On July 16, 2022, Rodriguez de Nunez, then in the third trimester of a pregnancy, presented at the emergency department of Raritan Bay Medical Center (“RBMC”) in Perth Amboy, New Jersey for treatment. She was accompanied by Nunez, the father of her child, and was admitted to the maternity department. While at RBMC, Rodriguez de Nunez was treated by RBMC nursing staff, resident Carolyn Kwon, M.D., and Nath, the attending obstetrician.
Rodriguez de Nunez gave birth to her daughter Emma via caesarean section while under Nath’s care. The delivery was performed by a non-party physician. Emma died on July 17, 2022, shortly after delivery. At the time she treated Rodriguez de Nunez, Nath was employed by Rutgers, The State University of New Jersey (Rutgers), a public entity. She worked as an attending obstetrician and member of the Rutgers clinical instruction faculty at RBMC through a professional services contract between RBMC and Rutgers. Nath was paid by Rutgers for the services she provided at RBMC.
On July 18, 2023, plaintiffs, on behalf of themselves and Emma’s estate, filed a six-count complaint in the Law Division alleging medical malpractice and wrongful death. They alleged, among other things, Nath failed to appreciate Emma was at increased risk and to perform a timely emergency cesarean delivery of the child, resulting in her death. The complaint does not refer to Nath as a public employee. Plaintiffs did not file a notice of claim with Rutgers pursuant to the New Jersey Tort Claims Act (“TCA”), N.J.S.A. 59:1-1 to :12-3, prior to filing the complaint.
On October 25, 2023, Nath filed an answer. She did not allege any defenses available to public employees under the TCA.
On November 8, 2023, Nath filed an amended answer, in which she alleged defenses under the TCA.
Plaintiffs did not file a notice of claim or seek leave to file a late notice of claim in response to the TCA-related defenses alleged in Nath’s amended answer.
On April 30, 2024, Nath served responses to the interrogatories propounded on her by plaintiffs. In response to Interrogatory No. 12, “If you intend to rely on any statute . . . state the exact title and section,” Nath listed, among other statutes, “Tort Claims Act (N.J.S.A. Section 59:1-1, et seq.).”
Plaintiffs did not file a notice of claim or seek leave to file a late notice of claim in response to the TCA-related references in Nath’s interrogatory responses. Nor did they serve supplemental discovery requests seeking clarification of Nath’s employer at the time she treated Rodriguez de Nunez.
On August 15, 2024, Nath moved to dismiss the complaint with prejudice for plaintiffs’ failure to file a timely notice of claim pursuant to the TCA. Conceding for purposes of the motion her public employment was not evident at the time she treated Rodriguez de Nunez, Nath argued plaintiffs were made aware of her public employment on November 8, 2023, when she filed the amended answer, or, at the latest, April 30, 2024, when she filed her interrogatory responses. Plaintiffs failed to file a notice of claim within ninety days of either of those dates.
The court found plaintiffs’ claims arose on the day Emma died, July 17, 2022. However, because Nath did not wear a uniform identifying her as a State employee or notify plaintiffs orally or in writing of her public employment while treating Rodriguez de Nunez, the court applied the discovery rule to determine the accrual date of plaintiffs’ claims for purposes of the TCA. The court found plaintiffs’ claims accrued at the latest on April 30, 2024, when Nath served her responses to plaintiffs’ interrogatories. The court found the responses identified Nath as a public employee and stated she was claiming the immunities and protections of the TCA.
The Superior Court of New Jersey Appellate Division stated in its August 11, 2026 unpublished opinion: “To the extent Nath’s public employment initially was not expressly disclosed to plaintiffs in contravention of the Court’s instructions in Lowe, the omission was cured when Nath filed the amended answer and served her interrogatory responses. The motion court addressed the delayed disclosure of Nath’s public employment by applying the discovery rule to find plaintiffs’ claims accrued on April 30, 2024. The adjustment of the accrual date provided plaintiffs with the statutory ninety-day period to file a notice of claim. Although we do not endorse Rutgers’ failure to comply with Lowe and trust the university will ensure its future practices follow the Court’s instructions regarding notice, we conclude the motion court’s adjustment of the accrual date of plaintiffs’ claims provided adequate opportunity for them to file a timely notice of claim.”
The New Jersey appellate court affirmed the dismissal of the plaintiffs’ claims.
Source Nunez v. The Raritan Bay Medical Center, Docket No. A-1792-24.
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