MIRIAM A. RUDAY v. SHORE MEMORIAL HOSPITAL

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3646-10T1

MIRIAM A. RUDAY,

Plaintiff-Appellant,

v.

SHORE MEMORIAL HOSPITAL,

Defendant-Respondent.

_______________________________

October 18, 2011

Argued October 4, 2011 - Decided

Before Judges Payne and Simonelli.

On appeal from interlocutory orders of the Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-485-09.

Donald G. Targan argued the cause for appellant (Targan & Pender, attorneys; Mr. Targan and Michael J. Pender, on the briefs).

Timothy M. Crammer argued the cause for respondent (Crammer, Bishop & O'Brien, attorneys; Mr. Crammer, on the brief).

PER CURIAM

By leave granted, plaintiff Miriam A. Ruday appeals from the February 18, 2011 Law Division orders, which denied her third motion to amend her complaint to add defendants after the expiration of the statute of limitations, and granted the motion of defendant Shore Memorial Hospital (Shore) to limit its damages to $250,000 pursuant to the Charitable Immunity Act (the Act), N.J.S.A. 2A:53A-7 to -11.1. We affirm.

On January 1, 2008, plaintiff, then eighty-six years old, was admitted to Shore as a result of a fall at her home. The hospital classified her as a "fall risk," which required medical personnel to reassess her regularly to ensure her safety. Because of her risk status, plaintiff was placed in a bed that was equipped with two side rails in the "up" position and with a bed alarm that notified hospital personnel if she left the bed. The alarm, which minimizes but does not prevent falls, is located at the foot of the bed, and is activated by pushing a button. A light goes on when the alarm is activated.

At approximately 5:30 a.m. on January 2, 2008, hospital personnel discovered plaintiff on the floor of her room, near her bed. She had apparently climbed over the bed rails and fallen to the floor. Plaintiff fractured her right femur, and the fall accelerated the onset of dementia. Plaintiff claimed that one or more Shore employees negligently deactivated the bed alarm. Shore admitted the alarm had been deactivated, but never admitted negligence or that a Shore employee was responsible.

Plaintiff obtained her hospital records prior to filing a complaint. The records revealed that nurse Beverly Peifer was on duty and assigned to care for plaintiff from 7:00 p.m. on January 1, 2008, to 7:00 a.m. on January 2, 2008, and performed several neurological assessments on plaintiff before midnight on January 1 and again at 4:00 a.m. on January 2. Peifer denied that she deactivated plaintiff's bed alarm. The records also reveal that nurses Phyllis Noddin, Kimberly Gardener, Kimberly Williams and nurse's aide Severino Untalan (the First Nurse Group) were involved in plaintiff's care.

Plaintiff had also obtained an expert's report prior to filing her complaint. The expert concluded, in part, that the nursing staff was negligent and had violated the standard of care for patient safety and falls. On February 5, 2009, plaintiff filed a complaint against Shore and fictitious individuals and corporations. She did not name Peifer or anyone from the First Nurse Group as defendants.

In plaintiff's answers to interrogatories, served in June 2009, she identified the negligent parties as "Shore . . . directly and through its medical staff, including the nursing staff . . . on duty during the time period of January 2, 2008, including Beverly Peifer . . . ." Plaintiff also stated that the nurses and staff listed in her hospital records possessed knowledge of relevant facts relating to the lawsuit.

Plaintiff's interrogatories to Shore requested the names of all persons who had knowledge of any relevant facts relating to the lawsuit. Sometime prior to October 21, 2009, Shore provided the following answer:

The parties; all physicians, nurses, and other health care professionals who treated, examined, or otherwise cared for the plaintiff at any time in connection with any injuries sustained due to the alleged negligence of the defendant and/or in connection with any pre-existing conditions; all persons named in all other parties' answers to interrogatories and in any documents supplied during discovery; all persons identified during any depositions taken in this case; and, such other persons whose identities are revealed through further discovery and investigation.

[(Emphasis added).]

The statute of limitations expired on January 2, 2010. See N.J.S.A. 2A:14-2. Plaintiff deposed Shore's nurse manager on January 5, 2010, and its nurse supervisor on April 26, 2010. Plaintiff did not ask either witness to identify nurses who had worked on the floor where plaintiff's room was located at the time of the incident.

On May 26, 2010, plaintiff filed a motion to amend the complaint to add Peifer as a defendant. Judge Nelson Johnson denied the motion, concluding that "[Peifer] was known [to plaintiff] from day one" and "was identified in plaintiff's answers to interrogatories as someone complicit in the malpractice." The judge entered an order on July 23, 2010, memorializing his decision.

Plaintiff then asked Shore to provide "[t]he identity of all nurses or techs who could have been in [plaintiff's] room the evening of 1/1/08 [through] 1/2/08." On August 18, 2010, Shore identified Peifer and the First Nurse Group. Shore also identified nurse Shirina Jones, who drew blood from plaintiff on the morning of January 2.

Plaintiff filed a motion for reconsideration of the July 23, 2010 order, and a second motion to amend her complaint to add the First Nurse Group and Jones as defendants. In an October 15, 2010 written decision, the judge denied plaintiff's motion for reconsideration, holding that the additional legal authority plaintiff cited did not cure the inadequacy of her motion to amend to add Peifer as a defendant because plaintiff knew Peifer's identity when she filed her complaint.

In a separate October 15, 2010 written decision, the judge denied plaintiff's motion to amend, finding that plaintiff could have easily discovered the identities of the First Nurse Group and Jones prior to the expiration of the statute of limitations through plaintiff's hospital records or by deposing Shore nursing personnel. The judge held that plaintiff failed to exercise due diligence, as required by Rule 4:26-4.

Plaintiff had also previously requested the names of the nurses who worked on plaintiff's floor at the time of the incident.1 On December 1, 2010, Shore identified nurses Joy Thompson, Irene Salbacion, Debra Pestalozzi, Suzanne Callahan, and Amy Breunig (the Second Nurse Group) as nurses who were on duty on plaintiff's floor the night of her fall, but did not care for plaintiff. Based on this alleged "newly discovered evidence," plaintiff filed a third motion to amend her complaint to add these individuals as defendants. Plaintiff also sought reconsideration of the denial of her previous motions to amend the complaint, but only as to Peifer and Untalan. Plaintiff argued that it was appropriate to include all of these nurses pursuant to Anderson v. Somberg, 67 N.J. 291 (1975). Shore opposed the motion, and filed a motion to limit its damages under the Act.

By two orders entered on February 18, 2011, Judge Johnson denied plaintiff's motions for the reasons stated in his October 15, 2010 written decisions. The judge also granted Shore's motion to limit its damages to $250,000. This appeal followed.

On appeal, plaintiff contends that Judge Johnson failed to provide factual findings or legal conclusions, as required by Rules 1:6-2(f) and 1:7-4, in denying her last motion to amend, and erred in denying the motion. In her reply brief, she contends, in part, that the Act does not apply here.

We review a trial judge's denial of a motion to amend a pleading under the abuse-of-discretion standard. Prime Accounting Dep't v. Twp. of Carney's Point, 421 N.J. Super. 199, 209 (App. Div. 2011). We review a trial judge's failure to state any reasons for the denial of a motion to amend a pleading under the same standard. Cardell, Inc. v. Piscatelli, 277 N.J. Super. 149, 155 (App. Div. 1994). An "abuse of discretion only arises on demonstration of 'manifest error or injustice[,]'" Hisenaj v. Kuehner, 194 N.J.6, 20 (2008) (quoting State v. Torres, 183 N.J.554, 572 (2005)), and occurs when the trial judge's "'decision [was] made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis.'" United States ex rel. USDA v. Scurry, 193 N.J.492, 504 (2008) (alteration in original) (quoting Flagg v. Essex Cnty. Prosecutor, 171 N.J.561, 571 (2002)).

We are satisfied that Judge Johnson complied with Rules1:6-2(f) and 1:7-4 by relying on the reasons in his October 15, 2010 decisions to deny plaintiff's third motion to amend her complaint. Those reasons apply equally to all of the individuals plaintiff sought to add as defendants following the expiration of the statute of limitations. We discern no abuse of discretion in the denial of all of plaintiff's motions.

Rule 4:26-4 states:

In any action . . ., if the defendant's true name is unknown to the plaintiff, process may issue against the defendant under a fictitious name, stating it to be fictitious and adding an appropriate description sufficient for identification. Plaintiff shall on motion, prior to judgment, amend the complaint to state defendant's true name, such motion to be accompanied by an affidavit stating the manner in which that information was obtained. If, however, defendant acknowledges his or her true name by written appearance or orally in open court, the complaint may be amended without notice and affidavit. No final judgment shall be entered against a person designated by a fictitious name.

"The fictitious party rule suspends the running of the statute of limitations when a plaintiff does not know the true identity of a defendant." Mears v. Sandoz Pharm, Inc., 300 N.J. Super. 622, 628 (App. Div. 1997). "When diligent discovery discloses the party's name, amendment of the complaint may relate back and allow an action otherwise time-barred." Brown v. Kennedy Mem'l Hosp.-Univ. Med. Ctr., 312 N.J. Super. 579, 587 (App. Div.), certif. denied, 156 N.J. 426 (1998). However, "[t]he rule will not protect a plaintiff who had ample time to discover the unknown defendant's identity before the running of the statute of limitations." Pressler & Verniero, Current N.J. Court Rules, comment 2 on R. 4:26-4 (2011) (citing Matynska v. Fried, 175 N.J. 51, 53 (2002)). Permitting a plaintiff to amend a complaint even if he had not exercised due diligence "would not only fail to penalize delay on the plaintiff's part, but would also disregard considerations of essential fairness to the defendant, thereby violating the purpose behind the statute of limitations." Mears, supra, 300 N.J. Super. at 630 (internal citations and alterations omitted).

Here, plaintiff filed her complaint alleging, in part, that Shore's nursing staff was negligent. Plaintiff named fictitious defendants, who she identified, in part, as individuals whom negligently and carelessly failed to comply with the nursing standards of care for her treatment. There is no question that prior to filing her complaint, plaintiff knew Peifer's true identity. She also knew or could have discovered the true identities of the First Nurse Group from her hospital records. Following the filing of her complaint, and prior to the expiration of the statute of limitations, plaintiff could have discovered the true identities of both nurse groups. Plaintiff's failure to exercise due diligence precludes the amendment of her complaint.

Anderson provides no equitable ground to waive the statutory bar to amending the complaint. The fact that plaintiff's bed alarm was deactivated does not "bespeak negligence" in the same way as a foreign object left in a patient during surgery. Unlike in Anderson, where the Court found that "there was no explanation for the occurrence in the case save for negligence or defect on the part of someone connected with the manufacture, handling, or use of the instrument," see id. at 303, anyone in this case, hospital personnel or someone else who had access to plaintiff's room, such as a visitor, could have deactivated the bed alarm.

Further, the bed alarm itself would not have necessarily prevented plaintiff's fall. It would have merely notified the nurses earlier that plaintiff had left her bed. Thus, the facts of this case indicate that Anderson would not apply even if the statute of limitations had not expired and plaintiff had successfully amended her complaint to include all of the proposed defendants.

Finally, Judge Johnson properly limited Shore's damages to $250,000 under the Act. The Act is to "be liberally construed" in order to further "the public policy for the protection of nonprofit corporations, societies, and associations organized for religious, charitable, educational or hospital purposes." N.J.S.A. 2A:53A-10. The Act limits damages against a hospital to $250,000. N.J.S.A. 2A:53A-8. The damage limit applies even if the hospital is vicariously liable in connection with its employees' conduct, and regardless of whether the employees, if named as defendants, would be entitled to the limit. See Martin v. Perth Amboy Gen. Hosp., 104 N.J. Super. 335, 338 (App. Div. 1969); Maciag v. Strato Med. Corp., 274 N.J. Super. 447, 457 (App. Div. 1994), rev'd on other grounds, sub nom. Estate of Chin v. Saint Barnabas Med. Ctr., 160 N.J. 454, 465 (1999).

Affirmed.

1 The record does not reveal when this request was made.