Helen Matynska v. Steven Fried, M.D. et als

SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).
 

Helen Matynska v. Steven Fried, M.D. et als (A-83-2001)
 
 
Argued September 23, 2002 -- Decided December 18, 2002

PER CURIAM
 
Helena Matynska suffered complications following hip replacement surgery that she contends resulted from negligent post-operative care. Matynska filed suit against Robert Wood Johnson University Hospital, eleven doctors and nurses, and John Doe, M.D. and Jane Roe, R.N. Dr. Mark Feierstein was not a named defendant, although, for about three days after her surgery, Dr. Feierstein covered hospital rounds for his partner, Matynska s treating orthopedic surgeon, Dr. Steven Fried.

Dr. Feierstein s name appears twice in Matynska s hospital chart, yet she claims that she was unable to timely know that he was in any way responsible for her treatment because she never met him, was not advised that he would be covering for Dr. Fried, and because the hospital chart references to Dr. Feierstein did not disclose his role in her care and treatment.

Two years after the institution of suit, and four years after the alleged negligence, Matynska filed a motion to amend her complaint to name Dr. Feierstein as a direct defendant in place of John Doe, M.D., pursuant to the fictitious-name rule, R 4:26-4. The trial court denied the motion and, on appeal, the Appellate Division affirmed, concluding that if Matynska had undertaken adequate investigation and preparation, she would have discovered Dr. Feierstein s involvement before the expiration of the statute of limitations or within reasonable time to comply with fictitious-party practice.

The Supreme Court granted certification.

HELD: Helena Matynska s motion to amend her complaint to name Dr. Feierstein as a defendant pursuant to the fictitious-name rule was properly denied. Her efforts to discover the role of all parties complicit in her injurious post-operative care were wholly inadequate, specifically in relation to Dr. Feierstein.
 
1. Dr. Feierstein s name appears twice in the hospital record as a physician participating in Matynska s care. She had an obligation to investigate all potentially responsible parties in a timely manner but failed to do so. Because Matynska failed to cross the due diligence threshold, the lower courts properly denied her the right to amend her complaint. (Pp. 2-3)

2. The Court notes its disapproval of the tactics of Dr. Fried and his attorney. Dr. Fried s answers to interrogatories and responses to deposition questioning were obfuscatory and arguably calculated to mislead Matynska regarding Dr. Feierstein s connection to the case, thus paving the way for an empty chair defense. In his interrogatory answers, Dr. Fried failed to identify members of his group or acknowledge that Dr. Feierstein covered him on the dates in question. (P. 4)

3. While the Court abhors the kind of tactics used by the defense, Matynska failed in her primary obligation to diligently and timely investigate the identity of those responsible for her negligent care and treatment. Thus, the defense s tactics are immaterial to its disposition. Nevertheless, the Court cautions attorneys to avoid such conduct or risk potential consequences. (P. 4)
Judgment of the Appellate Division is AFFIRMED.
 
CHIEF JUSTICE PORITZ and JUSTICES, COLEMAN, LONG, VERNIERO, LaVECCHIA,
ZAZZALI, and ALBIN join in this PER CURIAM opinion.
 
 
 
 

 
 
 
SUPREME COURT OF NEW JERSEY
A- 83 September Term 2001
 
 
HELENA MATYNSKA,

Plaintiff-Appellant,

v.
 
STEVEN H. FRIED, M.D., MICHAEL AZZONI, M.D., DAVID ADAMS, M.D. and ERWIN MERMELSTEIN, M.D.,

Defendants-Respondents,

and

MARC CARDLIA, M.D., GERALD WEISFOGEL, M.D., KATHLEEN REED, R.N., KAILAS TANNA, L.P.N., LYNANN WALLACE, R.N., CELESTE ARDONA, L.P.N., ROBERT WOOD JOHNSON UNIVERSITY HOSPITAL, JOHN DOES, M.D. (1 thru 15) and JANE DOES, R.N. (1 thru 15), (said names being fictitious for other medical personnel who treated plaintiff as true identities are unknown,

Defendants.

Argued September 23, 2002 Decided December 18, 2002

On certification to the Superior Court, Appellate Division.

Richard Galex argued the cause for appellant (Galex, Tortoreti & Tomes, attorneys; Mr. Galex and Frances A. Tomes, on the briefs).

Gary L. Riveles argued the cause for respondent Steven H. Fried, M.D. (Dughi, Hewit & Palatucci, attorneys).

Kenneth M. Brown argued the cause for respondents Michael Azzoni, M.D. and David Adams, M.D. (Reiseman Sharp Brown & Rosenberg, attorneys).

Paul F. Schaaff, Jr. argued the cause for respondent Erwin Mermelstein, M.D. (Orlovsky, Moody & Schaaff, attorneys; Jill R. O Keeffe, on the brief).

PER CURIAM

Plaintiff, Helena Matynska suffered complications following hip replacement surgery, which she attributed to negligent post-operative medical treatment. She filed a complaint against Robert Wood Johnson University Hospital, eleven doctors and nurses, and John Doe, M.D. and Jane Doe, R.N. Not named as a defendant was Dr. Mark Feierstein, who for nearly three days after her surgery, covered hospital rounds for his partner, Matynska s orthopedic surgeon, Dr. Steven H. Fried.
Although Dr. Feierstein s name appeared twice in Matynska s hospital chart, she claims that she did not timely know that he was in any way responsible for her treatment because she never met him, was not advised that he would be covering for Dr. Fried, and because the brief and vague hospital chart references to Dr. Feierstein did not disclose his role in her care and treatment.
Two years after the institution of this action, and four years after the alleged negligence, Matynska filed a motion to amend that complaint to name Dr. Feierstein in place of John Doe, M.D. pursuant to R. 4:26-4. The trial court denied the motion and the Appellate Division affirmed, essentially concluding that if Matynska had undertaken adequate investigation and preparation, she would have discovered Dr. Feierstein s involvement prior to the expiration of the statute of limitations or within a reasonable time thereof. We granted certification, 171 N.J. 442 (2002), and now affirm.
The Appellate Division was correct in concluding that Matynska s efforts to discover the role of all parties complicit in her injury were wholly inadequate at least insofar as Dr. Feierstein was involved. As the Appellate Division noted, the doctor s name appeared twice in Matynska s hospital records as a physician having participated in her care. Even a cursory look at the telephone book or a call to Dr. Fried or the hospital would have uncovered Dr. Feierstein s status as a partner of Dr. Fried, thus alerting Matynska to his role. She had an obligation to investigate all potentially responsible parties in a timely manner but did not do so. In short, Matynska failed to cross the due diligence threshold, and thus the lower courts properly denied her the right to amend the complaint.
That is not to suggest that we approve of the tactics of Dr. Fried and his counsel. Sharp practice came into play in the answers to interrogatories and in Dr. Fried s dissembling responses to the questions propounded during depositions. Those answers, although late in the game, were given prior to Matynska s motion to add Dr. Feierstein as a defendant. They were obfuscatory, and arguably calculated to mislead Matynska regarding Dr. Feierstein s connection to the case, thus paving the way for the so-called empty chair defense. Emblematic was Dr. Fried s refusal in interrogatory answers to even identify the members of his group or to acknowledge that Dr. Feierstein was covering for him on the dates in question.
We abhor such tactics, which, in an appropriate case, could well be considered lulling, if not deliberate concealment. In this case, because Matynska failed in her primary obligation to investigate Dr. Feierstein s involvement in a diligent and timely fashion, the defense s later tactics are not material to our disposition. We nevertheless caution attorneys to avoid such conduct or risk the potential consequences.
The judgment of the Appellate Division is affirmed.
CHIEF JUSTICE PORITZ and JUSTICES COLEMAN, LONG, VERNIERO, LaVECCHIA, ZAZZALI, and ALBIN join in this opinion.

SUPREME COURT OF NEW JERSEY

NO. A-83 SEPTEMBER TERM 2001
ON CERTIFICATION TO Appellate Division, Superior Court

HELENA MATYNSKA,

Plaintiff-Appellant,

v.

STEVEN H. FRIED, M.D.,
MICHAEL AZZONI, M.D., DAVID
ADAMS, M.D. and ERWIN
MERMELSTEIN, M.D.,

Defendants-Respondents.

DECIDED December 18, 2002
Chief Justice Poritz PRESIDING
OPINION BY Per Curiam
CONCURRING OPINION BY
DISSENTING OPINION BY

CHECKLIST AFFIRM
CHIEF JUSTICE PORITZ X
JUSTICE COLEMAN X
JUSTICE LONG X
JUSTICE VERNIERO X
JUSTICE LaVECCHIA X
JUSTICE ZAZZALI X
JUSTICE ALBIN X
TOTALS 7