June 10, 2019

The Superior Court of New Jersey Appellate Division (“New Jersey Appellate Court”) held in its unpublished opinion filed on May 24, 2019: “We are satisfied that plaintiff’s extreme situation constituted extraordinary circumstances because it had an “impact on the claimant’s very ability to pursue redress and attend to the filing of a claim” … [The plaintiff] had no reason to suspect she had been injured by a third party at least until after the second surgery, and then no doubt was rendered immobile by her physical condition and depression. These were extraordinary circumstances.”

The plaintiff made a New Jersey medical malpractice claim against a public entity and thus must comply with the provisions of the New Jersey Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 12-3. The plaintiff appealed from a September 15, 2017 order denying her motion for reconsideration of the judge’s earlier decision refusing to grant her leave to file a late notice of claim pursuant to N.J.S.A. 59:8-9.

The New Jersey medical malpractice plaintiff is a non-English speaker who was born with scoliosis that became significantly exacerbated after a serious car accident and the birth of her twin daughters, causing her severe pain and difficulty breathing. The defendant surgeon performed surgery on March 24, 2016, assuring the plaintiff it would alleviate her pain and ease her breathing. When the plaintiff awakened from the surgery, she immediately experienced more not less pain, and had neither movement nor sensation in her left leg.

The defendant surgeon assured the plaintiff that a second surgical procedure would resolve the problem, explaining that a small group of patients required more extensive procedures. The defendant surgeon performed a second surgery on the plaintiff on May 12, 2016, after which the plaintiff never regained the use of her leg, is now incontinent, and is wheelchair bound. Through and until November 2016, the defendant surgeon remained optimistic that the plaintiff’s significantly worsened condition would correct itself.

At the end of October, 2016, a social worker with whom the plaintiff was acquainted urged her to consult with a New Jersey medical malpractice attorney. That lawyer explained he was not interested in her case, and that if the potential defendants were state employees, a TCA notice would have to be filed within ninety days. The plaintiff alleged that she had not known that the defendant surgeon was a state employee. The plaintiff met with her current New Jersey medical malpractice lawyer on March 22, 2017, and immediately filed a late notice of claim and a motion for leave to file a late notice of claim.

The judge ruled against the plaintiff on the motion for reconsideration because he considered the accrual date to have been when the first surgery occurred in March 2016. The judge reasoned that when the plaintiff awakened to find she had lost movement and sensation in her left leg, she should have known that the medical care she received was negligent. In the judge’s view, the defendant surgeon’s statement to the plaintiff that additional surgery would resolve the problem “provides clear notice that something was amiss.” Additionally, the judge did not consider the plaintiff’s physical condition created extraordinary circumstances that allowed for a filing beyond the ninety days after her first surgery. The judge did not reach the issue of substantial prejudice because he denied the motion.

The New Jersey Appellate Court stated that “even if the claimant is aware that he or she is injured but does not know the injury is attributable to another, “the discovery rule tolls the date of accrual as to that unknown responsible party.”” “The critical inquiry is “whether the facts presented would alert a reasonable person, exercising ordinary diligence, that he or she was injured due to the fault of another. The standard is basically an objective one-whether plaintiff ‘knew or should have known’ of sufficient facts to start the statute of limitations running.” … The New Jersey Appellate Court further stated “t]he discovery rule also applies to the notice requirement; the ninety-day period for filing a notice of claim is tolled “until the injured party learns of the injury or of the third party’s responsibility for that injury.””

N.J.S.A. 59:8-9

N.J.S.A. 59:8-9 governs late notices of claim and states: “A claimant who fails to file notice of his claim within 90 days as provided in section 59:8-8 of this act, may, in the discretion of a judge of the Superior Court, be permitted to file such notice at any time within one year after the accrual of his claim provided that the public entity or the public employee has not been substantially prejudiced thereby. Application to the court for permission to file a late notice of claim shall be made upon motion supported by affidavits based upon personal knowledge of the affiant showing sufficient reasons constituting extraordinary circumstances for his failure to file notice of claim within the period of time prescribed by section 59:8-8 of this act or to file a motion seeking leave to file a late notice of claim within a reasonable time thereafter . . . . ”

The New Jersey Appellate Court stated that in the case it was reviewing, “the judge mistakenly applied his discretion when he found [the plaintiff’s] cause of action accrued after the first surgery and she had not demonstrated that extraordinary circumstances existed to justify the filing of a late notice of claim.”

In the case the New Jersey Appellate Court was deciding, the defendant surgeon assured the plaintiff that a second surgical procedure would resolve the problem, explaining that a small group of patients required more extensive procedures. “[The plaintiff’s] physical and mental debilitation following that surgery constitute extraordinary circumstances, beyond the norm, if there is one, of those who allege their treatment provider has committed medical malpractice and seek to file a late notice of claim. Prior to surgery, [the plaintiff] was at least mobile, if in pain. After the second procedure, she lost the use of one leg, became incontinent, and became wheelchair bound. Throughout, she was the single caretaker of toddlers, and required the assistance of her family even though it meant they had to temporarily leave their own country. Additionally, because of pain, she was administered morphine, oxycodone, and anti-depressants, in addition to engaging in futile efforts at rehabilitation.”

The New Jersey Appellate Court held: “These were extraordinary circumstances … We remand the matter, vacate the orders denying [the plaintiff’s] motions to file a late notice of claim and for reconsideration, and remand for the filing of a complaint, answers, discovery, and trial.”

Source Nunez v. Rutgers University Medical School, Docket No. A-0779-17T2.

If you or a loved one may have been injured as a result of medical negligence in New Jersey or in another U.S. state, you should promptly find a New Jersey medical malpractice lawyer, or a medical malpractice lawyer in your state, who may investigate your medical malpractice claim for you and represent you or your loved one in a medical malpractice case, if appropriate.

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