LUCILLE MELTON v. PRATIK B. PATEL, M.D.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1494-13T3

LUCILLE MELTON,

Plaintiff-Appellant,

v.

PRATIK B. PATEL, M.D., NEW

BRUNSWICK CARDIOLOGY GROUP,

KUNAL PAREKH, P.A.,

Defendants-Respondents,

and

ROBERT WOOD JOHNSON

UNIVERSITY HOSPITAL, ARCHANA

PATEL, M.D.,

Defendants.

________________________________

August 3, 2015

Argued December 15, 2014 Decided

Before Judges St. John and Rothstadt.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-1139-11.

Bruce H. Nagel argued the cause for appellant (Nagel, Rice, LLP, attorneys; Mr. Nagel, on the briefs).

Gary L. Riveles argued the cause for respondents Pratik B. Patel, M.D. and New Brunswick Cardiology Group (Dughi, Hewit & Domalewski, P.C., attorneys; Mr. Riveles, on the brief).

Christine M. Jones argued the cause for respondent Kunal Parekh, P.A. (Farkas & Donohue, LLC, attorneys; Ms. Jones, on the brief).

PER CURIAM

Plaintiff Lucille Melton appeals the Law Division's order granting summary judgment in favor of defendants Pratik B. Patel, M.D., and Kunal Parekh, P.A., dismissing her medical malpractice claim. In her initial complaint, plaintiff named the wrong "Dr. Patel" as her allegedly negligent treating physician and did not include Parekh, her allegedly negligent treating physician's assistant. She did include fictitious "John Does 1-10" as defendants. After learning of her omission, plaintiff amended the complaint to name the correct Dr. Patel. After Patel identified Parekh as plaintiff's treating physician's assistant in an interrogatory answer, plaintiff again amended the complaint to assert a claim against Parekh. Both amendments occurred, however, after the expiration of the applicable statute of limitations, N.J.S.A. 2A:14-2.

The two defendants moved for summary judgment based on plaintiff's filing out-of-time. The court denied their motions, as the judge allowed the parties to conduct discovery on plaintiff's "due diligence" in attempting to obtain defendants' names before amending her complaint. Plaintiff did not supply that information, and both defendants renewed their motions. The court granted defendants' motions and dismissed the malpractice claims.

On appeal, plaintiff argues that the trial court erred in finding she failed to adhere to the "fictitious name" rule, failed to satisfy the "relation back" standard, and finding that defendants were prejudiced by their being sued out-of-time.

We have considered plaintiff's argument in light of our review of the record and applicable law. We affirm.

We derive the facts from the motion record, considering them in the light most favorable to plaintiff, giving her "the benefit of all favorable inferences that can be drawn from the evidence." Giannakopoulos v. Mid State Mall, 438 N.J. Super. 595, 612 (App. Div. 2014). certif. denied, __ N.J. ___ (2015).

On February 9, 2009, then eighty-eight year old plaintiff was admitted to the emergency department at Robert Wood Johnson University Hospital (RWJUH) due to atrial fibrillation. In a procedure performed by Patel, she underwent cardiac catheterizations, and two stents were inserted. After performing the procedures, Patel signed the procedure and progress notes also indicating his telephone number. Plaintiff was discharged on February 13, 2009. The hospital's discharge records indicated that physician's assistant Parekh was also involved in her treatment.1 Specifically, that typewritten record indicated Parekh requested Warfarin, alternatively referred to as "Coumadin," in the dosage amount of 5 mg.2 Parekh's signature also appeared on RWJUH's progress notes as the "P.A." for plaintiff on February 12 and 13.

After plaintiff returned home, she began to notice blood in her stool, and notified Patel. On February 17, 2009, she presented for an examination and testing at Patel's practice, defendant New Brunswick Cardiology Group (NBCG). Testing revealed abnormalities, and Patel ordered her not to take any more Coumadin until her next visit, scheduled for February 20. Plaintiff was instructed to go to the emergency department if she noticed any more bleeding.

The next day, plaintiff was again admitted to the RWJUH emergency department after complaining of blood in her stool. She underwent a blood transfusion as a result of internal bleeding, and was discharged on February 24, 2009. After her discharge, she continued her treatment with Patel, and saw him on four more occasions, the last on October 2, 2009.3 According to plaintiff and her daughter, they were told in February 2009 and thereafter, plaintiff's problems were the result of being prescribed the wrong dosage of Coumadin.

In approximately June 2010, plaintiff retained counsel to pursue a lawsuit against Patel for the injuries she suffered as a result of Patel prescribing an excessive dosage of Coumadin. Due to her age-related cognitive issues, she was assisted by her daughter in speaking to counsel. Plaintiff's daughter told counsel that plaintiff had been treated by "Dr. Patel" at RWJUH, and did not specify whether the doctor was male or female. Based on the information, counsel investigated and identified a female RWJUH cardiologist, Dr. Archana Patel (A. Patel). On June 3, 2010, counsel sent a letter to A. Patel, stating

Please be advised that we represent Lucille Melton who was treated by you. You have confirmed that she received the wrong dose of Coumadin and has suffered certain injuries as a result thereof. Kindly have your malpractice carrier contact our office so that we may attempt to settle our claims.

After receiving no response, plaintiff's counsel followed up with a second letter on June 23, 2010; and then sent a third re-addressed letter on August 3, 2010.4

On February 10, 2011, a day before the statute of limitations ran, plaintiff filed a complaint against A. Patel and her practice group, the Robert Wood Johnson Medical Group. A. Patel answered the complaint on July 7, 2011, and on September 6, 2011, she filed an affidavit of non-involvement. Plaintiff's claims against A. Patel were later dismissed in November 2011, based on her being uninvolved with plaintiff's treatment.

After receiving the affidavit of non-involvement, plaintiff subsequently obtained a consent order, which was entered on September 26, 2011, and allowed her to file an amended complaint on September 29, 2011, naming Patel and NBCG. Patel answered the complaint. He also responded to plaintiff's interrogatories on April 19, 2012. In his answer to one of the interrogatories he identified Parekh as the physician's assistant who "wrote the discharge order for Warfarin at 5 milligrams." His identification of Parekh came only from reading the hospital's records of plaintiff's treatment and not his independent knowledge. Based on this information and after obtaining the court's permission on October 26, 2012, plaintiff filed a second amended complaint on November 15, naming Parekh as a defendant.

In February 2013, Patel and NBCG filed a motion for summary judgment, and Parekh filed the same motion a month later. They all argued plaintiff filed her complaint out of time. The court dismissed the motions without prejudice, but with the assumption that they would be renewed after further discovery. The court noted two issues to be resolved: first, whether plaintiff had exercised due "diligence" in obtaining the correct defendant's name,5 and second, whether Patel actually knew of the litigation before it was filed out-of-time, as would satisfy the relation-back requirements. Also, the court anticipated there would be discovery on the issue of plaintiff's "diligence" when plaintiff knew or should have known that Parekh was her treating physician's assistant, and when did she obtain the document that named him.6

On June 7, 2013, Parekh's counsel sent a letter to plaintiff's counsel requesting "a copy of the initial request/letter/correspondence to . . . RWJUH, forwarding to RWJUH authorization for the release of plaintiff's medical records[,] . . . any and all additional correspondence with, or record of correspondence with RWJUH evidencing efforts to obtain plaintiff's RWJUH medical chart [and] . . . a copy of the cover letter received from RWJUH which initially enclosed plaintiff's medical records." Parekh's counsel sent a follow-up letter on July 2, requesting a response within seven days to avoid the necessity of their filing a motion.

Patel's counsel propounded supplemental interrogatories on plaintiff asking when plaintiff's counsel first requested medical records to investigate the malpractice claim. Plaintiff responded on May 21, 2013, that she first consulted with counsel in June 2010, but did not answer the medical records question based on attorney-client privilege and/or work product privilege. Patel's counsel also conducted follow-up depositions of plaintiff and her daughters, during which plaintiff admitted that she had seen Patel numerous times, that she knew his first name, and that she had been given and had retained a card7 with his full name printed on it.

Patel and Parekh renewed their motions for summary judgment. Both defendants argued that plaintiff failed to demonstrate due diligence at various points in time before using fictitious names in her pleadings, after using fictitious names in her pleadings, before the statute of limitations had run, after discovering defendants' identities and before serving them, and in filing motions to amend complaints. Moreover, plaintiff had not provided discovery on the issue of due diligence as anticipated by the court. Plaintiff's counsel argued that plaintiff was entitled to the benefit of the fictitious name rule, R. 4:9-3, and she had done her due diligence by looking up a "Dr. Patel" at RWJUH, and in sending the original letter to A. Patel. In response, the judge noted that she had just found ten "Dr. Patel's" currently practicing at RWJUH, of which A. Patel was the only female. Counsel also argued plaintiff had exercised due diligence in waiting for a response to the letter to A. Patel, rather than suing immediately, although they waited until the limitations period had expired. Finally, counsel argued defendants had suffered no prejudice from the late filing, because they had been involved with the case for some time and had maintained their records.

The court granted the motions for summary judgment. The court noted that plaintiff had been aware of her injury, resulting from too high a dosage of Coumadin, as of February 2009. It determined that plaintiff knew Patel's name, address, and gender, and knew that he had prescribed her Coumadin. It found there was no evidence that Patel knew of a litigation against him before the statute of limitations had run, as A. Patel had not named him in her response; the amended complaint simply read "complaint"; and the mere fact that he continued to treat plaintiff could not have put him on notice of the suit. It determined that plaintiff had not satisfied the requirements of the fictitious pleading rule, and that she could not benefit from the relation back doctrine. The court found that defendants were prejudiced by virtue of being sued after the statute of limitations had run. This appeal followed.

"A ruling on summary judgment is reviewed de novo." Davis v. Brickman Landscaping, Ltd., 219 N.J. 395, 405 (2014). In our review of a grant or denial of summary judgment, we apply the same standard which governs the trial court under Rule 4:46-2(c). Murray v. Plainfield Rescue Squad, 210 N.J. 581, 584 (2012). Summary judgment is granted where the record demonstrates "no genuine issue as to any material fact challenged and . . . the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c); Henry v. Dep't of Human Servs., 204 N.J. 320, 329-30 (2010). "We therefore must first determine whether, giving the non-moving party the benefit of all reasonable inferences, the movant has demonstrated that there are no genuine issues of material fact." Walker v. Choudhary, 425 N.J. Super. 135, 142 (App. Div) certif. denied, 211 N.J. 274 (2012) (citation and internal quotation marks omitted). "We next analyze whether the motion judge's application of the law was correct." Ibid. (citation omitted). "In carrying out our review, however, we owe no deference to the interpretation of the motion judge on matters of law." Ibid. (citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)).

Plaintiff argues that the motion judge improperly determined she could not avail herself of the fictitious name rule. R. 4:26-4.8 We disagree.

Rule 4:26-4 provides that,

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.

As the Supreme Court has observed

When a plaintiff knows or has reason to know that he has a cause of action against an identifiable defendant and voluntarily sleeps on his rights so long as to permit the customary period of limitations to expire, the pertinent considerations of individual justice as well as the broader considerations of repose, coincide to bar his action. Where, however, the plaintiff does not know or have reason to know that he has a cause of action against an identifiable defendant until after the normal period of limitations has expired, the considerations of individual justice and the considerations of repose are in conflict and other factors may fairly be brought into play.

[Farrell v. Votator Div. of Chemetron Corp., 62 N.J. 111, 115 (1973).]

"R[ule] 4:26-4 is[, however,] irrelevant to the issue presented" in this case. Gallagher v. Burdette-Tomlin Med. Hosp., 318 N.J. Super. 485, 492 (App. Div. 1999), aff'd, 163 N.J. 38 (2000). "The fictitious defendant rule was promulgated to address the situation in which a plaintiff is aware of a cause of action against a defendant but does not know that defendant's identity." Ibid. The Rule's effect is to "render timely the complaint filed by a diligent plaintiff, who is aware of a cause of action against an identified defendant but does not know the defendant's name." Greczyn v. Colgate-Palmolive, 183 N.J. 5, 11 (2005).

To avail herself of the Rule, a plaintiff must 1) not know the identity of the fictitiously-named defendant; 2) describe the defendant with appropriate and sufficient detail to allow identification; 3) when amending the complaint, provide proof of how she learned the defendant's identity; and 4) act diligently in identifying the defendant. Farrell, supra, 62 N.J. at 119-22. "In determining whether a plaintiff has acted with due diligence in substituting the true name of a fictitiously identified defendant, a crucial factor is whether the defendant has been prejudiced by the delay in its identification as a potentially liable party and service of the amended complaint." Claypotch v. Heller, Inc., 360 N.J. Super. 472, 480 (App. Div. 2003) (citing Farrell, supra, 62 N.J. at 122-23).

Fictitious party names in a complaint will typically suspend the running of the statute of limitations where the plaintiff is not aware of the true identity of the defendant. Mears v. Sandoz Pharms. Inc., 300 N.J. Super. 622, 628 (App. Div. 1997). Thus, when the plaintiff discovers the party's name, "amendment of the complaint may relate back to 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); see R. 4:9-3 (allowing an amended complaint to relate back to the initial complaint). 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 (2015) (citing Matynska v. Fried, 175 N.J. 51, 53 (2002)). For example, a plaintiff cannot avail herself of fictitious name rule after expiration of the statute of limitations when a defendant doctor's name was easily discoverable in hospital records. See Matynska, supra, 175 N.J. at 53; see also Johnston v. Muhlenberg Regional Medical Ctr., 326 N.J. Super. 203, 207-08 (App. Div. 1999) (plaintiff could not use fictitious name rule because she waited four months after learning defendant's identity to move for leave to amend her complaint, another two-and-a-half months before filing the amended complaint, four more months to issue a summons, and still more time before perfecting service).

In this case, plaintiff knew the identity of Patel, her treating doctor, based on her numerous interactions with him, and as confirmed by the fact that she carried a card with his full name on it in her wallet. Further, she was aware that he allegedly caused her injuries. It is perplexing as to why communications between plaintiff, her daughter and counsel resulted in the wrong doctor being sued, and the correct doctor not being named until after the statute of limitations had run. Regardless, the fictitious party rule simply did not apply to naming Patel under these circumstances.

We reach the same conclusion as to Parekh. The exercise of minimal diligence should have disclosed his identity. His name is very clearly typewritten on the plaintiff's discharge records indicating a request for the prescription for Coumadin. Yet, Parekh was never named in the original complaint. It was only after Patel identified Parekh, not from his own knowledge, but simply reading from plaintiff's medical records, that plaintiff decided to add Parekh as a defendant. Parekh, not being known to plaintiff as a responsible party because of her own lack of diligence in reviewing her own records, was inexcusably not sued until after the statute of limitations ran.

Plaintiff herself could have discovered Parekh's name if she had accessed her own medical files. Also, plaintiff did not provide any evidence of her efforts to obtain her medical records. The fact that her attorney relied on his investigation of the hospital's roster of "Dr. Patels," rather than obtain the information that defendants' attorneys obtained through simply questioning plaintiff and her daughter at depositions, does not alter the result here. Plaintiff was not entitled to the benefit of the fictitious name rule.

Plaintiff also argues that the motion judge did not correctly apply the standard governing the "relation back" doctrine set forth in Rule 4:9-3, which provides,

Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading . . . . An amendment changing the party against whom a claim is asserted relates back if the foregoing provision is satisfied and, within the period provided by law for commencing the action against the party to be brought in by amendment, that party (1) has received such notice of the institution of the action that the party will not be prejudiced in maintaining a defense on the merits, and (2) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party to be brought in by amendment.

The Rule's "language, and the majority of cases applying it, address the typical setting in which a defendant has been misidentified in a prior pleading." Prime Accounting Dept. v. Twp. of Carney's Point, 212 N.J. 493, 513 (2013) (citations omitted). "The Rule has also been applied to an amendment re-identifying the party making the claim provided all of the conditions of the rule are satisfied." Ibid. (citation and internal quotation marks omitted). Its purpose is to accomplish "substantial justice on the merits by permitting a technical and otherwise fatal flaw to be corrected where such correction will not materially prejudice another party." Pressler & Verniero, supra, comment 4 on R. 4:9-3; c.f.R.1:12.

"The rule's scope allows for a plaintiff to add a defendant to an action for a claim that has since become time-barred so long as the new defendant had such notice, albeit informal, of the action prior to the running of the statute of limitations that he [or she] would not be prejudiced in maintaining his [or her] defense on the merits." Walker, supra, 425 N.J. Super. at 143 (citation and internal quotation marks omitted and alterations in original). "Additionally, the remaining aspect of Rule 4:9-3 to be considered is whether a defendant must have known or should have known within the statute of limitations period that but for the plaintiff's mistake in not naming her as a defendant, the action would have been brought against her personally." Ibid. (citation omitted).

When a plaintiff adds a new party after the statute of limitations has run, she will receive the benefit of the relation back doctrine if she proves that 1) "the claim asserted in the amended complaint arose" from the same conduct, transaction, or occurrence alleged in the original; 2) the new defendant had notice of the potential complaint prior to the expiration of the statute of limitations so as not to be prejudiced in maintaining his defense; and 3) "the new defendant knew or should have known that, but for the misidentification," the action would have been brought against him. Viviano v. CBS, Inc., 101 N.J. 538, 553 (1986) (citation omitted). Absent such proof, when a complaint is filed out of time, and the defendant had "no prior notice of plaintiff's cause of action, the . . . complaint cannot relate back to the date of filing of the original complaint" against an already named defendant. Giannakopoulos, supra, 438 N.J. Super. at 610.

In this case, the parties did not dispute that the claims in the amended complaint arose from the same "conduct, transaction, or occurrence" as the first. However, there was no evidence in the record that either Patel or Parekh had notice of the litigation prior to the expiration of the statute of limitations. Plaintiff argues that, because Patel attributed her internal bleeding to the high dosage of Coumadin, that should have put him on notice of the litigation. However, the trial court correctly determined that this was not enough. Compare Walker, supra, 425 N.J. Super. at 147 (reversing dismissal based on failure to establish entitlement to benefit of Rule 4:9-3 where "[g]iven the contradictory assertions as to when [the defendant] learned about the litigation, it appears that this issue cannot be resolved on affidavits or depositions" a hearing had to be held).

Plaintiff finally argues that defendants have not suffered any prejudice in being sued out of time. We again disagree.

"In determining whether a plaintiff has acted with due diligence in substituting the true name of a fictitiously identified defendant, a crucial factor is whether the defendant has been prejudiced by the delay in its identification as a potentially liable party and service of the amended complaint." Claypotch, supra, 360 N.J. Super. 472, 480 (App. Div. 2003) (citing Farrell, supra, 62 N.J. at 122-23). Also, in deciding whether the relation back doctrine should apply, "[t]he good faith and reasonableness of plaintiff['s ]conduct must be measured against a claim of prejudice to defendants." Aruta v. Keller, 134 N.J. Super. 522, 529-530 (App. Div. 1975) (citing Farrell, supra, 62 N.J. at 122).

In this case, plaintiff has failed to demonstrate her "good faith and reasonableness" in attempting to identify the correct Dr. Patel. As the motion judge noted several times during the October 11 hearing, there were ten "Dr. Patels" working at RWJUH, of which A. Patel was the only female. The judge had ascertained this by simply visiting the hospital's website. Moreover, plaintiff did not say when she had obtained her medical records, and there were significant delays before she amended her complaints and served defendants. For their part, defendants could not have reasonably anticipated being sued prior to receiving the amended complaints. Thus, defendants have been prejudiced as a result of being sued out of time.

Affirmed.

1 His name also appears throughout various records as plaintiff's doctor.

2 Coumadin is the generic for Warfarin. It is commonly known as a blood thinner.

3 Plaintiff suffered a stroke in April 2012 and thereafter required a live-in aide.

4 A small issue that was not addressed in the record: the first two letters were addressed to "Archana Patel M.D.," at North Brunswick Cardiology Group, located in East Brunswick. The re-addressed August 3, 2010 letter was addressed to Dr. Archana at "University Cardiology Group" located in New Brunswick. The correct defendant, Dr. Pratik Patel, actually works for New Brunswick Cardiology Group, who's office moved from Somerset to East Brunswick.

5 The judge noted that this issue was further complicated by the fact that plaintiff may have had cognitive difficulties at the time that she retained counsel. The judge wanted to know whether plaintiff's daughters had power of attorney to retain counsel on her behalf, and speak for her which would have played a role in counsel's identifying the wrong Dr. Patel.

6 The court also noted, based on defense counsel's arguments, that plaintiff should have set forth what diligent efforts were made to obtain Parekh's name, before submitting the second amended complaint.

7 The card indicated the location of her stents.

8 In truth, the fictitious name rule in this case would only apply to defendant Parekh, as the original complaint named both A. Patel and John Does 1-10. If plaintiff's counsel was under the assumption that they had named the correct Dr. Patel, then their intention was never to satisfy the fictitious name rule requirements with respect to the doctor only to as-yet unknown defendants.