Opinion
DOCKET NO. A-0460-14T1
02-10-2016
JOHN DEEGAN, and MICHELE DEEGAN, Plaintiffs-Appellants, v. DR. SUN H. LEE and ROBERT WOOD JOHNSON MEDICAL SCHOOL, Defendants-Respondents.
Richard J. Mirra argued the cause for appellants (Hoagland, Longo, Moran, Dunst & Doukas, LLP, attorneys; Jeffrey S. Intravatola, of counsel; Mr. Mirra, on the briefs). Stephen R. Tucker, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Mr. Tucker, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Leone and Whipple. On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-3758-14. Richard J. Mirra argued the cause for appellants (Hoagland, Longo, Moran, Dunst & Doukas, LLP, attorneys; Jeffrey S. Intravatola, of counsel; Mr. Mirra, on the briefs). Stephen R. Tucker, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Mr. Tucker, on the brief). PER CURIAM
Plaintiffs John Deegan and Michele Deegan appeal the denial of his motion to file a late notice of claim against defendant Dr. Sun H. Lee, a public employee, and defendant Robert Wood Johnson Medical School (RWJ), a public entity, pursuant to the Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 13-10. We affirm.
It appears Michele Deegan is John Deegan's wife and her claim is derivative of John Deegan's claim. Thus, we will refer solely to John Deegan (Deegan).
I.
Deegan alleges the following facts in his motion certifications. Deegan was referred to Lee for back surgery by his workers' compensation carrier. On August 19, 2013, at RWJ, Lee performed on Deegan a total laminectomy with decompression, fusion, and pedicle screws. After the surgery, Lee told Deegan "it would take up to a year to fully heal." Subsequently, Deegan suffered continuous pain, which rendered him unable to leave his home, drive, stand for more than twenty minutes, or return to work.
Deegan further alleged that on February 26, 2014, 191 days after his surgery, Deegan consulted counsel regarding a possible medical malpractice claim against Lee and RWJ. Until this meeting with his attorney, Deegan did not know Lee was a public employee or that RWJ was a public entity. However, at this meeting, counsel advised Deegan that Lee might be entitled to receive a notice of claim due to his employment status, and that the notice of his claim typically had to be filed within "90 days of the incident in question."
On June 19, 2014, 113 days after meeting with his counsel, Deegan through counsel filed a motion to file a late notice of claim against Lee and RWJ pursuant to N.J.S.A. 59:8-9. In his certification in support of the motion, Deegan's counsel stated that "[a]t this time my firm has been asked to assist the Deegans." After hearing argument, Judge Barry A. Weisberg denied Deegan's motion on July 25, 2014.
On August 14, 2014, Deegan filed a motion for reconsideration. Judge Weisberg denied reconsideration on September 9, 2014, for the same reasons provided at the time of the denial of the original motion.
Deegan filed a Notice of Appeal on September 24, 2014, challenging the trial court's denial both of the motion to file a late notice of claim and of the motion for reconsideration.
II.
The TCA "imposes strict requirements upon litigants seeking to file claims against public entities." McDade v. Siazon, 208 N.J. 463, 468 (2011). Chapter Eight of the TCA provides that "[n]o action shall be brought against a public entity or public employee under this act unless the claim upon which it is based shall have been presented" to the appropriate public entity in a written notice of claim. N.J.S.A. 59:8-3; see N.J.S.A. 59:8-4 to -7. "A claim relating to a cause of action for death or for injury or damage to person or to property shall be presented as provided in this chapter not later than the 90th day after accrual of the cause of action." N.J.S.A. 59:8-8. However, "the notice provisions of the [TCA] were not intended as a 'trap for the unwary.'" Lowe v. Zarghami, 158 N.J. 606, 629 (1999) (citation omitted). Thus, the Legislature provided:
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 . . . 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[.]
[N.J.S.A. 59:8-9 (emphasis added).]
Thus, if a claimant seeks to present a late notice of claim pursuant to the TCA, "the grant or denial of remedial relief is 'left to the sound discretion of the trial court, and will be sustained on appeal in the absence of a showing of an abuse thereof.'" McDade, supra, 208 N.J. at 476-77 (citation omitted). We must hew to this standard of review.
III.
"In determining whether a notice of claim under N.J.S.A. 59:8-8 has been timely filed, a sequential analysis must be undertaken." Beauchamp v. Amedio, 164 N.J. 111, 118 (2000).
The first task is always to determine when the claim accrued. The discovery rule is part and parcel of such an inquiry because it can toll the date of accrual. Once the date of accrual is ascertained, the next task is to determine whether a notice of claim was filed within ninety days. If not, the third task is to decide whether extraordinary circumstances exist justifying a late notice.
[Id. at 118-19.]
Usually, the date of accrual is the "date of the incident on which the negligent act or omission took place." Id. at 117. Here, Deegan claims the negligence occurred when he underwent surgery on August 19, 2013. Thus, Deegan had ninety days from August 19, 2013, in which to present a notice of claim, unless the discovery rule applied.
The discovery rule applies when "the victim either is unaware that he has been injured or, although aware of the injury, does not know that a third party is responsible." Ibid. Under the discovery rule, a claim accrues when "the injured party discovers, or by an exercise of reasonable diligence and intelligence should have discovered that he may have a basis for an actionable claim." McDade, supra, 208 N.J. at 478-79 (quoting Lopez v. Swyer, 62 N.J. 267, 272 (1973)).
However, as Deegan conceded at oral argument before the trial court, he failed to raise the issue of the discovery rule in his initial motion to file a late notice of claim. As the discovery rule was not properly raised in the trial court, we decline to determine that issue on appeal. We "will decline to consider questions or issues not properly presented to the trial court when an opportunity for such presentation is available unless the questions so raised on appeal go to the jurisdiction of the trial court or concern matters of great public interest.'" State v. Robinson, 200 N.J. 1, 20 (2009) (quoting Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973)). Neither exception applies here.
Even assuming the discovery rule applied, Deegan had discovered, or reasonably should have discovered, that he had been injured, and that Lee and RWJ was responsible, no later than February 26, 2014. On that date, Deegan consulted with counsel about suing Lee and RWJ for malpractice for causing his injuries. Nonetheless, Deegan did not attempt to file a late notice of claim until 113 days after this meeting — well beyond the statutorily-required ninety days. As a result, Deegan's claim is barred unless he has shown "extraordinary circumstances" to justify a late filing of a notice of claim pursuant to N.J.S.A. 59:8-9.
Deegan argues extraordinary circumstances existed because initially he did not know that Lee was a public employee or that RWJ was a public entity. To support his contention, Deegan cites Lowe and Eagan v. Boyarsky, 158 N.J. 632 (1999). In Lowe, a publicly-employed physician purposely obscured his public employment while doing surgery in a private hospital. Lowe, supra, 158 N.J. at 630. Our Supreme Court found such conduct constituted extraordinary circumstances because the patient could not know the physician was entitled to notice of claims under the TCA. Id. at 630-31. Similarly, Boyarsky held that "extraordinary circumstances could exist for the filing of a late notice of claim where the public entity, intentionally or unintentionally, obscured the identity of the appropriate responsible entity to be sued." Boyarsky, supra, 158 N.J. at 641.
Here, there was evidence that Deegan had notice that Lee was a public employee and that RWJ was a public entity. Lee certified that during his treatment of Deegan beginning in 2012, he wore an identification badge on his lab coat bearing the name of his public employer, UMDNJ, and that it was his practice to hand his patients his business card showing his employment by RWJ and UMDNJ. Lee also certified it was his practice to verbally inform all of his patients that he was employed by UMDNJ, and after mid-2013, by Rutgers, The State University. Furthermore, Lee certified it was his practice to have all of his patients sign a consent form. The consent forms signed by Deegan in July 2012 and in August 2013 state that RWJ "is affiliated with the State of New Jersey, [UMDNJ]," that "some attending physicians . . . who may provide my care and treatment at [RWJ], are employed by the State of New Jersey-UMDNJ," and that "[t]hese physicians also wear nametags that clearly identify their association with UMDNJ." Deegan signed the forms, affirming that he understood. Moreover, there is no evidence that Lee or RWJ sought to obscure their status as part of a public entity.
RWJ was originally part of the University of Medicine and Dentistry of New Jersey (UMDNJ). Effective July 1, 2013, pursuant to "The New Jersey Medical and Health Sciences Education Restructuring Act," N.J.S.A. 18A:64M-1 to -43, UMDNJ, including RWJ, was transferred to Rutgers, The State University of New Jersey.
In any event, the trial court did not need to resolve the veracity of Deegan's claim that he somehow remained unaware during his treatment by Lee at RWJ that they were part of a public entity. Even accepting Deegan's claim that he did not know that Lee was employed by RWJ, that RWJ was a public entity, and that Lee was a public employee, until he consulted with counsel on February 26, 2014, counsel corrected that lack of knowledge when he concededly informed Deegan that Lee might be entitled to receive a notice of claim under the TCA. Nonetheless, as the trial court emphasized, Deegan made "no attempt" to file a motion to present a late notice of claim until 113 days later, well beyond the ninety-day period. Further, as the trial court noted, it remains "totally unexplained" why the motion was not filed for 113 days.
Deegan also contends that extraordinary circumstances exist to justify his late notice of claim because he was advised by Lee that he should expect a long recovery of up to one year. Deegan thus argues that he did not know whether his condition following the surgery was normal or the result of malpractice. See Abboud v. Viscomi, 111 N.J. 56, 60, 65 (1988) (applying the discovery rule). Moreover, Deegan claims that extraordinary circumstances exist because his pain, medication levels, and focus on his recovery kept him from seeking redress against Lee and RWJ.
We note that this claim, which Deegan raises as extraordinary circumstances, might have been better brought as a claim of unawareness which postponed accrual of the claim under the discovery rule. "Although occasionally the facts of a case may cut across those issues, they are entirely distinct. It is a common and regrettable occurrence for accrual and extraordinary circumstances to be treated as interchangeable and for courts and litigants to overlook the primary question of accrual and directly confront the ultimate question of extraordinary circumstances." Beauchamp, supra, 164 N.J. at 119. Nonetheless, whether we consider Deegan's claim under the discovery rule or under the extraordinary circumstances rubric he has adopted, it is meritless for the reasons that follow. --------
Deegan also contends that Lee and RWJ should be equitably estopped from claiming a lack of notice within the ninety-day period due to Lee's statement that recovery would take up to a year. See McDade, supra, 208 N.J. at 480. As Deegan did not raise the issue of estoppel in the trial court, we decline to consider it here. See Robinson, supra, 200 N.J. at 20.
In any event, again the trial court did not need to resolve the veracity of Deegan's contentions. Nor do we need to determine whether his medical condition was initially "severe or debilitating" enough to meet the TCA's "high standard." D.D. v. Univ. of Med. & Dentistry of N.J., 213 N.J. 130, 149-50 (2013); see, e.g., Maher v. Cty. of Mercer, 384 N.J. Super. 182, 189-90 (App. Div. 2006) (finding being induced into a coma was an extraordinary circumstance). Even if Deegan initially was unaware that his injuries were the result of malpractice, was lulled by Lee's prediction, or was physically unable to act, he was sufficiently aware, alerted, and able by February 26, 2014, when he admittedly met with counsel "for a consultation regarding a potential medical malpractice case." At that point, he could have directed counsel to file a notice of claim. Instead, Deegan waited another 113 days to file a notice of claim.
Thus, whether considered individually or collectively, the initial difficulties alleged by Deegan cannot constitute extraordinary circumstances, because they were sufficiently alleviated that he was able to pursue his malpractice claim with his counsel on February 26, 2014. Deegan has offered no excuse for failing to present a notice of claim in the next 113 days, or for failing to file a motion for leave to present a late notice of claim within a reasonable time. Epstein v. State, 311 N.J. Super. 350, 356 (App. Div.) (finding that waiting three months to file a motion for leave to file a late notice of claim constituted an "unexplained lack of diligence"), certif. denied, 155 N.J. 589 (1998).
Deegan argues that a hearing should have been held to determine whether the extraordinary circumstances requirement of the TCA was met, because this determination involves issues of credibility. See Lopez, supra, 62 N.J. at 275-76. As set forth above, however, the trial court did not need to determine the credibility of Deegan's allegations that he was initially unaware that Lee and RWJ were part of a public entity, unsure that he was the victim of malpractice, or unable physically to pursue a malpractice claim. Instead, the trial court properly relied on Deegan's admission that on February 26, 2014, he was able to consult with counsel about his potential medical malpractice claim, and was informed by counsel that Lee was likely a public employee, and thus that a notice of claim was required.
Given Deegan's unexplained 113-day delay following his meeting with his counsel, Deegan did not make a prima facie showing of extraordinary circumstances under N.J.S.A. 59:8-9, and no hearing was required. As there were no extraordinary circumstances in this case, we need not reach the "substantial prejudice" analysis discussed in Beauchamp, supra, 164 N.J. at 118.
Thus, we find the trial court did not abuse its discretion in declining to grant Deegan permission to file a late notice of claim under N.J.S.A. 59:8-9, or in denying reconsideration.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION