiff shall on motion, prior to judgment, amend the complaint to state defendant’s true name, such motion to be accompanied by an affidavit stating the manner in which that information was obtained.”
The New Jersey Appellate Court stated that the New Jersey Supreme Court has construed Rule 4:26-4 to allow “a plaintiff who institutes a timely action against a fictitious defendant to amend the complaint after the expiration of the statute of limitations to identify the true defendant … When this procedure is properly utilized, [the] ‘an amended complaint identifying the defendant by its true name relates back to the time of filing of the original complaint.'”
A key consideration as to whether a plaintiff is entitled to the time-tolling benefits of Rule 4:26-4 is whether the plaintiff or the plaintiff’s counsel have acted with due diligence in: (1) attempting to ascertain the true identity of a fictitious defendant before the statute of limitations has run, and, thereafter, in (2) moving to seek to amend the complaint once that identity has been ascertained.
The New Jersey Appellate Court held in the case it was deciding: “Having carefully considered the record in light of the applicable law, we are satisfied that plaintiff and her attorney acted with reasonable diligence in attempting – with no avail – to ascertain the true identity of “Agency Nurse RN 104″ before filing suit and before the two-year limitations statute ran on April 6, 2014.”
Source Rosenberg v. Englewood Hospital and Medical Center, Inc., Docket No. A-4525-16T4.
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