JOSE PEREZ v. WARREN A. CHIODO

NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
        parties in the case and its use in other cases is limited. R. 1:36-3.




                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-1857-16T2

JOSE PEREZ & MYRIAM PEREZ,
his wife,

              Plaintiffs-Respondents,

v.

WARREN A. CHIODO, DPM,
THE UNIVERSITY HOSPITAL OF
MEDICINE & DENTISTRY OF
NEW JERSEY,

          Defendants-Appellants.
___________________________________

              Submitted January 25, 2018 – Decided February 12, 2018

              Before Judges Haas and Gooden Brown.

              On appeal from Superior Court of New Jersey,
              Law Division, Essex County, Docket No. L-6022-
              16.

              Gubir S. Grewal, Attorney General, attorney
              for appellants (Melissa H. Raksa, Assistant
              Attorney General, of counsel; Bryan E. Lucas,
              Deputy Attorney General, on the briefs).

              Emolo & Collini, attorneys for respondents
              (John C. Emolo, on the brief).

PER CURIAM
      Defendants Warren A. Chiodo, DPM, and University Hospital

appeal    from   a   December   2,   2016       Law   Division   order    granting

plaintiffs Jose and Myriam Perez's motion for leave to file a late

notice of tort claim pursuant to 
N.J.S.A. 59:8-9.                We reverse and

remand for a Lopez1 hearing on all issues related to the motion.

      On January 24, 2015, plaintiff Jose Perez (Perez) was on duty

as a police officer when he slipped and fell on ice and sustained

an injury to his left ankle.          He was referred to Dr. Chiodo, who

was   a   podiatrist    employed     by       University    Hospital,    a    public

healthcare facility of the State of New Jersey.                         Dr. Chiodo

diagnosed Perez with a left ankle fracture and, on February 2,

2015, performed surgery on the ankle.                      According to Perez's

certification, he thereafter experienced pain in the ankle, and

he had to use crutches and a walker boot to ambulate.                          Perez

claimed that Dr. Chiodo assured him that these conditions were

normal post-operative complications of the surgery.

      Perez certified that after his last appointment with Dr.

Chiodo on June 23, 2015, he "began looking for another physician

as [his] ankle was not getting any better and [he] was still

incapable of putting any weight on [it] and [he] was still on

crutches and wearing a [walker] boot."                     He consulted another



1
    Lopez v. Swyer, 
62 N.J. 267 (1973).

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physician on July 22, 2015, who recommended that Perez undergo a

second surgical procedure to repair his left ankle.          However,

Perez alleged that this doctor "never suggested or intimated that

the reason that [he] needed another surgical procedure was due to

anything that Dr. Chiodo had done during the first surgery." Perez

did not supply a certification from the second doctor corroborating

these hearsay statements.

      On August 3, 2015, the second physician performed revision

surgery on Perez's ankle.     Perez alleged that he was thereafter

confined to his home, except when he went out for physical therapy.

Perez developed an infection and, on November 16, 2015, the second

doctor performed another surgery to remove the screws in Perez's

ankle.   Perez claimed that he was now using a walker, a cane, and

a boot to get around, but could still not leave the home to consult

with an attorney, although he continued to go out for physical

therapy and doctor's appointments.

      Sometime in February 2016, Perez met with his attorney at the

attorney's office.     According to the certifications submitted by

Perez and his attorney, they discussed whether Perez might be able

to institute a "third[-]party action against the owner of the

property where he fell."       After several months, the attorney

determined that "no third[-]party action was viable."       Neither of

the   certifications   specifically   addresses   whether   they   also

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discussed   Perez's    ongoing   medical   complaints   during     their

conversations.

     Perez certified that sometime in July 2016, he "began to

wonder why [he] needed a second surgery if the first surgery was

done correctly."      Perez asserted he then asked his attorney to

send his X-rays to a podiatric surgeon for review.       "On or about

August 30, 2016,"2 that surgeon advised Perez's attorney "that it

was his opinion that Dr. Chiodo did deviate from acceptable

standards of podiatric surgery."       According to Perez and his

attorney, "[t]his was the first time that [Perez] became aware of

the fact that there may be a viable cause of action for podiatric

malpractice against Dr. Chiodo."

     On September 20, 2016, Perez's attorney filed a notice of

claim upon Dr. Chiodo and University Hospital.          He thereafter

filed a motion for leave to file a late notice of claim pursuant

to 
N.J.S.A. 59:8-9.      Despite the many factual issues raised in

Perez's and his attorney's certifications concerning the date

Perez's malpractice claim accrued, the trial judge did not conduct

an evidentiary hearing or oral argument. Instead, the judge simply

issued an order on December 2, 2016, granting plaintiffs' motion



2
   Neither of the certifications are clear as to when Perez's
attorney received his expert's report. Both certifications state
that this occurred "[o]n or about August 30, 2016[.]"

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and writing at the bottom of the order that the date of accrual

of plaintiffs' cause of action was August 30, 2016.

     After defendants filed their notice of appeal, the judge

issued a brief written decision pursuant to Rule 2:5-1(b).            While

acknowledging    that    the   parties     vigorously     disputed      when

plaintiffs' cause of action accrued, he nevertheless found on the

sparse record before him that "it was not possible for Perez to

know he had a cause of action" until he received the expert's

report on August 30, 2016.        Therefore, the September 20, 2016

notice of claim was timely.      This appeal followed.

     On   appeal,   defendants   argue    that   the    judge   mistakenly

exercised his discretion by granting plaintiffs' motion to file a

late notice of claim.    We agree.

     Under the Tort Claims Act, 
N.J.S.A. 59:1-1 to -12.3, 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.     A 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 Act.      McDade v. Siazon, 
208 N.J. 463, 474-75 (2011);

Beauchamp, 
164 N.J. at 117.      The discovery rule is an equitable

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tool created by courts to toll a limitations period by postponing

the accrual of a cause of action. Dunn v. Borough of Mountainside,


301 N.J. Super. 262, 273 (App. Div. 1997).

     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 has actual or constructive knowledge

of the material "facts indicating that [he or] she has been injured

through the fault of another, not when a lawyer advises [him or]

her that the facts give rise to a legal cause of action").                        A

plaintiff does not need to know the legal effect or "specific

basis for legal liability" for a claim to accrue once the material

facts of the case are known.           Caravaggio, 
166 N.J. at 246.

     When a plaintiff seeks to invoke the discovery rule, a

preliminary    hearing        is   often     required     to   determine       its

applicability.       Lopez, 
62 N.J. at 275.         An evidentiary hearing is

especially critical in a case where, as here, credibility is at

issue, ibid., or where the material facts regarding the date of

                                        6                                 A-1857-16T2
discovery are in dispute.     Henry v. N.J. Dep't of Human Servs.,


204 N.J. 320, 336 n.6 (2010).

     Here,   Perez's   credibility       was   clearly   at    issue     and   the

material facts concerning when he knew or should have known that

he had a cause of action were in sharp dispute.               Perez alleged he

had no idea he had a cause of action until "on or about August 30,

2016" when his attorney received the expert report.               However, he

also stated that "it became apparent to [him] that [he] was not

getting any better" on July 23, 2015, and that he felt he needed

"another physician" at that time.          Perez also consulted with his

attorney in person sometime in February 2016, but implied that

they did not discuss his continued poor physical condition.

     These   conflicting   facts   obviously       raised      factual     issues

concerning the discovery rule that could only be determined through

an evidentiary hearing and the crucible of cross-examination.

Therefore, we reverse and remand for a Lopez hearing. In remanding

this matter, we do not suggest a preferred result, but only that

the trial court should conduct a hearing to develop the facts and

record upon which to base a reasoned decision on the issue of the

accrual of plaintiffs' cause of action against defendants.

     After the trial court resolves the issue on remand of when

plaintiffs' claim accrued, its next and separate task will be "to

determine whether a notice of claim was filed within ninety days."

                                     7                                    A-1857-16T2
Beauchamp, 
164 N.J. at 118.   If the court finds that the claim was

untimely, it must next "decide whether extraordinary circumstances

exist justifying a late notice."     Id. at 118-19.    Because the

facts surrounding these issues were also contested and, therefore,

cannot be addressed on the basis of the parties' certifications,

the evidentiary hearing should also encompass these issues.

     Reversed and remanded.   We do not retain jurisdiction.




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