Opinion
DOCKET NO. A-2871-11T4
06-18-2012
ESTATE OF JOSEPHINE CORNACCHIO, Plaintiff-Respondent, v. ROBERT WOOD JOHNSON UNIVERSITY HOSPITAL, CARLA SUSSMAN, R.N. (Name illegible) and NURSE JENSEN, Defendants, and CHIRAG SHAH, M.D., Defendant-Appellant.
Daniel B. Devinney argued the cause for appellant (Ruprecht Hart Weeks & Ricciardulli, LLP, attorneys; David Parker Weeks, of counsel and on the briefs; Mr. Devinney, on the briefs). Christian R. Mastondrea argued the cause for respondent (Eichen Crutchlow Zaslow & McElroy, LLP, attorneys; William O. Crutchlow, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff and Waugh.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-5895-10.
Daniel B. Devinney argued the cause for appellant (Ruprecht Hart Weeks & Ricciardulli, LLP, attorneys; David Parker Weeks, of counsel and on the briefs; Mr. Devinney, on the briefs).
Christian R. Mastondrea argued the cause for respondent (Eichen Crutchlow Zaslow &
McElroy, LLP, attorneys; William O. Crutchlow, on the brief). PER CURIAM
This appeal implicates the notice of claim procedures of the Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 12-3, specifically N.J.S.A. 59:8-9. We granted leave to appeal an order granting plaintiff's motion for reconsideration of an earlier order dismissing her complaint against defendant Chirag Shah, M.D. The judge found that plaintiff's representative presented extraordinary circumstances for filing a notice of claim well beyond the period provided by statute. We reverse.
The facts are undisputed. The August 6, 2010 complaint seeks compensatory damages for a fall in the emergency room of Robert Wood Johnson University Hospital (RWJUH) on August 28, 2008. On that date, Josephine Cornacchio arrived at RWJUH from the senior care facility where she resided. She fell from a gurney in the emergency room. She wore a bracelet stating she was at risk for falls. Defendant Chirag Shah, M.D., was her attending physician.
Josephine Cornacchio executed the various admission forms required for admission. Her daughter, Marie Kehoe, executed an identical set of forms. Paragraph 8 of the General/Emergency Admission and Consent to Medical Treatment Form executed by both women contains the following information:
I understand the Robert Wood Johnson University Hospital ("RWJUH") is affiliated with the State of New Jersey, University of Medicine and Dentistry of New Jersey ("UMDNJ"), the State's university of health sciences.
I understand that some attending physicians who may provide my care and treatment at RWJUH may include physicians who are clinical faculty members employed by the State of New Jersey-UMDNJ. These physicians also wear nametags that clearly identify their association with the State of New Jersey-UMDNJ.
I understand that I may also be cared for and treated by medical fellows, residents, and students under the supervision of attending physicians, and that, in my instances, these fellows, residents and students are employees of the State of New Jersey-UMDNJ.
Following her release, Josephine Cornacchio was admitted to RWJUH twice, on November 11, 2008 and December 26, 2008. She died on December 26, 2008. The Estate of Josephine Cornacchio (the Estate) filed its complaint on August 6, 2010; it filed a notice of tort claim on December 1, 2010. The Estate never filed a motion for leave to file a late notice of claim.
Defendant Shah's motion to dismiss the complaint was granted as an unopposed motion on October 6, 2011. In support of the motion for reconsideration, the daughter of the decedent certified she had no knowledge she was required to file a notice of tort claim, and she was unaware any physician who treated her mother was a public employee. The record also reflects that decedent's daughter retained an attorney within a year after her mother's August 2008 fall and removed the case from that attorney and retained her present attorney shortly before the expiration of statute of limitations.
The motion judge found that the Estate "diligently pursued the instant action" by retaining counsel and by retaining new counsel due to lack of action on the file by the initially retained attorney. The motion judge also found that decedent's daughter had no knowledge that the treating physician was a State employee.
Defendant Shah argues that the Estate has not demonstrated extraordinary circumstances to permit the complaint to proceed against him. The Estate responds that it acted diligently and had no knowledge that Shah was a public employee.
The TCA governs negligence claims against public entities and public employees. N.J.S.A. 59:1-2. No claim may proceed without compliance with the terms of the TCA. Ibid.
No action for damages based on a negligent act of a public entity or public employee may proceed without submission of a notice of claim as prescribed by statute. N.J.S.A. 59:8-3 to -7. The notice of claim must be filed within 90 days of accrual of the claim. N.J.S.A. 59:8-8. A person who fails to file a notice of claim within 90 days, may file a late notice of claim, but only by order of the court. N.J.S.A. 59:8-9. The motion to file a late notice of claim must be filed within one year of the accrual of the claim, and the person seeking such relief must demonstrate the public entity or public employee will not be "substantially prejudiced" and "extraordinary circumstances" caused the delay. Ibid.
Extraordinary circumstances must be determined on a case-by-case basis. Allen v. Krause, 306 N.J. Super. 448, 455 (App. Div. 1997). It includes circumstances such as the lack of knowledge or any reason to believe that a medical professional was a state employee. Lowe v. Zarghami, 158 N.J. 606, 629-30 (1999). It also includes circumstances in which the plaintiff knew the hospital was operated by a public entity but reasonably believed the hospital was operated by the United States rather than the State of New Jersey. Ventola v. N.J. Veterans' Mem'l Home, 164 N.J. 74, 81-83 (2000). Extraordinary circumstances do not include wrong advice by an attorney, Bayer v. Township of Union, 414 N.J. Super. 238, 259-60 (App. Div. 2010), or dilatory efforts to identify the ownership of the dangerous condition that caused an injury, Blank v. City of Elizabeth, 318 N.J. Super. 106, 110-11 (App. Div.), aff'd as modified 162 N.J. 150 (1999). Similarly, the failure of misidentified parties to a complaint to advise the plaintiff of the mistake does not constitute extraordinary circumstances. Leidy v. Cnty. of Ocean, 398 N.J. Super. 449, 460-61 (App. Div. 2008).
Plaintiff relies heavily on Lowe but fails to acknowledge that decedent was admitted nine years after issuance of the opinion and the remedial action taken by RWJUH to address the issue of employee identification. In Lowe, the Court addressed the measures UMDNJ must take to provide information to patients and their families about the employment status of treating medical staff. The Court directed:
To resolve patient's doubts surrounding the employment status of their physicians, UMDNJ must require clinical professors employed by them to advise their patients, both orally and in writing, that they are employees of UMDNJ. Such notice should be given to a patient as soon as practicable. It also would be helpful if clinical professors[] wore badges identifying themselves as UMDNJ employees. Those steps, if taken, together with this holding that clinical professors are UMDNJ employees, should make patients more aware that their physicians are public employees entitled to notice under the TCA.
[Lowe, supra, 158 N.J. at 631.]
This record reveals RWJUH adopted the measures directed by the Court. Shah certified that he wore a badge identifying himself as a clinical professor associated with UMDNJ. The admission documents clearly inform the patient or the patient's representative of the fact that UMDNJ employees may be providing treatment. The Estate does not dispute the information contained in these documents or that defendant Shah wore the required identification badge.
In short, the record demonstrates that the status of defendant Shah as a public employee was readily available, if the Estate's representative read the available documents or if the attorney retained by the Estate took appropriate action. Inattention or inaction is not considered an extraordinary circumstance to excuse compliance with a time-sensitive date, such as the time to file a notice of tort claim or a trial de novo following arbitration of certain claims. Wallace v. JFK Hartwyck at Oak Tree, Inc., 149 N.J. 605, 610 (1997). The Estate has demonstrated a good reason for the late notice of claim but not extraordinary circumstances to excuse the submission of a timely claim.
Reversed.
I hereby certify that the foregoing
is a true copy of the original on
file in my office.
CLERK OF THE APPELLATE DIVISION