TINISHA HOOD v. MAYA RAMAGOPAL, M.D.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

TINISHA HOOD, Individually and

as Parent and Representative of

the Estate of Asia Love Brister,

Plaintiff-Respondent,

v.

MAYA RAMAGOPAL, M.D.,

THE UNIVERSITY OF MEDICINE

AND DENTISTRY OF NEW JERSEY,

Defendants-Appellants,

and

ROBERT WOOD JOHNSON MEDICAL CENTER

and ROBERT WOOD JOHNSON MEDICAL GROUP,

Defendants.

__________________________________________________

August 18, 2015

Submitted November 18, 2014 Decided

Before Judges Hayden and Sumners.

On appeal from Superior Court of New Jersey,

Law Division, Middlesex County, Docket No. L-5323-13.

John J. Hoffman, Acting Attorney General, attorney for appellants (Melissa H. Raksa, Assistant Attorney General, of counsel; Stephen R. Tucker, Deputy Attorney General, on the brief).

Martin Kane & Kuper, LLC, attorneys for respondent (James D. Martin, of counsel; Todd Drayton, on the brief).

PER CURIAM

Plaintiff Tinisha Hood, individually and as parent and representative of her deceased daughter Asia Love Brister, filed a motion to file a late notice of claim under the New Jersey Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 12-3, for the wrongful death of her daughter. Defendants University of Medicine and Dentistry of New Jersey (UMDNJ) and Maya Ramagopal, M.D., appeal from the October 11, 2013 Law Division order granting plaintiff's motion, which alleged they were responsible due to a failure to diagnose and treat an underlying heart condition. Defendants argue, among other things, that the Law Division judge erred in finding that plaintiff established sufficient reasons to satisfy the "extraordinary circumstances" standard under N.J.S.A. 59:8-9 that permits a claimant to file the TCA notice after ninety days from the date the action accrued. Having reviewed the record before us, and being mindful of the prevailing legal standards, we agree with defendant's argument and reverse.

I.

The record established that on January 27, 2012, plaintiff's daughter, aged five, died suddenly in her sleep. At the time of her death, the daughter was being treated by several physicians at the Robert Wood Johnson Medical Group (Medical Group), which at the time was part of UMDNJ. Defendant Maya Ramagopal, a pulmonary specialist, who worked at the Medical Group, was one of the decedent's doctors. The decedent also received treatment from several physicians, including from Dr. Ramagopal, at the Robert Wood Johnson Medical Center (Hospital), which was a private non-profit hospital.

As the cause of death was unknown, the Middlesex County Medical Examiner's Office took the decedent's body to determine the reason for the unexpected death. Sometime in August 2012, plaintiff received a phone call from Dr. Frederick DiCarlo of the Medical Examiner's Office regarding the autopsy of the decedent. Dr. DiCarlo informed plaintiff that the decedent had an enlarged heart, which could be an indicator of a genetic heart defect, and recommended that she obtain testing for her three other children for genetic heart problems. This was the first time that plaintiff learned that the decedent had any heart problems. Dr. DiCarlo stressed that he had not determined that a heart defect caused the decedent's death, noting that the autopsy was not yet complete. Over the next several months, plaintiff followed his advice and had her children tested.

On December 12, 2012, the medical examiner issued the autopsy report, listing the cause of death as hypertrophic cardiomyopathy. Shortly after receiving a copy of the report, plaintiff retained counsel, who instructed her to obtain the decedent's medical records in order to determine whether there was a sufficient basis for filing a claim. Plaintiff first requested records from the Medical Group in February 20131 and acknowledged that she received records from Ramagopal and the treating pediatrician within a month. Plaintiff certified that her efforts to obtain complete medical records from the Hospital were "significantly hindered" by defendants. Plaintiff explained that she sent three releases to the Hospital, which were lost, and it was not until June 2013 that she received most, but not all, of the decedent's medical records.

After receiving over 2000 pages of medical records by June 2013, plaintiff's counsel retained an expert to review them to determine the viability of a malpractice claim against defendants for failure to diagnose the decedent's heart condition. In early August, the expert's report caused the attorney to determine such a claim was appropriate. Thereafter, on August 15, 2013, plaintiff served notice to defendants of her wrongful death and survivor claims pursuant to N.J.S.A. 59:8-8. At the same time, plaintiff filed a motion for leave to file a late notice of claim pursuant to N.J.S.A. 59:8-9.

On October 11, 2013, the trial court heard arguments and issued an oral decision on plaintiff's motion. In the decision, the trial court determined that December 12, 2012, the date of the medical examiner's report, was the date of accrual for plaintiff's claim as for the first time plaintiff knew "what the cause of death was[.]" The trial court also concluded that extraordinary circumstances existed to justify plaintiff filing a late notice of claim. In support, the trial court noted that plaintiff's efforts to obtain the decedent's complete medical records had been thwarted on several occasions by defendants.

The trial court rejected defendants' arguments that the delay in obtaining the complete hospital records was not caused by UMDNJ or Ramagopal. Rather, according to defendants, any delay was due to the actions of the Hospital, which as a non-profit hospital was a separate independent entity and not controlled by UMDNJ. The trial court also reasoned that granting plaintiff's late notice of claim would not prejudice defendants because the delay was less than one year, and the decedent's body was available for examination by either party.

On appeal, defendants argue that the trial court erred for several reasons: (1) the trial court should have held a Lopez2 hearing to determine when plaintiff's claim accrued, (2) extraordinary circumstances did not exist to justify granting plaintiff's motion for leave to file late notice of claim, and (3) the trial court lacked jurisdiction to consider the filing of a late notice of claim under the Wrongful Death Act, N.J.S.A. 2A:31-1 to -6, as a year had elapsed since the date of accrual.

II.

Defendants first challenge the trial court's finding of the date of accrual without a hearing. Under the TCA, a notice of claim must be filed within ninety days after the accrual of a cause of action. N.J.S.A. 59:8-8. The cause of action is generally considered to have accrued on the date of the injury. Beauchamp v. Amedio, 164 N.J. 111, 117, (2000). If, however, the date of the injury cannot be determined, courts will use the discovery rule to determine when the cause of action accrued. Ibid. It is well-established that the discovery rule applies to claims brought under the TCA. See McDade v. Siazon, 208 N.J. 463, 474-75 (2011); Beauchamp, supra, 164 N.J. at 117. The discovery rule is an equitable tool created by courts to toll the statute of limitations by postponing the accrual of a cause of action. See Dunn v. Borough of Mountainside, 301 N.J. Super. 262, 273 (App. Div. 1997), certif. denied, 153 N.J. 402 (1998).

Under the discovery rule, a cause of action accrues when "the facts presented would alert a reasonable person, exercising ordinary diligence, that he or she was injured due to the fault of another." Caravaggio v. D'Agostini, 166 N.J. 237, 246 (2001). Thus, the accrual date, and the resultant computation of the time limit, begins when a plaintiff knows or should know of the essential facts to advance a cause of action. Baird v. Am. Med. Optics, 155 N.J. 54, 68 (1998) (noting that the time limit begins to run "when the injured party possesses actual or constructive knowledge 'of that state of facts which may equate in law with a cause of action.' The 'basis' of such a cause of action, 'is, of course, constituted solely by the material facts of the case.'") (internal citations omitted). Plaintiffs do not need to know the legal effect or "specific basis for legal liability" under the facts. Caravaggio, supra, 166 N.J. at 246.

When a plaintiff seeks to invoke the discovery rule, a preliminary hearing may need to be held to determine its applicability. See Lopez, supra, 62 N.J. at 275. However, Lopez did not mandate that a hearing take place. Rather, a hearing may be appropriate where credibility is at issue, ibid., or where the material facts regarding the date of discovery are in dispute. See Henry v. N.J. Dep't of Human Servs., 204 N.J. 320, 336 n.6 (2010) (internal citations omitted). Where neither of these factors are present, the determination whether to hold a plenary hearing is a discretionary matter for the trial court. See Lopez, supra, 62 N.J. at 275; see also Walker v. Choudhary, 425 N.J. Super. 135, 145 (App. Div.) ("Where credibility is not involved, affidavits, with or without depositions, may suffice; [but] it is for the trial judge to decide."), certif. denied, 211 N.J. 274 (2012). Moreover, Lopez specifically noted that in certain cases, the trial court may elect to forgo a plenary hearing where "the same evidence will be adduced at the trial itself as upon the statute of limitations issue[.]" Lopez, supra, 62 N.J. at 275 n.3.

Here, at least for purposes of this motion, credibility was not an issue and the material facts regarding when plaintiff learned of the official cause of death of the decedent was not in dispute. True, plaintiff learned for the first time from Dr. DiCarlo that the decedent had an enlarged heart and knew that she had never been diagnosed or treated for that condition by any of the decedent's treating physicians. Contrary to defendants' argument, however, the August 2012 phone call to Dr. DiCarlo did not tell plaintiff the cause of death or even suggest the possibility of negligence. Rather, the doctor merely advised plaintiff that the initial tests showed that the decedent may have had genetic heart problems.

We reject the State's argument that plaintiff's decision to bring her children to be tested for heart problems showed she knew that the decedent had died from a heart problem. "[A] reasonable person, exercising ordinary diligence," could not have interpreted that phone call as evidence that the decedent died as a result of negligence or that defendants were at fault or had injured the decedent. See Caravaggio, supra, 166 N.J. at 246. Instead, the record shows that when the autopsy report established the cause of death, plaintiff knew, for the first time, both the injury and the potential cause based on the treating doctors failure to diagnose or treat the heart condition. See Baird, supra, 155 N.J. at 68. Accordingly, we are convinced that the judge's decision that the accrual date was December 12, 2012 is well-supported by the record and will not be disturbed.

III.

Next, defendants argue that the trial court erred in granting plaintiff's late notice of claim because extraordinary circumstances did not exist. We agree for the following reasons.

The decision whether to grant or deny an application for leave to file late notice of claim "is a matter left to the sound discretion of the trial court[.]" Mendez v. S. Jersey Transp. Auth., 416 N.J. Super. 525, 532-33 (App. Div. 2010) (quoting Lamb v. Global Landfill Reclaiming, 111 N.J. 134, 146 (1988)). An abuse of discretion "arises when a decision is 'made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis.'" Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571 (2002) (quoting Achacoso-Sanchez v. INS, 779 F.2d 1260, 1265 (7th Cir. 1985)). "Although deference will ordinarily be given to the factual findings that undergird the trial court's decision, the court's conclusions will be overturned if they were reached under a misconception of the law." D.D. v. Univ. of Med. & Dentistry of N.J., 213 N.J. 130, 147 (2013). We conclude that the judge mistakenly interpreted the law in this case.

As noted previously, a claimant must file a notice of claim within ninety days of the accrual of the cause of action. N.J.S.A. 59:8-8. The purposes of the notice are as follows

(1) to allow the public entity at least six months for administrative review with the opportunity to settle meritorious claims prior to the bringing of suit; (2) to provide the public entity with prompt notification of a claim in order to adequately investigate the facts and prepare a defense; (3) to afford the public entity a chance to correct the conditions or practices which gave rise to the claim; and (4) to inform the [public entity] in advance as to the indebtedness or liability that it may be expected to meet.

[Velez v. City of Jersey City, 180 N.J. 284, 290 (2004) (quoting Beauchamp, supra, 164 N.J. at 121-22).]

A person is forever barred from bringing an action against a public entity or employee if he fails to comply with the notice requirements. N.J.S.A. 59:8-8(a). However, N.J.S.A. 59:8-9 alleviates the harshness of the ninety-day requirement by authorizing a Superior Court judge to permit the filing of a notice of claim beyond the ninety-day limit for a period up to one year after the accrual of the claim, provided the movant shows there are sufficient reasons constituting extraordinary circumstances for the failure to timely file and there is no substantial prejudice to the public entity. N.J.S.A. 59:8-9; see also McDade, supra, 208 N.J. at 475-77.

Although a claim against a public entity generally accrues on "the date of the incident on which the negligent act or omission took place[,]" Beauchamp, supra, 164 N.J. at 117, the Court observed that the term "notice of claim" was somewhat of a "misnomer[,]" explaining

A person need not have or even contemplate filing a claim[.] It is more properly denominated as a notice of injury or loss. Although the full extent of an injury or loss may not be known, N.J.S.A. 59:8-4, the notice is triggered by the occurrence of injury and must be filed in order for a complaint to be lodged against the public entity.

[Id. at 121.]

The discovery rule may toll the date of accrual for purposes of computing the ninety-day period only "[u]ntil the existence of an injury (or, knowledge of the fact that a third party has caused it) is ascertained." McDade, supra, 208 N.J. at 475 (quotation marks and citations omitted). After the court determines the date of accrual, the court must determine whether a notice of claim was timely filed and, if not, then determine whether extraordinary circumstances exist that will justify permitting a notice of late claim. Id. at 477 (quoting Lowe v. Zarghami, 158 N.J. 606, 625-26 (1999)). "The inquiry focuses on the reasonable diligence of the plaintiff in investigating the claim and determining the identity of the tortfeasor." Ibid. In addition, the court must decide whether the public entity will be substantially prejudiced by the late notice. Leidy v. Cnty. of Ocean, 398 N.J. Super. 449, 456(App. Div.2008). That said, if the court determines that there were no extraordinary circumstances, the court need not address substantial prejudice. See D.D., supra, 213 N.J. at 149, 157-58.

Although "extraordinary circumstances" is not defined in the statute, courts have reiterated that such a determination must be made on a case-by-case basis after considering all of the facts. See Mendez, supra, 416 N.J. Super. at 533 (citing Lowe, supra, 158 N.J. at 626). In 1994, the Legislature amended the TCA to require showing extraordinary circumstances, thus raising the bar for filing a late notice by eliminating what had been a fairly permissive standard. D.D., supra, 213 N.J. at 148. Notwithstanding this "more demanding" standard, Beauchamp, supra, 164 N.J. at 118, the reviewing court should resolve any doubts in favor of the application so "that wherever possible cases may be heard on their merits[.]" Lowe, supra, 158 N.J. at 629 (quoting Feinberg v. State, N.J. Dep't of Envtl. Prot., 137 N.J. 126, 135 (1994)) (internal quotations omitted). Nevertheless, the court's analysis of whether extraordinary circumstances exists "must be directed to the evidence that relates to plaintiff's circumstances as they were during the ninety-day time period, because that is the time during which the notice should have been filed." D.D., 213 N.J. at 151.

In D.D., the Court emphasized that the authority granted by the Legislature to "trial courts to permit a late notice in the exercise of their discretion does not equate with a grant of authority to override the statute's declaration of purpose or to substitute a lesser standard of proofs for . . . extraordinary circumstances . . . ." Id. at 148. The Court also admonished appellate courts in reviewing decisions by the trial courts, they

must ensure that their decisions are faithful to the overall legislative framework in order that the statute's essential purposes be preserved and not eroded through excessive or inappropriate exceptions. Courts faced with applications for leave to file a late notice of claim, therefore, must proceed with their evaluation mindful of the Legislature's direction that the proofs demonstrate circumstances that are not merely sufficient, but that they instead be extraordinary.

[Id. at 148-49.]

The record demonstrates, and the judge found, that plaintiff's cause of action accrued in December 2012 when she received the autopsy report. At that time, plaintiff knew the cause of the decedent's death and that none of her doctors had diagnosed her with an enlarged heart or treated her for a heart condition. Thus, plaintiff had the facts that "would alert a reasonable person, exercising ordinary diligence, that he or she was injured due to the fault of another." Caravaggio, supra, 166 N.J. at 246. Accordingly, plaintiff had sufficient information to provide notice of her claim at that time. Beauchamp, supra, at 117, 122. Although she sought medical records to confirm her knowledge, filing a notice of claim does not require that a claimant first obtain a medical opinion based upon a complete review of all the records. Nothing in the record indicates what additional information was received after the expiration of the ninety-day period or whether this information was unknown to plaintiff during the ninety-day period. Plaintiff certainly knew that Ramagopal treated her daughter under the auspices of UMDNJ as indicated in her signed release. Other than the desire to obtain more records, the record provides no reason for not filing the notice of claim within ninety days.

We also cannot agree on this record that plaintiff's attempts to obtain the medical records were thwarted by defendants or that this situation created extraordinary circumstances for filing a late notice of claim. Plaintiff admits that she knew that Ramagopal was affiliated with UMDNJ when she obtained the Medical Group records during the ninety-day period. The record does not show that Ramagopal or UMDNJ had any control over the record department of the private non-profit Hospital. The mere fact that the separation between the public Medical Group and the private Hospital is confusing and does not make the public entity responsible for the Hospital's actions or inactions. The situation here is not at all similar to cases where the fact that a physician was a UMDNJ employee who was working at a private hospital did not surface until after the ninety-day period had run. See Eagan v. Boyarsky, 158 N.J. 632, 635, 642 (1999); Lowe, supra, 158 N.J. at 612-13, 629. We simply can find no basis in the record for the finding of extraordinary circumstances here.

Under the standards established by the Legislature in N.J.S.A. 59:8-9 and reaffirmed by the Court in D.D., we are compelled to reverse and vacate the trial court's order granting plaintiff's motion to file a late notice of claim.3

Reversed.

1 The release she sent to obtain the records "authorize[d] University of Medicine and Dentistry of New Jersey - The Robert Wood Johnson Medical Group to release" the decedent's protected health information. She wrote Ramagopal's name at the top of the release. There is a written notation on the release that the file was mailed on March 7.

2 Lopez v. Swyer, 62 N.J. 267 (1973).

3 Based on this decision, we need not reach defendants' third point that the trial court did not have jurisdiction to grant a notice of claim on the wrongful death claim because the one year period for filing claims allowed in N.J.S.A. 59:8-9 had passed.