DOUGLAS FALLON v. GEORGE P. BATSIDES M.D.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

DOUGLAS FALLON AND HELEN

FALLON, his wife,

Plaintiffs-Appellants,

v.

GEORGE P. BATSIDES, M.D. and

ROBERT WOOD JOHNSON UNIVERSITY

MEDICAL CENTER,

Defendants-Respondents.

_________________________________

January 8, 2014

Argued September 11, 2013 Decided

Before Judges Grall and Accurso.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-4754-12.

Brian J. Levine argued the cause for appellants (Brenner & Levine, P.A., attorneys; Mr. Levine, on the brief).

Brian Hunkins, Deputy Attorney General, argued the cause for respondents (John J. Hoffman, Acting Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Mr. Hunkins, on the brief).

PER CURIAM

Plaintiffs Douglas and Helen Fallon appeal an order denying their motion to file a notice of claim under the Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 59:12-3, within ninety days as required by N.J.S.A. 59:8-8. For the reasons that follow, we affirm.

The Fallons' claims are based on the alleged malpractice of Dr. George Batsides. Dr. Batsides is on the faculty of the University of Medicine and Dentistry of New Jersey (UMDNJ) and the staff of Robert Wood Johnson Memorial Hospital (RWJ). Douglas Fallon's cardiologist referred him to Dr. Batsides, and Dr. Batsides saw the patient in an office located in the UMDNJ Clinical Academic Building prior to the surgery. While seeing patients, Dr. Batsides wears one tag identifying him as a member of RWJ's staff and another identifying him as an assistant professor of cardiothoracic surgery at UMDNJ.

Six days prior to his operation, Fallon and Dr. Batsides signed a consent form. In addition to information about the surgery, the form detailed RWJ's affiliation with UMDNJ and "the State's University of Health Sciences." It further indicated that physicians wearing nametags showing their affiliation with UMDNJ are "employed by the State of New Jersey-UMDNJ." Fallon did not dispute any of the evidence concerning Dr. Batsides' status as a State employee. Nevertheless, Fallon asserted that "[a]t no time during the course of my treatment with Dr. Batsides at [RWJ] was I advised verbally or in writing that Dr. Batsides was an employee of the State of New Jersey or an employee of [UMDNJ]."

Dr. Batsides operated on Fallon on July 13, 2010. The purpose of the surgery was to ligate and bypass the patient's right coronary artery. But after the surgery, Fallon continued to experience chest pain in the months that followed the operation. Consequently, Fallon had a diagnostic angiogram on October 2, 2011. The test disclosed that Fallon's right coronary artery was not ligated and his blood was not flowing through the bypass. To correct the problem, Fallon had a second ligation and bypass on November 1, 2011.

Plaintiffs acknowledge that the malpractice claim against Dr. Batsides and RWJ accrued on October 2, 2011. Thus, their notice of claim was due on December 31, 2011. Absent a showing of "extraordinary circumstances" explaining the delay and a lack of prejudice to the State, N.J.S.A. 59:8-9, the court had no authority to permit the filing beyond the deadline.

According to Fallon, his activities during his recovery from the second surgery were "limited." Plaintiffs did not meet with an attorney until January 7, 2012 and did not retain one until January 23. Their lawyer did not serve a notice of claim until April 2, 2012. Consequently, on May 14, 2012, UMDNJ's claim representative advised plaintiffs' lawyer that the notice of claim was untimely. Plaintiffs did not file their motion for leave to file a late notice until July 2012.

Claims against UMDNJ and its employees are governed by the TCA, which "defines the extent of the Legislature's waiver of sovereign immunity and 'establishes the procedures by which claims may be brought[.]'" D.D. v. University of Medicine and Dentistry of New Jersey, 213 N.J. 130, 146 (2013) (alteration in original) (quoting Beauchamp v. Amedio, 164 N.J. 111, 116 (2000)). To qualify as extraordinary, medical conditions must be "severe or debilitating" and have a "consequential impact on the claimant's very ability to pursue redress and attend to the filing of a claim." Id. at 149-50. Where the showing is based on medical condition, the person's condition during the ninety-day period is pertinent. Id. at 151. But, Fallon's assertion about his condition was quite vague: "Subsequent to [the second] bypass surgery, I was recovering from the bypass surgery and was limited in my activities." Fallon provided no additional information about the restrictions, their duration or his condition during the month between the accrual of his claim and the second surgery.

By its terms N.J.S.A. 59:8-9 "commits the authority to grant a plaintiff's motion for leave to file late notice 'to the sound discretion of the trial court, and [its decision] will be sustained on appeal in the absence of a showing of an abuse thereof.'" D.D., supra, 213 N.J. at 147 (alteration in original) (quoting Lamb v. Global Landfill Reclaiming, 111 N.J. 134, 146 (1988)). Applying that standard, we see no reason to intervene here.

The trial court found that Fallon received and signed written notification of Dr. Batsides' status and "knew or should have known that Dr. Batsides was a State employee." The court further concluded that plaintiffs had failed to establish "extraordinary circumstances" based on his condition. The evidence submitted on the motion compelled that conclusion.

On appeal plaintiffs seize upon the trial court's passing reference to Fallon's hospitalization related to the second bypass surgery as "extraordinary." They argue that the court's recognition that this hospitalization was a reason for some of the delay precluded application of the statutory time bar. As we understand the argument, the claim is that if any period of post-accrual disability, no matter how brief, suffices to establish grounds for a grant of leave to file a late notice of claim.

In our view, the absence of any evidence establishing the duration of Fallon's hospitalization and recovery or the impact of his condition on his ability to file a notice of claim required a denial of the motion. We reject plaintiffs' suggestion to remand for a hearing and additional fact finding. The evidence plaintiffs submitted on the motion did not raise a genuine question of material fact warranting an evidentiary hearing.

Affirmed.