MARY ROHRICH v. PETER BENOTTI, M.D., et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2914-04T32914-04T3

MARY ROHRICH AS ADMINISTRATOR AD

PROSEQUENDUM FOR THE ESTATE OF JENNIFER

ROHRICH,

Plaintiff-Appellant,

v.

PETER BENOTTI, M.D.,

Defendants-Respondents

and

VALLEY HOSPITAL,

Defendant.

________________________________________________________________

 

Argued November 15, 2005 - Decided

Before Judges Coburn, Lisa and S.L. Reisner.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, L-6100-03.

Richard G. Potter argued the cause for appellant.

Beth A. Hardy argued the cause for respondent Peter Benotti, M.D. (Farkas & Donohue, attorneys; Ms. Hardy, of counsel; Jennifer L. Salfi, on the brief).

Andrew L. Rochester argued the cause for respondent Karen Portale, M.D. (McDonough, Korn & Eichhorn, attorneys; R. Scott Eichhorn, of counsel and on the brief; Mr. Rochester, on the brief).

PER CURIAM

This is an appeal from the dismissal of the medical malpractice claim of Jennifer Rohrich (plaintiff) and from several orders in that action. In particular, plaintiff seeks our review of an order granting summary judgment dismissing her claim with respect to defendant, Peter Benotti, M.D., and of orders denying plaintiff's motions to extend the discovery period, extend the time to provide an expert report as to Benotti, and to substitute for a fictitiously-named defendant, Karen Portale, M.D. We find plaintiff's appellate arguments unpersuasive and affirm all of the orders under review.

On August 27, 2001, Benotti performed gastric bypass surgery on plaintiff. Plaintiff later suffered complications from the surgery and presented at the Valley Hospital emergency room on November 14, 2001, where she was treated by Benotti and Portale.

On August 21, 2003, plaintiff filed a complaint against Benotti, Valley Hospital and fictitious parties John Doe, M.D. and Ronald Roe, M.D. (1-10). The complaint charged Benotti with malpractice for improperly performing the surgery, for performing an unnecessary and contraindicated surgical procedure, and for discharging plaintiff after the surgery while suffering from a bacterial infection. The complaint also charged malpractice by Valley Hospital's staff for rendering improper treatment when plaintiff presented at the emergency room on November 14, 2001. Although not expressly articulated in the complaint, it is clear that plaintiff's claim against Benotti included alleged malpractice by him on November 14, 2001. The complaint also charged that on November 14, 2001, the fictitious John Doe, M.D. "deviated from the accepted standard of care by improperly diagnosing and treating the plaintiff."

On January 9, 2004, plaintiff filed an affidavit of merit by Dean Dobkin, M.D., a board certified emergency medicine physician, expressing "a reasonable probability that the care, skill or knowledge exercised or exhibited in the work of Peter Benotti, M.D., which is the subject matter of the above-captioned matter, fell outside the acceptable professional standard of care." By September 2004, more than one year after the complaint was filed, plaintiff had produced no expert report, although one was demanded through discovery. Benotti filed a motion to compel plaintiff's expert report. Without opposition, an order was entered on September 24, 2004, requiring plaintiff to produce an expert report within forty-five days, namely by November 8, 2004.

On October 6, 2004, plaintiff filed a motion to extend the time to serve an expert report, to extend the discovery period, and to allow amendment of the complaint to substitute Portale for the fictitious defendant, John Doe, M.D. Plaintiff contended that until she received Benotti's interrogatory answers in September 2004, she was unaware of the potential liability of a physician other than Benotti for services rendered in the emergency room in particular. The interrogatory inquired whether Benotti claimed that the alleged occurrence resulted from plaintiff's own lack of care. The answer included the following:

On November 14, 2001, she called my office with complaints of fever, joint pain and chills. I referred her to the emergency room where she was evaluated. The emergency room physician spoke with me later that evening and felt she had a viral syndrome and was feeling better. She was released with instructions to follow up with me if symptoms were not better or worse. She did not contact me or anyone else for nearly 48 hours despite feeling much worse. She was admitted November 16, 2001 to Medicine with a diagnosis of Toxic Shock Syndrome. She did not require further surgery.

Judge Mecca determined that plaintiff knew or, with the exercise of reasonable diligence, should have known the identity of Portale much sooner. Plaintiff knew she was being evaluated and treated in the emergency room by another doctor in addition to Benotti. Portale's name, as well as Benotti's, appeared in the emergency room records, and, even if the name could not be clearly deciphered because of the handwriting or for any other reason, a simple inquiry to the hospital would have revealed Portale's name. The judge therefore found the fictitious name practice rule, R. 4:26-4, inapplicable and denied the motion to substitute Portale as a defendant.

Plaintiff's asserted reason for needing more time to obtain an expert report with respect to Benotti was the need to name Portale and conduct further discovery. Thus, plaintiff also sought to extend the discovery period. Judge Mecca rejected those arguments and denied those motions. Benotti then moved for summary judgment because, without an expert report, plaintiff could not provide proof of the applicable standard of care and deviation from that standard. Plaintiff moved for reconsideration of the denial of her motions. On December 17, 2004, Judge Mecca heard oral argument, after which he entered orders denying plaintiff's reconsideration motion and granting Benotti's summary judgment motion. This appeal followed.

Plaintiff argues on appeal that application of the discovery rule should have allowed for the tolling of the statute of limitations with respect to Portale. The applicable limitation period for plaintiff's claim for medical malpractice was "2 years next after the cause of any such action shall have accrued." N.J.S.A. 2A:14-2a. The discovery rule provides that a cause of action will not accrue "until the injured party discovers, or by an exercise of reasonable diligence and intelligence should have discovered that he may have a basis for an actionable claim." Lopez v. Swyer, 62 N.J. 267, 272 (1973). Plaintiffs seeking application of the discovery rule can be "divided into two classes: those who do not know that they have been injured and those who know they have suffered an injury but do not know that it is attributable to the fault of another." Martinez v. Cooper Hosp., 163 N.J. 45, 53 (2000). A cause of action accrues when a plaintiff both knows he or she has suffered an injury and knows the injury was caused by the fault of another. Ibid. In the case before us, plaintiff both knew she was injured and knew the injury was caused by the fault of another.

Plaintiff relies heavily upon Guichardo v. Rubinfeld, 177 N.J. 45 (2003), Mancuso v. Neckles, 163 N.J. 26 (2000), and Gallagher v. Burdette-Tomlin Mem'l Hosp., 163 N.J. 38 (2000). Plaintiff contends that, like the plaintiffs in those cases, she had no way of knowing of Portale's potential negligence until she received Benotti's interrogatory answer. We do not agree. In those cases, the plaintiffs relied on experts who concluded that a third party was not at fault, only to be later informed by a different expert that a third party was responsible. Guichardo, supra, 177 N.J. at 50, 55. Under those circumstances, the Court allowed application of the discovery rule, but cautioned that its ruling would not provide a plaintiff with "an indefinite period in which to search for an expert willing to support a preferred theory of liability . . . . [P]laintiff reasonably relied on expert advice indicating an absence of fault on the part of a particular care provider." Id. at 55.

The principle enunciated in those cases does not support plaintiff's claim for relief in this case. Plaintiff plainly knew of a possible third-party physician that might be responsible, in addition to Benotti, for improper treatment at the emergency room. She expressly made the allegation in her complaint. Further, in the certification by plaintiff's counsel in support of the motion to substitute Portale, extend the time for providing an expert report and extend the discovery period, counsel acknowledged that he was aware that an additional physician treated his client in the emergency room but that he "could not read the name" in the hospital record. In his letter brief in support of the motion, counsel stated that "[t]he signature on the emergency room records was not legible enough for the plaintiff to read to identify Dr. Portale, therefore, the plaintiff was forced to use the fictitious name in her pleadings."

In her deposition, plaintiff clearly demonstrated that she knew she was seen and evaluated by a female physician in the emergency room before speaking with Benotti. She stated:

I told them, meaning the doctor in charge, because Dr. Benotti said he would meet me there, he would check to see if I was in the emergency room on his rounds, so that's what happened. I told the emergency room doctor what happened.

Then Dr. Benotti showed up and I reiterated to him what was going on. He felt my belly to see if there's any hard spots he said he was looking for, and they had pulled the dressing out of my wound to look at the liquid to see if there was any foul smell in there, and the color of the debride and the gauze, and from what both Dr. Benotti and the emergency room doctor told me it was okay, it didn't smell foul.

Plaintiff further described her interaction with the female emergency room physician:

Q. Then you got to the hospital?

A. Correct.

Q. I believe you spoke to the emergency room doctor first?

A. Yes.

Q. What did you tell the emergency room doctor?

A. I told her of all of my past history.

Q. Regarding the gastric bypass and the peritonitis?

A. Yes.

Q. What else did you tell her about your condition on that day?

A. I told her that I hadn't been urinating, that I had been yawning really weird, that I was feeling fatigued, that I had a mild temperature at home, and I was overall just not eating anymore. I was unable to get the nutrients in.

Q. What did that emergency room doctor tell you?

A. She said I was dehydrated, and she then progressed to order the I.V.

Q. Okay. You got an I.V. at that time?

A. Yes.

Q. Then Dr. Benotti comes and sees you for the first time on that day?

A. Correct.

. . . .

[Dr. Benotti] stood at the door of my room and was inquiring to the doctor outside of my room, and I didn't hear what he said to the doctor, but then he began to talk to me . . . .

He also stated to me when I asked him and requested a blood test that he wouldn't order the blood test, because he said he was not in charge. . . .

Q. Did he indicate to you that actually it was the emergency room physician who was in charge at that point?

A. He said that she was in charge, but I said to him, well, then why are you seeing me if she is the one who is supposed to be taking care of me? He walked out the door and never responded.

. . . .

Q. Did you tell Dr. Benotti, or the emergency room doctor, or Dr. Sotsky for that matter, that your roommate had the flu around that time?

A. Yes, I did. I told the emergency room doctor. I told Dr. Benotti, and I told Dr. Sotsky.

Shortly thereafter the emergency room doctor she came in, and she must have had a discussion with Dr. Benotti and Dr. Sotsky from what I gathered, and she said that most likely I had the flu. I asked her for the second time at that time if I could have a blood test, and she said no, your insurance won't pay for things that aren't necessary.

. . . .

Q. Did you bring the bumps to the attention of the emergency room physician?

A. Yes.

Q. What did the emergency room physician say at that point?

A. She looked at them and didn't say anything.

Q. Do you know the name of that emergency room physician?

A. No. I know it was a woman.

It is plain to us that plaintiff was aware prior to the filing of her complaint that she had suffered an injury that she believed was caused by improper medical treatment in the emergency room on November 14, 2001, that she knew she was treated by Benotti and another physician, a female, and she accused both of them of malpractice in her complaint. Thus, she does not fit within the general rule for application of the discovery rule. Nor does she fit within the Guichardo-Mancuso-Gallagher doctrine because there is nothing in this record to suggest plaintiff was informed by Dobkin or any other medical expert that Portale was not responsible for her alleged injury.

We are also unpersuaded by plaintiff's argument that the trial judge erred in denying her motion to substitute Portale as a defendant under the fictitious name practice rule. "The rule addresses the situation in which a plaintiff is aware of a cause of action against a defendant, but does not know that defendant's identity." Pressler, Current N.J. Court Rules, comment on R. 4:26-4 (2006). "[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." Ibid. We have held that where a plaintiff had access to hospital records in which the physician's name appeared, the plaintiff was barred from substituting the physician's name for a fictitiously-named defendant because the plaintiff "had an obligation to investigate all potentially responsible parties in a timely manner but did not do so. In short, [the plaintiff] failed to cross the due diligence threshold, and thus the lower courts properly denied her the right to amend the complaint." Matynska v. Fried, 175 N.J. 51, 53 (2002).

In her fictitious name practice argument, plaintiff relies heavily upon the lack of prejudice to Portale by the delay in joining her in the action. We find this argument unpersuasive. Indeed, prejudice or lack of prejudice is a consideration in this analysis, but it is certainly not dispositive. As explained in Matynska, there is a threshold requirement of due diligence that a plaintiff must satisfy. Ibid. There was a complete lack of diligence here. Portale's name was easily ascertainable prior to the filing of the complaint. The trial judge did not err in denying the motion to allow the substitution.

We are also satisfied that the trial judge did not mistakenly exercise his discretion in refusing to extend the time for plaintiff to file an expert report with regard to Benotti. Extension of discovery may be granted for good cause shown. R. 4:24-1(c). Plaintiff contended before the trial court that until Portale was substituted as a defendant and further discovery was conducted she was not in a position to obtain an expert report regarding the asserted negligence by Benotti. However, nine months before entry of the order compelling an expert report with respect to Benotti, plaintiff filed an affidavit of merit from his emergency care expert attesting to Benotti's negligence. The claim against Benotti is independent of the asserted claim against Portale. Plaintiff fails to explain why she was unable to produce a report from Dobkin or any other medical expert explaining how Benotti deviated from the applicable standard of care. Plaintiff did not demonstrate good cause to grant her more time to furnish a report.

Likewise, we find no mistaken exercise in discretion in the denial of plaintiff's request for an extension of the discovery period. Plaintiff failed to demonstrate an exercise of due diligence in attempting to complete discovery in a timely manner, why discovery was not completed in a timely manner, and a legitimate need for additional time for discovery.

 
Finally, the judge properly granted Benotti's summary judgment motion. In the absence of an expert report, plaintiff was unable to establish a prima facie case of medical malpractice against Benotti. Adamski v. Moss, 271 N.J. Super. 513, 518 (App. Div. 1994).

Affirmed.

The original plaintiff, Jennifer Rohrich, died while this litigation was pending in the trial court. During the pendency of the appeal, we granted plaintiff's motion to substitute Mary Rohrich as Administrator ad Prosequendum for the Estate of Jennifer Rohrich as plaintiff-appellant.

The notice of appeal refers only to denial of a reconsideration motion. However, plaintiff's Appellate Division Civil Case Information Statement identifies the underlying substantive orders as those being appealed. The substantive orders have been briefed by all parties. In the interest of justice, we will put aside any procedural irregularities and deem the appeal to be properly taken from the substantive orders.

The complaint contained counts seeking recovery from Valley Hospital and counts based upon theories of consumer fraud and common law fraud. Those counts were also dismissed, but the issues they raised are not germane to the issues on appeal. Thus, we will not discuss them in this opinion.

(continued)

(continued)

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A-2914-04T3

December 12, 2005