LOURDES SYLVESTER et al. v. DR. LAWRENCE HARRISON

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6582-04T56582-04T5

LOURDES SYLVESTER and

STEVEN SYLVESTER,

Plaintiffs-Appellants,

v.

DR. LAWRENCE HARRISON,

Defendant-Respondent,

and

DR. DOROTHY ROCOURT,

Defendant.

__________________________________________

 

Argued July 11, 2006 - Decided August 3, 2006

Before Judges Parker and Sapp-Peterson.

On appeal from the Superior Court of New Jersey, Law Division, Essex County,

L-6619-02.

Joel C. Seltzer argued the cause for appellants.

Anthony M. Juliano argued the cause for respondent (Wolf, Block, Schorr & Solis-Cohen, attorneys; Charles X. Gormally, of counsel; Adelaide Riggi and Mr. Juliano, on the brief).

PER CURIAM

Plaintiffs Lourdes Sylvester and her husband, Steven Sylvester, appeal the entry of an order granting summary judgment, dismissing their complaint against defendant Dr. Lawrence Harrison, for their failure to comply with the notice and damages provisions of the New Jersey Tort Claims Act (Act), N.J.S.A. 59:1-1 to 12-3. We affirm.

Plaintiffs admitted the following facts in their opposition to defendant's summary judgment motion. In June 2000, plaintiff Lourdes Sylvester, who was 46 years old at the time, detected a lump in her breast. Following a mammography and ultrasound, she was referred to defendant, a full time faculty physician and employee of the University of Medicine and Denistry of New Jersey (UMDNJ). Defendant performed a needle biopsy of the mass in plaintiff's breast. The biopsy revealed focal high-grade ductal dysplasia. Defendant recommended that plaintiff undergo an excisional biopsy. Plaintiff agreed to the procedure, which defendant performed on July 14, 2000. The biopsy confirmed ductal carcinoma in situ (DCIS). Defendant next performed a lumpectomy. Following that procedure, plaintiff experienced some bleeding from the breast incision when pressure was applied. Defendant conducted a post-operative examination of plaintiff on August 9, 2000, at which time she was discharged from UMDNJ.

Subsequent to her discharge from the hospital, plaintiff continued to experience bleeding from the breast incision. She returned to defendant for further treatment. Defendant examined the bleeding, applied an additional suture, and treated the wound. Over the next several months, plaintiff was treated, in connection with the breast surgery, by emergency staff physicians and nurses at Newark Beth Israel Medical Center. She was also treated by a visiting nurse, who irrigated and packed the breast incision with one-inch gauze. Plaintiff was later referred to Dr. Robert Goldenkranz of North Beth Israel Hospital for a wound evaluation. During that evaluation, which took place on October 18, 2000, Dr. Goldenkranz placed pressure on plaintiff's breast and removed a "long gauze" material.

Plaintiffs filed their complaint on July 8, 2002, in which they alleged defendant was negligent in the treatment he provided in connection with plaintiff's breast surgery. Defendant was personally served on July 29, 2002, and filed an answer to the complaint on January 16, 2003. As part of his answer, defendant raised separate defenses, which included plaintiffs' failure to timely satisfy the notice and damages provisions of the Act, pursuant to N.J.S.A. 59:8-8, 8-9 and 9-2d.

The matter proceeded through discovery over the next three years. During discovery, plaintiff was deposed and testified that, since the surgery, she experienced pain that consisted of a closing, tightening, and swelling in her back, right chest/breast area, arm and hand. She also testified she experienced pain in her chest whenever she attempted to lift her right arm. Plaintiff reported that she underwent one physical therapy session since the surgery and took Percocet for pain. She indicated her breast was scarred but that she declined plastic surgery. Plaintiff also testified that she experienced difficulty with the activities of daily living, such as tying her shoes, combing her hair, and cleaning her home.

As part of the exchange of discovery, defendant served "Form A(1) Uniform Interrogatories to be Answered by Plaintiff in Medical Malpractice Cases Only: Superior Court" upon plaintiffs. Interrogatory #9 requested plaintiff to:

9. State the names and addresses of any and all proposed expert witnesses. Set forth in detail the qualifications of each expert named and attach a copy of each expert's current resume. Also attach true copies of all written reports provided to you by any such proposed expert witnesses.

With respect to all expert witnesses, including treating physicians, who are expected to testify at trial, and with respect to any person who has conducted an examination pursuant to Rule 4:19, state each such witness's name, address and area of expertise and attach a true copy of all written reports provided to you.

State the subject matter on which your experts are expected to testify.

State the substance of the facts and opinions to which your experts are expected to testify and provide a summary of the factual grounds for each opinion.

[Pressler, Current N.J. Court Rules, Appendix II at 2264 (2006).]

Plaintiffs, in response to this interrogatory, identified Dr. Mitchell Frost as their expert and attached his curriculum vitae. Dr. Frost was also the physician who prepared a Declaration of Merit.

On June 10, 2005, defendant filed a motion for summary judgment, seeking dismissal of plaintiffs' complaint. Defendant sought relief based upon: (1) plaintiffs' failure to comply with the notice provisions pursuant to N.J.S.A. 59:8-8 and 8-9 of the Act; and (2) plaintiffs' failure to meet the threshold requirements of a permanent injury pursuant to N.J.S.A. 59:9-2d of the Act. Plaintiffs did not dispute their failure to comply with the notice provisions under the Act. The only fact they disputed was defendant's contention that "[p]laintiff has failed to produce an objective medical or expert report to substantiate her injuries."

The judge granted the motion, concluding that plaintiffs failed to comply with the notice provision under the Act. In addition, the court concluded, "there's no showing of a substantial loss of bodily function which would be the threshold for the tort claims act, so that I will grant the motion for summary judgment.

Plaintiffs raise one point on appeal:

POINT I

EXTRAORDINARY CIRCUMSTANCES IN THIS MATTER SHOULD ALLOW FOR A LATE FILING OF THE TORT CLAIMS NOTICE OR AT THE MINIMUM A HEARING ON THE FACTUAL CIRCUMSTANCES CONCERNING DR. HARRISON'S EMPLOYMENT STATUS.

In the brief submitted on behalf of plaintiffs, they allege that "they were confused or misled by the circumstances surrounding the location of Dr. Harrison's offices[,]" which plaintiffs' counsel argued was located next door to UMDNJ. In addition, counsel also noted that, during defendant's deposition testimony, he testified his billing service was handled by University Physicians Associates, even though he was compensated by UMDNJ. Thus, plaintiffs urge they had no way to know defendant was employed by UMDNJ.

Our analysis begins with a reiteration of the basic principles of appellate review. The standard of review of a trial court's grant of summary judgment is the same as that employed by the trial court. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). Summary judgment is appropriate where there is no genuine issue as to any material fact challenged. R. 4:46-2(c). Moreover, where, as in this case, the salient facts are not genuinely disputed, our function is solely to determine whether the judge's legal conclusions are correct. Kopin v. Orange Prods., Inc., 297 N.J. Super. 353, 366 (App. Div.), certif. denied, 149 N.J. 409 (1997).

Although plaintiffs dispute having knowledge of defendant's status as an employee of UMDNJ, there is no dispute that defendant was actually employed by UMDNJ throughout the course of his treatment of plaintiff. As such, any recovery against defendant is governed by the Act.

A prerequisite to maintaining a cause of action against a public employee is compliance with the Act's notice provisions. N.J.S.A. 59:8-8 requires any person asserting a claim against a public employee to file a notice of claim "within 90 days after the accrual of a cause of action, or that claim will be forever barred." Escalante v. Twp. of Cinnaminson, 283 N.J. Super. 244, 248 (App. Div. 1995). "The rationale underlying the notice requirement of the Act is to expedite investigation with the hope of reaching a non-judicial settlement and to allow the public entity prompt access to information about the claim so that it may prepare a defense." Pilonero v. Twp. of Old Bridge, 236 N.J. Super. 529, 533 (App. Div. 1989). Under certain circumstances, where a claimant fails to comply with the ninety-day notice requirements, the claimant may move for leave to file a late notice of claim pursuant to N.J.S.A. 59:8-9, which permits a claimant to move before a judge of the Superior Court for leave to file a late notice of claim within "one year after the accrual of his claim provided the . . . public employee has not been substantially prejudiced thereby."

In construing the latter provision, courts have adopted a liberal approach to granting such applications, with the view that whenever possible, cases should be heard on their merits. See Lowe v. Zarghami, 158 N.J. 606, 629 (1999). Notwithstanding this liberal approach, the reverse is true after the one-year period had elapsed. Iaconianni v. N.J. Tpk. Auth., 236 N.J. Super. 294, 298 (App. Div. 1989), certif. denied, 121 N.J. 592 (1990).

Plaintiffs rely upon two Supreme Court cases decided on the same day, Eagan v. Boyarsky, 158 N.J. 632 (1999), and Lowe, supra, 158 N.J. 606, to support their claim that extraordinary circumstances should have allowed the late filing in this matter. Lowe and Eagan both involved claimants treated by defendants who were clinical professors employed by UMDNJ, but who actually practiced at affiliate private hospitals or health maintenance organizations (HMO). Id. at 611-13; Eagan, supra, 158 N.J. at 635-37. The plaintiff in Lowe had filed a timely motion for relief during the one-year period following the accrual of her claim under N.J.S.A. 59:8-9, while the plaintiff in Eagan did not file a claim until some seventeen months after the claim accrued. Lowe, supra, 158 N.J. at 613; Eagan, supra, 158 N.J. at 637. The Court in both cases addressed the absence of a definition of extraordinary circumstances under the Act. Lowe, supra, 158 N.J. at 624-31; Eagan, supra, 158 N.J. at 640-42. It observed that the 1994 amendments to N.J.S.A. 59:8-8, which added language that a claimant's reasons for non-compliance with the notice requirements must be "extraordinary" rather than merely sufficient, contained no definition of "extraordinary," just as the earlier statute had provided no definition of "sufficient." Lowe, supra, 158 N.J. at 625-26. The Court reasoned that this omission was indicative of the obligation of the trial courts to resolve these applications on a case-by-case basis. Id. at 626.

In doing so the Court in Lowe found that private physicians and physicians employed by UMDNJ both practiced at the private hospital where plaintiff was treated, and it reasoned that the defendants' status was thus obscured. Id. at 630. In Eagan, the Court concluded the plaintiff had even less reason to suspect defendants were employed by UMDNJ because plaintiff was referred to the defendant doctors by her HMO physician, and throughout the course of her treatment, actually met with the defendants at an HMO facility. Eagan, supra, 158 N.J. at 642-43.

Applying the case-by-case analysis approach to the facts before us, we find no extraordinary circumstances. All of plaintiff's treatment took place at UMDNJ. Plaintiffs' counsel urges that plaintiffs were "confused or misled by the circumstances surrounding the location of Dr. Harrison's office." This, however, is unsupported by any evidence in the record. See Blank v. City of Elizabeth, 318 N.J. Super. 106, 111-12 (App. Div.), aff'd, in part and modified in part, 162 N.J. 150 (1999). We note that the complaint, filed more than eighteen months after plaintiff's cause of action accrued, states defendant's office was located at "the University of Medicine and Denistry, 150 Bergen Street, Newark, New Jersey." Yet, even at that point, plaintiffs failed to seek leave to file a late notice of claim. Moreover, the record does not reveal any certification from plaintiffs in which they attempt to explain the circumstances surrounding their failure to file a notice of claim or to seek leave to file a late notice of claim. For example, there is no indication of the date when plaintiffs first sought counsel or when plaintiffs retained their current counsel. In the absence of any explanation, we cannot conclude that the motion judge abused his discretion in granting defendant's motion. See O'Neill v. City of Newark, 304 N.J. Super. 543, 550 (App. Div. 1997).

Moreover, we are equally satisfied that the record likewise fails to raise a genuinely disputed issue of fact that plaintiff's injuries vault the threshold requirement of permanent injury under the Act. N.J.S.A. 59:9-2d. The statute provides:

No damages shall be awarded against a public entity or public employee for pain and suffering resulting from any injury; provided, however, that this limitation on the recovery of damages for pain and suffering shall not apply in cases of permanent loss of a bodily function, permanent disfigurement or dismemberment where the medical treatment expenses are in excess of $3,600.00.

[N.J.S.A. 59:9-2d.]

Proof of a permanent loss of a bodily function under the Act must be established through objective evidence, and the permanent loss must be substantial. Gilhooley v. County of Union, 164 N.J. 533, 540-41 (2000). A determination of whether a plaintiff has met the tort claim threshold is fact sensitive. Knowles v. Mantua Twp. Soccer Ass'n, 176 N.J. 324, 331 (2003). Once a plaintiff presents evidence that the injury resulted in a permanent loss of a substantial bodily function, the plaintiff has met the threshold and may proceed with the claim. Gerber v. Springfield Bd. of Educ., 328 N.J. Super. 24, 35-36 (App. Div. 2000). Failure, however, to present objective proof of a permanent loss resulting from a defendant's negligent conduct precludes recovery, irrespective of a plaintiff's subjective complaints. Hammer v. Twp. of Livingston, 318 N.J. Super. 298, 305-06 (App. Div. 1999).

We are persuaded that the record in this matter reveals no objective evidence of a permanent loss of a bodily function. The sole medical opinion that addresses plaintiff's injuries is the "Declaration of Merit" attached to plaintiff's answers to interrogatories. As a preliminary observation, to the extent plaintiffs intended this declaration is the requisite Affidavit of Merit under N.J.S.A. 2A:53A-27, it is deficient. See Kirtzberg v. Tarsny, 338 N.J. Super. 254, 258-59 (App. Div. 2001). Moreover, substantively, the declaration, as an expert opinion, does not identify the nature and extent of plaintiff's injuries nor reference any objective testing or manifestation of the permanent loss of a bodily function which is substantial. See Ibid. Dr. Mitchell's only reference to plaintiff's injuries is contained in the last sentence of the declaration where he states, "[a]s a direct and proximate result of the deviation the plaintiff suffered pain, infection and further invasion of her person."

During her deposition plaintiff testified that following the surgery, she experienced pain in her back, chest, breast, arm, hand, had difficulty raising her right arm, and attended one physical therapy session. She also testified that she sustained scarring of the right breast, for which she declined plastic surgery. Plaintiff presented no objective evidence to support her subjective complaints nor any evidence from which the trial judge could have determined the scarring of the right breast resulted from negligent conduct, as distinguished from the residuals of the surgery, and further that the scarring constituted significant disfigurement under the Act.

We are, therefore, convinced the motion judge properly found, as an additional basis for granting summary judgment, that plaintiffs failed to meet the threshold requirements for the recovery of damages under the Act. N.J.S.A. 59:9-2d.

Affirmed.

 

Lourdes' spouse also asserted a per quod claim.

(continued)

(continued)

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A-6582-04T5

August 3, 2006