New Jersey Appellate Court Remands Medical Malpractice Case To Determine Accrual Date And If Extraordinary Circumstances Exist

The Superior Court of New Jersey Appellate Division (“New Jersey Appellate Court”) held in its November 12, 2021 unpublished decision “because the court did not determine the accrual date and therefore could not properly assess whether there were exceptional circumstances during the relevant ninety-day period, and did not make the requisite findings of fact supporting its decision, we vacate the court’s order and remand for further proceedings. On remand, the court shall conduct such proceedings, and allow such filings by the parties, as it deems necessary to first determine the accrual date of Lopez’s claim. Lopez has the burden of proving the accrual date.”

The Underlying Facts

The New Jersey medical malpractice plaintiff, Luis Lopez, hurt his back at work in February 2019. Over the following five weeks, he visited emergency rooms seven times at three different hospitals for back pain that grew progressively worse.

On April 10, 2019, Lopez made his eighth hospital visit. He went to the emergency department at University Hospital, where he was seen by Dr. Shahidi. Lopez was diagnosed with back pain and discharged that day. The following day, April 11, 2019, Lopez went to Hackensack University Medical Center (HUMC). He underwent emergency surgery after it was determined he had “an expanding lesion . . . in his thoracic spine.” Following the surgery, he remained at HUMC until April 30, 2019. On that date, he was transferred to Regent Care Center for rehabilitation, and he remained there until the end of August or beginning of September 2019.

In his certification, Lopez stated he has no medical background and that when he learned he had a growth on his spine in April 2019, he “had no idea [he] had a possible malpractice claim.” His “only thoughts at that time were to get through [his] surgery and the rehabilitation that [he] needed after [his] surgery.” Plaintiff’s New Jersey medical malpractice lawyer certified that plaintiff “remains disabled as a result of the failure to timely diagnose and treat the thoracic lesion.”

Lopez’s late notice of claim averred that the twenty-four-hour delay in diagnosing the lesion – from April 10, 2019, when Dr. Shahidi examined Lopez, to April 11, 2019, when Lopez was seen at HUMC – caused spinal cord and neurological injuries, pain and suffering, emotional distress, and other injuries. Lopez’s medical malpractice attorney’s certification asserted “[t]he delay of more than [twenty-four] hours in initiating treatment could likely have been of significance in [plaintiff’s] outcome.”

The trial court determined Lopez’s claim did not accrue prior to his discharge from Regent Care Center in August or September 2019. The trial court further found Lopez “did not know that he had a medical malpractice claim[,]” prior to his emergency surgery, “and then during the time from April 11th, 2019 he was in the rehab center and he couldn’t determine whether or not he had a claim.” The trial court, however, did not determine the actual accrual date of Lopez’s claim against University Hospital and Dr. Shahidi.

The trial court further found Lopez demonstrated “extraordinary circumstances in order to file a late claim,” but the court did not make any findings of fact as to what those circumstances were. The court noted only that Lopez’s motion was filed on June 15, 2020, which was “within one year of when he found out that he had a claim.”

New Jersey Appellate Court Decision

The New Jersey Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 14-4, requires that a plaintiff asserting tort claims against a public entity or employee serve the entity or employee with a notice of the claim within ninety days of the accrual of the claim. The harshness of N.J.S.A. 59:8-8’s ninety-day requirement, however, is in part alleviated by N.J.S.A. 59:8-9, which “permits a court to allow a plaintiff to file a late notice of claim under ‘extraordinary circumstances,’ if the motion is made within one year of the accrual of the claim.”

The New Jersey Appellate Court stated that where a claimant does not file a notice of tort claim within ninety days, he or she “may ‘be permitted to file such notice at any time within one year after the accrual of [the] claim'” by showing “‘sufficient reasons constituting extraordinary circumstances for [the] failure to file’ within ninety days of the accrual of [the] cause of action as required by N.J.S.A. 59:8-8.” Leave to file a late notice of claim, however, may be granted only if “the public entity or the public employee has not been substantially prejudiced thereby” … Whether a claimant establishes extraordinary circumstances permitting the late filing of a notice of claim presents an “entirely distinct” issue from the determination of the claim’s accrual date … where a claimant seeks leave to file a late notice claim, he or she must demonstrate that during the ninety-day period following the accrual date, extraordinary circumstances prevented the filing of a timely notice of claim … Even where extraordinary circumstances are demonstrated, a late notice of claim is not permitted where the public entity will be substantially prejudiced. N.J.S.A. 59:8-9. However, “it is the public entity that has the burden of coming forward and of persuasion on the question of [substantial] prejudice.””

The New Jersey Appellate Court stated: “Here, the motion court erred by failing to undertake the first step in the analysis required to determine if Lopez is entitled to file a late notice of claim … The court did not determine the accrual date of Lopez’s malpractice claim against University Hospital and Dr. Shahidi … Instead, the court more generally stated that because Lopez was first in HUMC until the end of April 2019, and then in Regent Care Center until the end of August or beginning of September, his claim could not have accrued before then … The court’s general conclusion is untethered to any findings of fact based on the evidence presented as to why the claim did not accrue on April 11, 2019, when Lopez learned at HUMC that he had a lesion on his spine requiring immediate emergency surgery that clearly was not diagnosed the day before when he allegedly saw Dr. Shahidi at University Hospital and was sent home with a diagnosis only of back pain … The court also did not engage in any analysis or make any findings supporting application of the discovery rule to toll the running of the ninety-day period for the filing of a timely notice of claim. For example, the court did not consider or decide whether Lopez presented evidence establishing that he suffered from the type of severe, debilitating, or uncommon injury that rendered him unable to file a notice of claim, thereby tolling the ninety-day period for that reason.”

The New Jersey Appellate Court therefore remanded the case so that “the [trial] court shall conduct such proceedings, and allow such filings by the parties, as it deems necessary to first determine the accrual date of Lopez’s claim. Lopez has the burden of proving the accrual date.”

Source In The Matter Of Leave To File A Late Notice Of Claim Pursuant To The New Jersey Tort Claims Act On Behalf Of Luis Lopez, Docket No. A-0465-20.

If you or a loved one may have been injured due to medical malpractice 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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This entry was posted on Wednesday, December 29th, 2021 at 5:24 am. Both comments and pings are currently closed.

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