TONYA LYONS v. ROBERT F. MOHR, M.D.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

TONYA LYONS,

Plaintiff-Appellant,

v.

ROBERT F. MOHR, M.D.;

RAFAEL FRANCISCO UNDA RIVERA,

M.D.; and LIFELINE MEDICAL

ASSOCIATES,

Defendants,

and

DANIEL H. TOBIAS, M.D.,

Defendant-Respondent.

________________________________

November 27, 2013

 

Argued November 13, 2013 - Decided

 

Before Judges Sabatino and Rothstadt.

 

On appeal from an interlocutory order of the Superior Court of New Jersey, Law Division, Morris County, Docket No. L-0676-11.

 

Vivian Demas argued the cause for appellant.

 

Katelyn E. Cutinello argued the cause for respondent (Bubb, Grogan & Cocca, LLP, attorneys; Michael S. Bubb, of counsel and on the brief; Ms. Cutinello, on the brief).

PER CURIAM

In this medical malpractice case arising out of complications from a hysterectomy, we review the trial court's interlocutory order rejecting plaintiff's attempt to amend her complaint to add Daniel H. Tobias, M.D., as an additional defendant.

Even though Dr. Tobias was one of three surgeons who participated in the operation, his name and his role in the surgery were improperly omitted from the operative report, in violation of N.J.A.C. 13:35-6.5. A single entry in a separate nurse's record listed Dr. Tobias as an assistant, but it did not disclose his professional title, nor describe the nature of his involvement. Moreover, the interrogatory answers of the two other participating physicians did not mention Dr. Tobias or give any indication that, in fact, a third surgeon had taken part in the operation.

The trial court ultimately rejected plaintiff's amendment adding Dr. Tobias because (1) the two-year statute of limitations, N.J.S.A. 2A:14-2(a), had expired, and (2) plaintiff had not demonstrated at an evidentiary hearing, pursuant to Lopez v. Swyer, 62 N.J. 267 (1973), that principles of equitable tolling justified an extension of the two-year deadline. In essence, the trial court found that plaintiff and her counsel had failed to act with due diligence by not determining sooner that Dr. Tobias could have been responsible for her injury.

We reverse the trial court's order because, under the distinctive circumstances of this case, principles of equitable tolling warrant the inclusion of Dr. Tobias as a co-defendant. Among other things, those distinctive circumstances include faulty medical recordkeeping; the lead surgeon's failure to disclose the third surgeon's involvement to the patient when she consulted him about post-surgical complications; and incomplete, potentially misleading interrogatory responses furnished by the co-defendants in discovery.

Furthermore, we reject, as did the trial court, Dr. Tobias's separate argument that the claims against him are barred because plaintiff's original complaint did not provisionally name a fictitious "John Doe" physician as an additional defendant.

I.

We derive the following factual and procedural background from the existing record, mindful that the case has yet to be tried and that certain facts remain disputed.

A.

Plaintiff Tonya Lyons underwent a hysterectomy on September 8, 2009 at Morristown Memorial Hospital. The two-page operative report, composed that same day, described the procedure. It listed defendant Robert F. Mohr, M.D., as the "PRIMARY SURGEON" for the operation. The operative report also listed defendant Rafael Francisco Unda-Rivera1, M.D., a surgical resident, as Dr. Mohr's "ASSISTANT" for the surgery. No other physician or caregiver names, including that of Dr. Tobias, were mentioned in the operative report.

Dr. Unda-Rivera dictated the operative report as part of his assisting responsibilities. Dr. Mohr, whose name appears on both the first and second page, approved the report's contents after it was typed.

The operative report's twenty-line description of the procedure included a notation that "[a] small, 1-cm incision in the vaginal wall was repaired with 2-0 Vicryl." However, the report failed to identify which physician had completed the vaginal wall repair. As plaintiff ultimately learned during the course of the lawsuit, Dr. Tobias was the doctor who performed that repair, despite the absence of his name from the operative report.

Plaintiff suffered complications after she was discharged from the hospital. She had a follow-up visit with Dr. Mohr on October 2, 2009, primarily because she was concerned about excessive vaginal leakage she had experienced since the hysterectomy. At her deposition, she described the problem as "very continuous. The flow, heaviness would increase or decrease."

When plaintiff asked Dr. Mohr what might be causing the leakage, he conducted an examination. According to plaintiff, he concluded that she "may be experiencing a defect. There's a tear near [her] cervix where the leakage may be coming from. That is probably something that [she] was born with. But it's something that I can repair in my office." Plaintiff testified that this was the first time that she had heard about a possible tear in or near her cervix. Although Dr. Mohr offered to repair the tear in his office, she declined his offer,

[b]ecause I was very uncomfortable with this was going on since my initial surgery and I complained about this problem repeatedly. The idea of me wearing diapers every day indicated to me that something was seriously wrong. And that was the first time I had heard as many times as I have been examined by my physician, I had never heard that there was a tear near my cervix. So the answer wasn't suitable for me, and I didn't feel comfortable with it. That's why I went back to my original OB/GYN to look at me.

According to plaintiff, Dr. Mohr did not inform her after the surgery that he had requested the assistance of another surgeon in the operating room, in addition to Dr. Unda-Rivera. In particular, Dr. Mohr did not tell her that Dr. Tobias had been the surgeon who repaired the vaginal wall, or, for that matter, that Dr. Tobias had any involvement in her operation. Plaintiff never met Dr. Tobias, nor did she ever speak with him. She did not receive a bill from him.

Plaintiff did sign a form before her surgery that acknowledged, in generic fashion, that she "consent[ed] to the performance of [the hysterectomy] . . . by [her] physician . . . and/or such assistants as may be selected by him/her." The consent form did not refer to Dr. Tobias by name.

As her post-operative complications persisted, plaintiff was referred to a urologist, Dr. Berger,2in November or December of 2009. Dr. Berger conducted a dye test to determine the source of plaintiff's vaginal leakage. Ultimately, Dr. Berger concluded that the leakage was due to a "missing part of [plaintiff's] ureter" and that "it could have been an injury as a result of [her] hysterectomy." Dr. Berger thereafter performed a corrective procedure on plaintiff's ureter in January 2010.

Plaintiff initially consulted with an attorney ("the first attorney") in or about December 2009. As plaintiff explained at the Lopezhearing, she had sought counsel because:

I felt that there was . . . something done wrong during my surgery and I didn't feel that it was taken care of, handled properly. . . . I actually tried to seek help but I didn't get the help from Dr. Mohr that I needed in a timely manner. I just wanted answers, so that's why I went to [my attorney].

 

The first attorney requested a copy of plaintiff's pertinent medical records. He received them on January 14, 2010. The supplied records included the operative report and a six-page "perioperative record" prepared by a nurse.3

The perioperative record identified Dr. Mohr as plaintiff's "PRIMARY SURGEON" and Dr. Unda-Rivera as an "ASSISTANT." In a single entry, the record also listed "TOBIAS, DANIEL H" as another "ASSISTANT" involved in the procedure. Although the document indicates the Tobias went into the operating room at "16:46," he is the only individual, out of the seven persons listed in this portion of the record, for whom there is no "out" time provided.

Tobias's presence was not mentioned anywhere else in the perioperative record. Nor did the sole entry that referred to him specify whether Tobias was an M.D., D.O., R.N., or some other type of medical professional.

Dr. Unda-Rivera is listed in an entry on the same page of the perioperative record as the entry for Tobias. He is similarly designated as "ASSISTANT." However, his entry includes both a time in and a time out, and, unlike Tobias, specifically indicates that Unda-Rivera is an M.D.

Plaintiff could not recall at the Lopezhearing whether her first attorney had specifically identified any persons that he felt she could assert a cause of action against. In January or early February of 2010, she was referred to her current lawyer ("the second attorney") because her first attorney had discovered a conflict of interest. Plaintiff did not recall going over her medical records with her new counsel. She did remember that she had signed an authorization so that her medical records could be released to the second attorney. Plaintiff acknowledged that she herself did not review the medical records, other than the consent form that she had been asked to sign before the operation.

Richard L. Luciani, M.D., a specialist in obstetrics and gynecology, signed an affidavit of merit on behalf of plaintiff on September 29, 2010. In his affidavit, Dr. Luciani certified that, based upon his review of plaintiff's medical records, "there is a reasonable probability that the care, skill or knowledge exercised or exhibited in the treatment of [plaintiff] by Robert F Mohr, M.D., Rafael Francisco Unda Rivera, M.D., Lifeline Medical Associates, as well as XYZ Corporation . . . fell outside professional treatment standards." Dr. Luciani did not mention Dr. Tobias, or any physician other than Dr. Mohr and Dr. Unda-Rivera.

Through the efforts of her second attorney, plaintiff filed this civil action in the Law Division on March 7, 2011, a date well within two years of her September 2009 surgery. In her original complaint, plaintiff named as defendants Dr. Mohr, Dr. Unda-Rivera, Lifeline Medical Associates4("Lifeline"), and XYZ Corporations I-V (fictitious entities associated with the named individuals). She did not sue the attending nurses. The complaint alleged medical malpractice, contending that the named defendants had "fail[ed] to conform to the governing standards of care," and did not adhere "to the requisite professional skill, care and judgment recognized as standards in the . . . profession."

Dr. Mohr and Lifeline filed a joint answer on April 11, 2011, denying liability and interposing various affirmative defenses. The answer was accompanied by their counsel's certification, pursuant to Rule4:5-1, that "to the best of [his] knowledge at this time there are . . . no other parties who should be joined in this action." That same day, Dr. Unda-Rivera also submitted an answer, in which his own attorney certified pursuant to Rule4:5-1 that "[i]t is not anticipated at this time that there is any other party who should be joined in this action."

Notably, the responses to plaintiff's interrogatories that Dr. Mohr and Dr. Unda-Rivera each provided in the spring of 2011 did not mention Dr. Tobias.5 In his narrative description of the surgery responding to Form Interrogatory #2, Dr. Mohr referred only by name to himself and to Dr. Unda-Rivera:

[T]his defendant performed a laparoscopic hysterectomy for fibroids and enlarged uterus on September 9, 2009. This procedure was performed with Dr. Rafael Rivera, defendant's 3GY resident, assisting. On or about September 14, 2009, this defendant received a phone call from plaintiff's partner, Darryl Atkin, that plaintiff was experiencing gas and bloating. This defendant advised Mr. Atkin to have plaintiff take over the counter gas medication and to call him back if symptoms progressed. Later in the day, Mr. Atkin called this defendant again advising plaintiff had nausea and vomiting. Defendant told Mr. Atkin to present with plaintiff to Morristown Memorial Hospital emergency room, where this defendant met plaintiff upon arrival. Plaintiff was diagnosed with and treated for a bowel obstruction by Dr. Carey Dolgin. (See medical records of Dr. Dolgin already in possession of plaintiff) This defendant next saw plaintiff on October 6, 2009 when a CT scan revealed left iliac thrombosis. Plaintiff was started on Coumadin/Heparin treatment. (See medical records of Allied Surgical Group already in possession of plaintiff) This defendant next saw plaintiff on October 23, 2009 for DVT treatment check-up and again on November 20, 2009 for DVT check-up. (See medical records of Dr. Mohr, already in possession of plaintiff) This was the last time this defendant treated plaintiff, as plaintiff broke off contact with this defendant and would no longer return phone calls. By way of further explanation and not limitation, please see records of Dr. Robert Mohr. As noted above, the defendant will make himself available at a deposition, if requested, for further elaboration.

 

[(Emphasis added).]

Dr. Mohr's answers to Form Interrogatory #4 (seeking the identities of "all persons who have knowledge of any relevant facts") and Form Interrogatory #8 (seeking the names of "all eye witnesses") likewise did not mention Dr. Tobias. Instead, as his response to Form Interrogatory #4 illustrates, Dr. Mohr only referred, without specificity, to plaintiff's medical records and to other possible extrinsic sources of information:

All parties; any person named in answers to interrogatories and/or medical records exchanged in this lawsuit; any person named or mentioned at deposition held in this lawsuit; all of Ms. Lyons' treating physicians; all other healthcare providers who may have cared for Ms. Lyons; any and all other persons who may become identified upon further investigation, completion of discovery and through the time of trial; all custodians of medical records.

 

Dr. Unda-Rivera's interrogatory responses were even less informative, declining to provide any narrative description of the surgery or the specific names of any other physicians involved. His answers, in essence, simply referred plaintiff to her medical records and to other documents or discovery items that might exist. For example, Dr. Unda-Rivera's response to Interrogatory #4, which sought the identities of persons with knowledge, referred generically to categories such as "all treating and examining physicians" and to "all medical care personnel involved in the care and treatment of plaintiff."

These interrogatory answers did not cause plaintiff or her counsel to be alerted to Dr. Tobias's involvement. As plaintiff's second attorney attested, the answers "offered no information concerning any other surgical practitioners being in any way involved in the subject surgery nor any indication that a surgical consultant was called, intra-operatively, by either Dr. Mohr or Dr. Unda-Rivera."

As discovery continued, Dr. Mohr was deposed on February 14, 2012. At that session, Dr. Mohr testified that "there was a small rent in [plaintiff's] vaginal wall" that was visible to him during the surgery. Dr. Mohr revealed that he had asked Dr. Tobias "to come in with me" so that Dr. Tobias could intra-operatively sew up the rent. According to Dr. Mohr, he did so because Dr. Tobias was "very skilled in laparoscopy."

Dr. Mohr stated that he reviewed and accepted the operative report dictated by Dr. Unda-Rivera, despite the fact that Dr. Tobias's name was not mentioned in that document. According to Dr. Mohr, he signed off on the report without that disclosure, because "it was in the nurse's report that he [Dr. Tobias] came in as an assistant, so I didn't think it was necessary to change it. So I thought this [operative report] was an adequate, although brief, summary."

Within a few weeks of these initial revelations from Dr. Mohr about Dr. Tobias's involvement, plaintiff's counsel served Dr. Tobias with a subpoena and deposition notice, seeking his testimony on March 14, 2012. The deposition was adjourned by Dr. Tobias's attorney due to a scheduling conflict, but he was eventually deposed on June 7, 2012.

Dr. Tobias testified at his deposition that Dr. Mohr had requested his presence in the operating room during plaintiff's hysterectomy to "technically perform a function and assist with the case." Dr. Tobias admitted that he did not make any notes about the work he performed. In his view, such notations were unnecessary because "the convention is that if you're an assistant there's really no dictation that's usually made; it's usually done by the primary surgeon."

When asked by plaintiff's counsel whether he was familiar with a regulation in the New Jersey Administrative Code6"that govern[s] the requirement of physicians to make contemporaneous notes concerning their treatment of patients," Dr. Tobias stated that he was not. Although he could not "say to a reasonable degree of medical certainty" that the injury to plaintiff's ureter was within the area that Dr. Mohr had operated on, he testified that it was "[p]otentially" a possibility because the injury "was within the general area" where surgery had been conducted. However, Dr. Tobias noted that "not having been there for the [earlier portion of the] surgery and having not seen exactly where the stenosis, or narrowing, was of the ureter, it's hard to know."

Dr. Tobias confirmed that he did not treat plaintiff in his office, nor did he bill her for the assistance he gave Dr. Mohr during the operation. Prior to receiving the deposition subpoena, Dr. Tobias was aware in or about the spring of 2011 that a malpractice complaint had been filed concerning plaintiff's surgery. In fact, Dr. Tobias acknowledged that he knew about the pending lawsuit "many months before" he personally received any communications regarding the case. Although he did not then discuss the details of the case with Dr. Mohr, Dr. Tobias stated that he "knew that [he himself] was involved with the [plaintiff's] case, but there was no discussion [with Dr. Mohr] about [him] being named in the Complaint or part of the Complaint."7

Upon learning these facts about Dr. Tobias's role in the operation, plaintiff's counsel arranged to have the case reviewed by another expert, Howard D. Homesley, M.D., an oncological gynecology specialist. On or about September 15, 2012, Dr. Homesley signed an affidavit of merit stating that "the care, skill or knowledge exercised or exhibited in the treatment of [plaintiff] by Daniel H. Tobias, M.D. . . . fell outside professional treatment standards."8

B.

About ten days after obtaining the affidavit of merit confirming potential fault on the part of Dr. Tobias, plaintiff's counsel filed, on September 25, 2012, a motion for leave to amend the complaint to name Dr. Tobias and Morristown Memorial Hospital/Atlantic Health ("the hospital") as party defendants. Plaintiff included the hospital in her proposed amended pleading upon a belief that Dr. Tobias was either the hospital's agent or employee.

Dr. Tobias and the hospital jointly opposed plaintiff's motion for leave to amend, arguing that the claims against them were barred because the two-year statute of limitations had expired. Dr. Mohr and Dr. Unda-Rivera took no position on the motion.

In her certification in support of the motion, plaintiff's second attorney explained that the initial complaint had been filed "in reliance upon the operative report in the Morristown Memorial Hospital Chart which names only [Dr. Mohr and Dr. Unda- Rivera] as operating upon [plaintiff]." Although counsel acknowledged that "a single entry . . . in a nursing peri-operative record" did list Dr. Tobias s name, she had not initially considered that entry significant, in light of the fact that the operative report had not disclosed that Dr. Tobias, or any third surgeon, had participated in the surgery.

In plaintiff s own separate certification, she stated that the first knowledge she had of Dr. Tobias's potential involvement in her surgery came from her conversation with her attorney after Dr. Mohr s deposition in February 2012. Plaintiff stressed that Dr. Tobias had not invoiced her, and that Dr. Mohr did not disclose to her, even after her post-surgical complications, that Dr. Tobias had operated on her vaginal tear. In addition, plaintiff stated that Dr. Mohr had not even told her that any injury had occurred during the procedure.

A Law Division judge, who has since retired, denied plaintiff's motion to add the hospital as a defendant.9 That judge granted, however, plaintiff's motion to amend the complaint to include Dr. Tobias, but without prejudice. In his oral decision, the judge suggested that plaintiff could "promptly notify the court and . . . seek a Lopez[h]earing" to determine whether it was appropriate for plaintiff to amend her complaint after the statute of limitations on the underlying medical malpractice action had expired. Plaintiff then requested such a hearing.

The ensuing Lopezhearing was presided over by a successor judge on the case on two separate dates in January and February 2013. In addition to considering the certifications from plaintiff and her counsel, the judge heard testimony from plaintiff herself. No defense witnesses were called.

Plaintiff's counsel argued at the Lopezhearing that she and her client lacked sufficient reason to be aware of Dr. Tobias's role in the hysterectomy until Dr. Mohr's deposition in 2012 revealed Dr. Tobias's identity and the nature of his involvement. Plaintiff stressed that the operative report was deficient and in non-compliance with state regulations, because it failed to name Dr. Tobias or indicate that any third surgeon was involved. She further argued that the single entry listing Dr. Tobias in the nurse's record was insufficient to put her on notice as to his role in the surgery. Plaintiff also argued that the named defendants' interrogatory answers and their Rule4:5-1 certifications left a misimpression that no other physicians had taken part in her surgery.

Dr. Tobias's counsel countered that the nurse's record containing his first and last name, which had been in opposing counsel's possession since January 2010, provided ample notice to require plaintiff or her lawyers to investigate his role in the surgery before the two-year statute of limitations ran. His attorney argued that plaintiff and her counsel had failed to act with due diligence, and therefore her belated attempt to add him to her lawsuit should be rebuffed. As a separate point, Dr. Tobias's counsel argued that plaintiff's failure to name a fictitious-defendant physician in her initial complaint, as allowed by Rule4:26-4, negated her ability to amend the pleading after the two-year limitations period had expired.

Meanwhile, a stipulation of dismissal with prejudice was filed as to Dr. Unda-Rivera on January 25, 2013.10

 

C.

On February 13, 2013, the successor motion judge issued an oral decision dismissing Dr. Tobias as a defendant because plaintiff had not justified her failure to sue him within the two-year statute of limitations. The judge initially observed that by December 2009 plaintiff "knew or at least should have known, that she did have a tear of the . . . ureter . . . and that there was a good likelihood that maybe not a likelihood, but there was certainly a possibility that it did occur during the course of the subject surgery." Hence, the judge found that the two-year statute began to run by December 2009, thereby requiring suit by December 2011 unless principles of equitable tolling authorized an extension of that deadline.

The judge recognized that the operative report did not mention Dr. Tobias or his role, or, for that matter, the name of the attending anesthesiologist. Even so, the judge found significant that Dr. Tobias was listed in the nurse's record as an "assistant," and that plaintiff and her lawyers had not conducted further investigation into his status or role until taking Dr. Mohr's deposition in 2012.

The judge acknowledged that "certainly when the complaint was filed, there was no indication that there was some unidentifiable physician who may have had something to do with the case." Nevertheless, the judge determined that plaintiff or her lawyers should have delved into the nurse's entry mentioning Dr. Tobias before the two-year statute expired.

The judge likened the situation here to that in Matynska v. Fried, 175 N.J.51 (2002), in which the Supreme Court ruled that equitable tolling principles did not excuse the plaintiff's failure to investigate potential claims against a doctor whose name had appeared multiple times in her medical chart. Applying similar concepts here, the judge suggested that plaintiff or her counsel should have checked with the hospital, consulted a telephone book, or searched on the Internet to find out whether the "Tobias" who was listed in the nurse's record was a physician and, if so, whether he also had participated in her surgery. In sum, the judge concluded that "because Dr. Tobias was named in the . . . records . . . his involvement was discoverable by due diligence well before the statute of limitations applied."

The motion judge's oral decision did not address plaintiff's argument that the operative report's omission of Dr. Tobias violated N.J.A.C.13:35-6.5, and that she had thus reasonably relied on its contents in identifying the surgeons who actually were involved in the surgery. Nor did the court comment on plaintiff's claim that defendants' interrogatory responses and Rule4:5-1 certifications had contributed to her belief that Dr. Mohr and Dr. Unda-Rivera were the only surgeons involved in her operation.

Although the judge ruled against plaintiff on the Lopezissue, he did reject Dr. Tobias's separate argument that she was obligated to have included a fictitious defendant in her original complaint. Dr. Tobias has not cross-appealed that particular ruling, although we nonetheless consider his provisional argument concerning it in Part III, infra.

II.

Having granted leave to appeal, we now turn to the merits of the parties' contentions. In reviewing those contentions, we owe no special deference to the trial court's rulings because they essentially involved the application of legal principles and did not turn upon contested matters of witness credibility. SeeManalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J.366, 378 (1995).

The statute of limitations in a medical malpractice claim is ordinarily "two years . . . after the cause of any such action shall have accrued." N.J.S.A. 2A:14-2(a). However, our law conditions that deadline with a "discovery rule," which "provides that in an appropriate case a cause of action will be held not to 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, supra, 62 N.J. at 272. The discovery rule is an equitable doctrine that operates "[t]o prevent the sometimes harsh result of a mechanical application of the statute of limitations." Martinez v. Cooper Hosp.-Univ. Med. Ctr., 163 N.J. 45, 52 (2000).

The discovery rule is applicable in both situations where the injury has not been discovered by the potential plaintiff, and situations where the injury is apparent, but it is not known "that it is attributable to the fault of another." Id. at 53 (citing Lopez, supra, 62 N.J. at 274). Under the discovery rule, a cause of action will not accrue until the plaintiff is aware of both of these elements. Ibid.

"At the heart of every discovery rule case is the issue of 'whether the facts presented would alert a reasonable person exercising ordinary diligence that he or she was injured due to the fault of another[.]'" Kendall v. Hoffman-La Roche, Inc., 209 N.J. 173, 191 (2012) (quoting Hardwicke v. Am. Boychoir Sch., 188 N.J. 69, 110 (2006)). See also Caravaggio v. D'Agostini, 166 N.J. 237, 246 (2001). "[W]here the relationship between plaintiff's injury and defendant's fault is not self-evident, it must be shown that a reasonable person, in plaintiff's circumstances, would have been aware of such fault in order to bar her from invoking the discovery rule." Kendall, supra, 209 N.J. at 192 (citing Alfone v. Sarno, 139 N.J. Super. 518, 523-24 (App. Div.), certif. denied, 71 N.J. 498 (1976)). The determination is for the court, and not for a jury. Lopez, supra, 62 N.J. at 272. The decision entails a balancing of the parties' conflicting interests. Id. at 274-75.

The relevant factors for equitable tolling, as set forth in Lopez, include: (1) "the nature of the alleged injury," (2) "the availability of witnesses and written evidence," (3) "the length of time that has elapsed since the alleged wrongdoing," (4) "whether the delay has been to any extent deliberate or intentional," and (5) "whether the delay may be said to have peculiarly or unusually prejudiced the defendant." Id. at 276. The burden of proof as to these and any other relevant factors rests with the plaintiff. Ibid. Upon considering these equitable factors here, we conclude that the trial court erred in denying plaintiff's request to include Dr. Tobias in this lawsuit.

Without citing them explicitly, the trial court essentially focused its reasoning on the second and third Lopez factors, i.e., the availability of witnesses and written evidence, and the length of time that had elapsed. The gravamen of the court's analysis was that plaintiff and her counsel had failed to pursue avenues of information that should have divulged Dr. Tobias's role, and that too much time had passed in the interim before plaintiff moved for leave to amend to add him to her complaint in September 2012.

We reach a different assessment. This case presents unusual circumstances that reasonably justify plaintiff's delay in learning that Dr. Tobias performed a part of her surgery and that he could be at fault for her injury.

A key and troubling aspect of this matter is the conspicuous omission of Dr. Tobias's name or role from the operative report. "[P]ublic policy requires that adequate operative notes be kept[.]" Smith v. United States, 128 F. Supp. 2d 1227, 1233 (E.D. Ark. 2000) (citing Pub. Health Trust of Dade Cnty. v. Valcin, 507 So. 2d 596, 601 (Fla. 1987)). One treatise has described the customary contents of an operative report as follows:

Included in the report are a full description of findings at surgery, both normal and abnormal, the organs explored, procedures performed, ligatures, sutures, number of packs, drains and sponges used, and the names of all surgeons and assistants in attendance.

 

[Roscoe N. Gray & Louise J. Grady, 179 Attorneys' Textbook of Medicine 179.62(3) (3d ed. 1949 & 2013 Supp.) (emphasis added).]

See also Marshall Houts & Leonard Marmor, 10 Proving Medical Diagnosis and Prognosis 700.16 (Matthew Bender, Rev. Ed. 2013) (noting that to meet Joint Commission standards, an operative report should disclose, among other things, "the name of the surgeon or other practitioner and any assistants").

These important elements of a written medical record such as an operative report are codified in our State in N.J.A.C. 13:35-6.5(b), a provision cited by plaintiff. In pertinent part, the regulation provides that:

(b) Licensees shall prepare contemporaneous, permanent professional treatment records. Licensees shall also maintain records relating to billings made to patients and third-party carriers for professional services. All treatment records, bills and claim forms shall accurately reflect the treatment or services rendered. Treatment records shall be maintained for a period of seven years from the date of the most recent entry.
 
1. To the extent applicable, professional treatment records shall reflect:
 
 

i. The dates of all

treatments;
 
ii. The patient complaint;
 
iii. The history;
 
iv. Findings on appropriate

examination;
 
v. Progress notes;
 
vi. Any orders for tests or

consultations and the

results thereof;
 
vii. Diagnosis or medical

impression;
 
viii. Treatment ordered,

including specific dosages,

quantities and strengths of

medications including

refills if prescribed,

administered or dispensed,

and recommended follow-up;
 
ix. The identity of the

treatment provider if the

service is rendered in a

setting in which more than

one provider practices;
 
x. Documentation when, in the

reasonable exercise of the

physician's judgment, the

communication of test

results is necessary and

action thereon needs to be

taken, but reasonable

efforts made by the

physician responsible for

communication have been

unsuccessful; and
 
xi. Documentation of the

existence of any advance

directive for health care

for an adult or emancipated

minor, and associated

pertinent information.

Documented inquiry shall be

made on the routine intake

history form for a new

patient who is a competent

adult or emancipated minor.

The treating doctor shall

also make and document

specific inquiry of or

regarding a patient in

appropriate circumstances,

such as when providing

treatment for a significant

illness, or where an

emergency has occurred

presenting imminent threat

to life, or where surgery

is anticipated with use of

general anesthesia.

 

[N.J.A.C. 13:35-6.5(b)(1) (emphasis added).]

 

Moreover, if the record is being kept on a computer, N.J.A.C. 13:35-6.5(b)(3) requires, among other things, that "[a]n entry in the patient record shall be made by the physician contemporaneously with the medical service and shall contain the date of service, date of entry, and full printed name of the treatment provider." N.J.A.C. 13:35-6.5(b)(3)(ii) (emphasis added). The physician must finalize or "sign" the entry "by means of a confidential personal code (CPC)." Ibid.

The operative report in this case fell short of these State requirements by omitting any indication of Dr. Tobias's name or his role in the surgery. Instead, the only two names provided in the operative report are that of Dr. Mohr, the lead surgeon, and Dr. Unda-Rivera, his assistant. The full "identity of [each] treatment provider" was not set forth, as called for under N.J.A.C. 13:35-6.5(b)(1)(ix).

We recognize that "Daniel H. Tobias" is denoted, rather cryptically, as an "assistant" in the separate nurse's record. He is presented as someone who entered the operating room late in the procedure and for whom there is, inexplicably, no "time out" indicated. The nurse's record is not, however, part of the operative report. It was not signed by Dr. Mohr or by Dr. Unda-Rivera with their personal code. Although Dr. Tobias urges that we consider the nurse's record in conjunction with the operative report, there is no cross-reference in the operative report to that other record. Nor is there any contemporaneous documentation showing that the surgeons approved the contents of the nurse's record.

Plaintiff contends that in these distinctive circumstances of faulty recordkeeping, she and her counsel reasonably relied in good faith upon the operative report as erroneously identifying only two surgeons participating in the operation. We accept that contention, especially because other aspects of the case reinforced plaintiff's mistaken perception.

For one thing, it is significant that Dr. Mohr evidently did not disclose the initial injury to plaintiff, nor Dr. Tobias's involvement as the doctor who repaired her vaginal rent, even after plaintiff came to him to complain of her post-surgical leakage. Although we need not address here whether such non-disclosure violated any standard of care, it would have been natural for a patient to expect that Dr. Mohr would have told her, at least after the fact when problems arose, that another surgeon had taken part in repairing her organ. The absence of any billing or communication from Dr. Tobias could have only fortified plaintiff's understandable ignorance of his role.

It is also significant that during the litigation itself, the co-defendants gave plaintiff interrogatory answers that masked Dr. Tobias's involvement. The statement within Dr. Mohr's narrative description that the operation "was performed with Dr. Rafael [Unda-]Rivera, defendant's 3GY resident11, assisting" is at best incomplete and, at worst, misleading. Dr. Tobias is nowhere mentioned by name in the co-defendants' interrogatories, even though they were certainly aware of his involvement. It also should have been clear by the spring of 2011 when those interrogatory answers were furnished that plaintiff was seeking to place responsibility on any surgeon who may have caused the tear in her ureter.

Discovery responses should be forthright and complete. See Oliviero v. Porter Hayden Co., 241 N.J. Super. 381, 387 (App. Div. 1990) ("The discovery rules were designed to eliminate, as far as possible, concealment and surprise in the trial of law suits[.]"). See also Matynska, supra, 175 N.J. at 53-54 (admonishing counsel and litigants to refrain from providing misleading discovery responses, such as the refusal of a defendant physician to identify the members of his practice group or to disclose the involvement of his partner in the patient's care). The interrogatory answers12 supplied here could have easily led plaintiff and her counsel astray. The omissions could have prejudiced plaintiff, who might well face an "empty chair" strategy at trial by the named defendants seeking to deflect responsibility onto Dr. Tobias.

These idiosyncratic aspects of this case readily distinguish it factually and procedurally from the situation in Matynska, upon which Dr. Tobais and the motion judge relied. The plaintiff in Matynska underwent hip replacement surgery, and filed a complaint against the hospital where her surgery took place, eleven nurses and doctors, and "John Doe, M.D. and Jane Doe, R.N.," alleging negligent post-operative medical treatment. Matynska, supra, 175 N.J. at 52. However, the plaintiff failed to name a physician, Dr. Feierstein, a partner of her orthopedic surgeon who had covered hospital rounds for three days after her operation. Ibid. Although Dr. Feierstein's name appeared twice in the plaintiff's charts, she argued that "she did not timely know that he was in any way responsible for her treatment" because she was not told that he would be covering rounds for her surgeon, had never met him, and, most pertinently, "because the brief and vague hospital chart references to Dr. Feierstein did not disclose his role in her care and treatment." Ibid. The plaintiff in Matynska did not file a motion to amend her complaint to include Dr. Feierstein until two years after she had filed her original complaint, and four years after the alleged negligent medical treatment took place. Id. at 53. The plaintiff's motion to amend her complaint was denied by the trial court and upheld by this court. Ibid. The Supreme Court affirmed that outcome, finding that the plaintiff's "efforts to discover the role of all parties complicit in her injury were wholly inadequate at least insofar as Dr. Feierstein was involved." Ibid. The Court noted that since Dr. Feierstein's name appeared twice in the plaintiff's medical records, "[e]ven a cursory look at the telephone book or a call to . . . the hospital would have uncovered Dr. Feierstein's . . . role." Ibid. Because the plaintiff had not met her "obligation to investigate all potentially responsible parties in a timely manner," she "failed to cross the due diligence threshold[.]" Ibid.

Here, unlike the plaintiff in Matynska, plaintiff and her attorneys had scant reason to believe that a third surgeon had participated in her operation. As we have already underscored, the present case involves a faulty operative report that would have led a reasonable person to believe that only two, not three, surgeons had taken part in the procedure. There was no faulty operative report involved in Matynska, and no invocation of a State recordkeeping regulation. The plaintiff in Matynska did not contend that material information identifying a participating surgeon was not where it was expected to be in an operative report. Matynska is also distinguishable because there were multiple references to Dr. Feierstein in the records, and Matynska waited approximately a year longer than plaintiff here to attempt to amend the complaint.

Although, in hindsight, it would have been fruitful for plaintiff or her counsel to have investigated the sole entry referring to Dr. Tobias in the separate nurse's record, we do not agree with the trial court that the absence of such follow-up here before Dr. Mohr's deposition comprises a lack of due diligence. In reaching that assessment, we caution that it is based upon the specific facts of this case. Our opinion should not be construed to suggest that plaintiffs and their counsel in medical negligence cases should routinely ignore references to participating individuals who are mentioned in a medical chart.

We also are satisfied that plaintiff and her counsel acted with prudence and reasonable diligence in pursuing a potential claim against Dr. Tobias once his role in the surgery was first disclosed at Dr. Mohr's February 2012 deposition. Plaintiff appropriately acted upon the revelation in a step-by-step and expeditious manner. First, she promptly subpoenaed Dr. Tobias for a deposition, to see if he would confirm his involvement and his role. Once she obtained his statements, counsel supplied them to a medical expert to ascertain whether there was a reasonable basis to sue Dr. Tobias for deviating from the standards of care. Within only a few days after receiving a confirmatory affidavit of merit from that expert, plaintiff moved for leave to amend her complaint against Dr. Tobias.

It is the public policy of this State to discourage plaintiffs from suing doctors and other licensed professionals indiscriminately. The following passage from Justice O'Hern's opinion in Mancuso v. Neckles, 163 N.J. 26 (2000), is instructive:

Plaintiff was not dilatory. Plaintiff did "not know or have reason to know that [she] ha[d] a cause of action against an identifiable defendant until after the normal period of limitations had expired." Could or should she have insisted that her attorney seek further experts, and if so, how many? Lawyers retaining expert witnesses do not target the expert on a particular defendant, theory or cause of action. They seek the best advice possible. Both plaintiff and her attorney were then constrained under the Rules of Professional Conduct stating that "[a] lawyer shall not bring or defend a proceeding, nor assert or controvert an issue therein unless the lawyer knows or reasonably believes that there is a basis for doing so that is not frivolous. . . ." Parties must also comply with the "Frivolous Litigation Statute." N.J.S.A. 2A:15-59.1 penalizes parties conducting "frivolous litigation" and compensates those parties victimized by such actions brought "in bad faith, for the purpose of delay and harassment."

 

That ethical requirement of a good faith belief in an actionable claim is reinforced by the recent enactment of the Affidavit of Merit Statute. Within 60 days of filing a professional malpractice action, a plaintiff must "provide each defendant with an affidavit of an appropriate licensed person that there exists a reasonable probability that the care, skill or knowledge exercised or exhibited in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional or occupational standards or treatment practices." Thus, in addition to filing the action within two years of its accrual, a claimant must also have in hand or be able to obtain within 60 days the expert's opinion pursuant to the Affidavit of Merit Statute; otherwise, the claim is precluded. Realistically, most attorneys and parties will want to have the report in hand before filing the suit.

 

[Id. at 36-37 (emphasis added) (citations omitted).]

We do not endorse the view that a plaintiff should file a "gunshot" complaint naming every medical professional identified in an injured patient's records, and then see what is uncovered in the discovery process. Instead, for the reasons expressed by the Supreme Court, the legal system affords plaintiffs a reasonable opportunity to have a potential claim evaluated by an expert before dashing off to court and potentially harming the reputation and insurability of a practicing physician.13

Evaluating the discrete circumstances here, we conclude that the trial court erred in disallowing plaintiff's request to name Dr. Tobias as an additional party defendant. The five factors set forth in Lopez, weighed in their totality, warrant such relief. The nature of plaintiff's alleged injury from the surgery is potentially substantial. For the reasons we have noted, plaintiff and her counsel acted reasonably with respect to available witnesses and written evidence, notwithstanding the singular reference to Tobias in the nurse's record. The length of time elapsed from the surgery in September 2009 to plaintiff's amended motion in September 2012 was three years, whereas, by comparison, the interval in Matynska was four years. Plaintiff's delay was not deliberate or intentional, but instead resulted from unusual circumstances largely created by others. Lastly, the record provided no evidence that the delay "peculiarly or unusually prejudiced" Dr. Tobias. Lopez, supra, 62 N.J. at 276.

The trial court's order dismissing Dr. Tobias as a named defendant consequently must be reversed, based upon a fair application of equitable tolling principles.

III.

We need not comment at length about Dr. Tobias's argument that plaintiff was obligated to include a fictitious defendant physician in her original complaint. The trial court soundly rejected this contention.

Rule 4:26-4 provides that:

In any action, irrespective of the amount in controversy, other than an action governed by R. 4:4-5 (affecting specific property or a res), 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.

 

[(Emphasis added).]

 

By using the term "may," the rule connotes that the inclusion of a fictitious defendant is optional, not mandatory. See Aponte-Correa v. Allstate Ins. Co., 162 N.J. 318, 325 (2000) ("Under the 'plain meaning' rule of statutory construction, the word 'may' ordinarily is permissive and the word 'shall' generally is mandatory."). Hence, plaintiff was not inexorably required to name a "John Doe" fictitious physician in her original complaint, even though it might have been a useful cautious practice to do so.

Defendant also points to Rule 4:9-3, which describes the "relation-back" doctrine:

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; but the court, in addition to its power to allow amendments may, upon terms, permit the statement of a new or different claim or defense in the 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.

Although the relation-back doctrine might have allowed the original complaint to be deemed to include Dr. Tobias, if plaintiff had named a John Doe physician, it was unnecessary for her to do so. The crux of plaintiff's position has been that the operative report and other surrounding circumstances were insufficient to indicate that Dr. Tobias had been a third surgeon taking part in her operation. She relies upon principles of tolling under Lopez, which do not depend upon a relation-back premise, but rather an equitable underpinning. Consequently, Dr. Tobias's invocation of Rule 4:26-4 is not dispositive.

Reversed and remanded. We do not retain jurisdiction.

 

1 Although the pleadings and briefs do not hyphenate Dr. Unda-Rivera's last name, another document in the record reflects that he sometimes uses such a hyphen.

2 Dr. Berger's first name is not provided in the record.

3 Like the briefs and appendices, we shall use the terms "perioperative record" and "nurse's report" interchangeably.

4 According to plaintiff's second attorney, Lifeline Medical Associates is "a corporate entity associated with Dr. Mohr." The attorney discerned Dr. Mohr's involvement with Lifeline Medical Associates through "paperwork . . . in his [Dr. Mohr's] office record[.]"

5 Copies of defendants' answers to interrogatories, which were omitted from the appendices but referred to in the briefs and in the trial court proceedings, were furnished to us by counsel at our request. As indicated on their final page, Dr. Unda-Rivera signed his interrogatory responses on June 15, 2011. At oral argument on the appeal, we were advised that Dr. Mohr signed his own interrogatory responses on April 4, 2011. Hence, both interrogatory responses were furnished to plaintiff within two years after her surgery.

6 The posed question evidently refers to N.J.A.C. 13:35-6.5, a regulation that we discuss in Part II, infra.

7 Although these specific additional portions of Dr. Tobias's deposition apparently were not presented to the motion judge at the Lopez hearing, we take judicial notice of them as part of the litigation record. See N.J.R.E. 201 (judicial notice); see also N.J.R.E. 106 (the rule of completeness for documents). We do take this opportunity to remind counsel to exercise care when they provide only excerpts of deposition transcripts to the court, in instances where the full transcript contains other portions that may be relevant to the issues or might provide helpful context.

8 We learned from oral argument on the appeal that plaintiff does not criticize Dr. Tobias's repair of the vaginal wall itself. Instead, plaintiff apparently theorizes that Dr. Tobias may have nicked the ureter during the course of the vaginal repair.

9 Plaintiff has not appealed that ruling concerning the hospital.

10

It is not clear from the record whether plaintiff settled with Dr. Unda-Rivera or dismissed him unconditionally.

11 By contrast, the record suggests that Dr. Tobias is not a resident. It was therefore arguably misleading for the interrogatory response to leave the impression that Dr. Mohr was assisted only by a resident.

12 We are not, however, persuaded by plaintiff's argument that the co-defendants were obligated to mention Dr. Tobias in their counsel's Rule 4:5-1 certifications. Those certifications are created for different purposes than discovery, and are instead designed to foster the efficiency goals of the entire controversy doctrine. See Kent Motor Cars, Inc., v. Reynolds & Reynolds, Co., 207 N.J. 428, 442-45 (2011) (explaining the history of Rule 4:5-1 and its relation to the entire controversy doctrine). See also Pressler & Verniero, Current N.J. Court Rules, comment 2.1 on R. 4:5-1 (2014) ("The purpose of paragraph (b)(2) of the rule is to implement the philosophy of the entire controversy doctrine."). Because the co-defendants are not the arbiters of the standards of care for other potential defendants, they were not necessarily required to treat Dr. Tobias in their Rule 4:5-1 certifications as a party who ought to be named as another defendant.

13 Our conclusion is not undermined by Brizak v. Needle, 239 N.J. Super. 415 (App. Div. 1990), and Johnston v. Muhlenberg Reg'l Med. Ctr., 326 N.J. Super. 203 (App. Div. 1999), two opinions relied upon by Dr. Tobias that predate the Supreme Court's opinion in Mancuso. In Brizak, the plaintiff knew the identity of the doctor who had improperly set her broken arm, yet her attorney did nothing to act upon her potential claim until after the statute of limitations had expired. Brizak, supra, 239 N.J. Super. at 420. By contrast here, plaintiff's lawyer did take action by filing suit within the two-year statutory period against the only surgeons named in the operative report. Johnston is also dissimilar because in that case the plaintiff and her counsel were well aware of the existence of the responsible surgeon, who plaintiff had met with in person before the operation, but simply did not know her name. Johnston, supra, 326 N.J. Super. at 205-06. Here, as we have noted, plaintiff was unaware of the existence of the third surgeon, having been disadvantaged by a faulty operative report, the lead surgeon's post-surgical non-disclosure of Dr. Tobias, and the misleading interrogatory answers.