September 8, 2020

In a legal malpractice case arising out of a botched medical malpractice case, the Superior Court of New Jersey Appellate Division (“New Jersey Appellate Court”) applied the three-step sequential analysis of Beauchamp v. Amedio, 164 N.J. 111, 118 (2000) to determine the last possible date a motion to permit a late tort claim notice could have been filed to preserve the plaintiff’s New Jersey medical malpractice claim, finding that the plaintiff’s claim was irretrievably lost by the first lawyer who represented her, a year before the second lawyer entered his appearance, and therefore the first lawyer could have no claim for contribution against his successor. Accordingly, the second lawyer’s motion to dismiss the third-party complaint for contribution and indemnification should have been granted as a matter of law.

The Underlying Facts

Eileen McNellis-Wallace (“Wallace”) had a laparoscopic hysterectomy at Kennedy University Hospital (“Kennedy”) in August 2013 that was performed by Dr. Anthony Salerno (“Salerno”). Dr. Salerno advised Wallace immediately afterward that he had nicked her bowel when a piece of robotic equipment failed. Two months later, Wallace retained Joseph Hoffman, Jr. (“Hoffman”) to represent her in a New Jersey medical malpractice action against Salerno. Two days after meeting with the plaintiff, Hoffman drafted a “memo to file” labeled “urgent,” noting “we may have to notify JFK Hospital by a Tort Claims Notice because I believe half of that facility are doctors that are associated with the State of New Jersey.”

The following day, Hoffman’s office served a timely tort claim notice. However, Hoffman’s staff read his memo literally and served the notice on Kennedy, a private entity, and not on Dr. Salerno or his employer, Rowan University. Hoffman never followed-up to ensure the tort claim notice was properly served.

In June 2015, Hoffman’s firm wrote to the plaintiff advising that they would not file any complaint on her behalf because they were convinced “we cannot be successful in any lawsuit against either the manufacturer or the surgeon.” The firm advised the plaintiff of the impending end of the two-year limitations period and recommended other counsel she might consult for a second opinion.

On the last day of the limitations period, third-party defendant Gary D. Ginsberg (“Ginsberg”) filed an eighteen-count complaint against Dr. Salerno and Kennedy, among others. Dr. Salerno answered in October, raising the plaintiff’s failure to comply with the Tort Claims Act as an affirmative defense and listing the State as his insurance carrier on his accompanying case information statement.

The New Jersey Appellate Court stated, “we know plaintiff’s claim accrued on the surgery date in August 2013, and that no notice of claim was served on either Dr. Salerno or Rowan within ninety days thereafter. That leaves only the question of whether extraordinary circumstances could justify a late claim notice “within one year” of accrual of the claim. N.J.S.A. 59:8-9. Here, however, no application for permission to file a late claim was made within a year of accrual, or indeed at any time before Hoffman withdrew from the representation in June 2015, twenty-two months after plaintiff’s cause of action accrued. Hoffman’s failure to serve a tort claim notice on Dr. Salerno or Rowan within ninety days of plaintiff’s surgery or to petition the court to permit a notice of late claim within one year thereafter “forever barred” plaintiff from any recovery against Dr. Salerno or Rowan, a year before Ginsberg took over the file.”

The New Jersey Appellate Court held: “Hoffman’s loss of plaintiff’s medical malpractice claim before Ginsberg’s entry into the case makes clear that Hoffman and Ginsberg could not be joint tortfeasors, and thus Ginsberg’s motion to dismiss Hoffman’s third party complaint should have been granted as a matter of law.”

The New Jersey Appellate Court further held: “Hoffman realized the necessity of a tort claim notice and indeed served one within ninety days of plaintiff’s surgery. He simply served it on the wrong entity and never followed-up to ensure it was properly served in time to save plaintiff’s cause of action against Dr. Salerno or Rowan. Hoffman cannot rely on his client’s lack of knowledge of Dr. Salerno’s status or the requirements of the Tort Claims Act in the face of his own knowledge of the Act’s requirements and his having filed an ineffective notice of claim and not correcting the problem over a ten-month period. The law is now well-settled that a lawyer’s “inattention or even malpractice” in failing to serve a tort claims notice does not constitute extraordinary circumstances.”

Source McNellis-Wallace v. Wallace, Docket No. A-1488-19T1. Filed on July 31, 2020.

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