NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-0052-19T1
AKINTOLA HANIF MARTIN,
Plaintiff-Appellant,
v.
UNIVERSITY HOSPITAL NEWARK, RUTGERS BIOMEDICAL AND HEALTH SCIENCES, RYAN MCCABE, AMBIKA ROY, ANDREA HIDALGO, ILYA OSTROVSKY, CHRISTINE GERULA, HARSH P. SULE, ALFONSO WALLER, PALLAVI SOLANKI, GARRASTAZU NEYSA, JUDITH SABOL, DIANE TAYLOR, MONINA LOPEZ, NIZAR SOUAYAH, MITCHEL QUEANO, KYRA MAFFET, CHRISTIANE MORTAGUA, SCOTT ZUCKERMAN, DENISE ALLISON, HUEY-JEN LEE, and OBRYANT SEPULVEDA,
Defendants-Respondents,
and STATE OF NEW JERSEY, ERIC RUSH, SARAH ARNOLD, FLORENCE PIERRE, ABDUL ALCHAKI, BLANDINA BILLONES, ANUSHA BOYANPALLY, JACINTA ENWOROM, MERICA MCCALLA, OLUWOLE A. TAIRU, SABA KAHN, NEHA KOTHARI, DEVASHIN SHAH, TAREK JAZMATI, and JOHN SABATINO,
Defendants. ________________________________
Argued October 14, 2020 – Decided November 24, 2020
Before Judges Fisher, Gilson, and Gummer.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-0127-19.
William Stoltz argued the cause for appellant (Law Offices Rosemarie Arnold, attorneys; Sheri Breen and William Stoltz, on the briefs).
William J. Buckley argued the cause for respondents University Hospital Newark, Ambika Roy, Neysa Garrastazu, Judith Sabol, Diane Taylor, Monina Lopez, Mitchel Queano, Kira Maffett, Christiane Mortagua, Scott Zuckerman, Denise Allison, and Obryant Sepulveda (Schenck, Price, Smith & King, LLP, attorneys; William J. Buckley, of counsel and on the brief).1
1 Plaintiff named Garrastazu Neysa and Kyra Maffett as defendants. Their actual names are Neysa Garrastazu and Kira Maffett. A-0052-19T1 2 Beth A. Hardy argued the cause for respondents Rutgers Biomedical and Health Sciences, Ilya Ostrovsky, and Harsh P. Sule (Farkas & Donohue, LLC, attorneys; David C. Donohue, of counsel; Beth A. Hardy, on the brief).
Patricia M. Wason argued the cause for respondent Ryan McCabe (MacNeill, O'Neill & Riveles, LLC, attorneys; Gary L. Riveles and Patricia M. Wason, of counsel and on the brief).
John D. North argued the cause for respondent Ryan McCabe on counts five through seven (Greenbaum, Rowe, Smith & Davis, LLP, attorneys; John D. North and Irene Hsieh, of counsel and on the brief).
Janet L. Poletto argued the cause for respondents Andrea Hidalgo, Christine Gerula, Alfonso Waller, Pallavi Solanki, and Nizar Souayah (Hardin, Kundla, McKeon & Poletto, P.A., attorneys; Janet L. Poletto, of counsel and on the brief; Robert E. Blanton, Jr., on the brief).
Russell J. Malta argued the cause for respondent Huey-Jen Lee (Orlovsky, Moody, Schaaff, Conlon & Gabrysiak, attorneys; Paul F. Schaaff, Jr., of counsel; Russell J. Malta, on the brief).
PER CURIAM
Complaining about defendants' treatment of him after he had a stroke,
plaintiff Akintola Hanif Martin appeals the trial judge's orders reconsidering
and vacating his prior order granting plaintiff's motion for leave to file a late
tort claims notice and dismissing with prejudice plaintiff's tort causes of action
A-0052-19T1 3 for failure to file timely a tort claim notice as required by the New Jersey Tort
Claims Act, N.J.S.A. 59:1-1 to 14-4 (the TCA). Finding that the trial judge
erred in not applying correctly the required legal analysis, not making all
relevant factual determinations, and not conducting an evidentiary hearing
before dismissing with prejudice plaintiff's tort claims, we reverse and remand.
Because this case comes to us on an appeal of the trial judge's dismissal
with prejudice of plaintiff's tort claims, we assume all facts alleged by plaintiff
to be true and give him the "benefit of all inferences that may be drawn from
those facts." Feinberg v. N.J. Dep't of Envtl. Prot., 137 N.J. 126, 129 (1994).
On January 6, 2017, plaintiff had a stroke in his apartment. When he
regained consciousness, he could not walk or talk, but was able to crawl into
the hallway of his building, where neighbors found him and called 911. When
defendants Ryan McCabe and Eric Rush (the EMT defendants) arrived, they
did not identify themselves as being affiliated with a public entity nor wore
anything that revealed that affiliation. They accused plaintiff of being on
drugs, even though his neighbors told them that he was not on drugs, asked
him to stand, and kicked him when he did not rise. They eventually placed
him on a stretcher, restrained him, and moved him into an ambulance.
Plaintiff did not notice any markings on the ambulance. Without providing
A-0052-19T1 4 any stroke-related testing, medication, or treatment, the EMT defendants took
him to defendant University Hospital Newark. 2
At the hospital, the EMT defendants told the doctors, nurses, and other
hospital staff members 3 who were treating plaintiff that plaintiff was on drugs
and had no stroke symptoms. The treating defendants, who did not provide
any indication that they were affiliated with a public entity, treated plaintiff
like a drug-overdose patient. They put him in restraints, gave him
antipsychotic and antianxiety medication, and placed him in a corner of the
emergency room. They did not perform any stroke screening or diagnostic
tests or administer medication to treat a stroke for at least five to six hours. A
CT scan, which was read the following day, revealed that plaintiff had had a
stroke.
Plaintiff remained at the hospital until January 20, 2017, when he was
discharged to the Kessler Institute for Rehabilitation for in-patient treatment.
2 Plaintiff alleges that Rutgers Biomedical and Health Sciences owns and operates University Hospital Newark and that the State of New Jersey owns and operates each of those entities. 3 In his complaint plaintiff identified as "treating defendants," among others, Ambika Roy, Andrea Hidalgo, Ilya Ostrovsky, Christine Gerula, Harsh P. Sule, Alfonso Waller, Abdul Alchaki, Pallavi Solanki, Neysa Garrastazu, Judith Sabol, Diane Taylor, Monina Lopez, Nizar Souayah, Mitchel Queano, Kira Maffett, Christiane Mortagua, Scott Zuckerman, Denise Allison, Huey- Jen Lee, and Obryant Sepulveda. A-0052-19T1 5 He stayed at Kessler until February 21, 2017, when he was transferred to
another facility. He remained at that facility for approximately three weeks.
He later received treatment from a neurologist.
According to plaintiff, the unnecessary delay in the treatment of his
stroke caused him to suffer catastrophic injuries, including severe brain
damage, total paralysis of his right arm, weakness in his right leg that requires
him to use a cane, a facial droop on his right side, uncontrollable drooling, and
severe aphasia. For three months after his stroke, plaintiff could not speak and
had great difficulty moving. He was not able to conduct a coherent
conversation until sometime in November 2018.
On November 12, 2018, plaintiff spoke about "his situation" with a
friend, who advised him to consult with a lawyer because the people who had
treated him might have done something wrong. Plaintiff does not recall that
anyone previously advised him that the delay in his treatment could have
caused his injuries. After his conversation with his friend, plaintiff obtained a
copy of his hospital records and began to look for an attorney.
A-0052-19T1 6 On January 3, 2019, plaintiff submitted to the hospital, the State, Rutgers
New Jersey Medical School, and Rutgers University 4 a notice of claim
pursuant to N.J.S.A. 59:8-1. He based the claim on his allegations concerning
defendants' failure to diagnose or treat timely his stroke, the assault by the
EMT defendants, and the negligent hiring or supervision of employees. He
asserted in his claim that he did not discover until November 12, 2018, that th e
delay in his diagnosis or treatment had caused his injuries.
On January 4, 2019, plaintiff filed a complaint. He claimed that
defendants had breached their duty of care to him by failing to provide to him
appropriate treatment in a timely manner and were strictly or absolutely liable
for his injuries. He contended that defendant corporate entities were
vicariously liable for the individual defendants and directly liable for
negligently hiring, retaining, or training them. He asserted that, by kicking
him, the EMT defendants had "inflicted the torts of assault and battery." He
4 Rutgers Biomedical and Health Sciences indicated in an answer that plaintiff had improperly named as defendants Rutgers New Jersey Medical School and Rutgers University. Plaintiff subsequently amended his complaint to name Rutgers Biomedical and Health Sciences in lieu of those entities. A-0052-19T1 7 accused the EMT defendants and the treating defendants of violating his civil
rights, citing N.J.S.A. 10:6-2.5
On the same date plaintiff also filed a motion to file a late notice of
claim pursuant to N.J.S.A. 59:8-9. Plaintiff argued that his notice of claim was
timely because the discovery rule tolled the accrual of his claims until
November 12, 2018, when his friend suggested he contact a lawyer.
Alternatively, plaintiff contended that he should be permitted to file a late
notice of claim because he had demonstrated extraordinary circumstances. In
support of that motion, plaintiff submitted his affidavit, in which he attested to
the factual allegations contained in his complaint.
In his oral opinion, the trial judge stated his concern that plaintiff had
not submitted a statement of a physician indicating that "there was severe
cognitive impairment . . . . If we have that I think we have extraordinary
circumstances." The trial judge stated his belief that he would not have to
reach "the tolling issue" if he found extraordinary circumstances: "instead of
going down that road with the so called unknown friend and having discovery
on any contacts he had with the friend, . . . at the end of the day at the bottom
line of this it's his cognitive abilities during this time period." The trial judge
5 That cause of action, contained in the fifth count, was not dismissed and is not at issue in this appeal. A-0052-19T1 8 acknowledged that if plaintiff did not establish extraordinary circumstances,
"we could further explore the tolling issue" and indicated that he was "not
satisfied on this record there's enough here to toll, because I would need more
information on the contact with the friend." He also found that "there are a ton
of fact questions" and that defendants would not be prejudiced by allowing the
late submission.
The trial judge initially held that he would "technically" deny the motion
without prejudice "subject to the plaintiff submitting that [physician]
certification." Plaintiff's counsel asked the trial judge to grant plaintiff's
motion "subject to receiving" plaintiff's supplemental submission. Stating that
"[w]e can do it either way," the trial judge agreed to plaintiff's counsel's
request to grant the motion subject to receiving the supplemental submission.
In an order dated March 15, 2019, the trial judge deemed plaintiff's notice of
claim timely for purposes of N.J.S.A. 59:8-8 "PROVIDED, HOWEVER
THAT" plaintiff serve the noticed parties "with a medical expert report
certifying [plaintiff's] medical conditions from January 6, 2017 until
November 12, 2018 . . . ."
Plaintiff responded to that directive by submitting a certification of
neurologist Arthur Rothman. In his certification Dr. Rothman confirmed that
A-0052-19T1 9 plaintiff had total paralysis of his right arm, weakness in his right leg requiring
use of a cane, a facial droop on the right side of his face, memory loss, and
Broca's aphasia, which caused him to speak "haltingly, with great effort and
with paraphasic errors." He reported that plaintiff had told him that for the
first month after his stroke, he was not able to speak or write and that he was
not able to speak "in complete, but halting sentences until approximately
November 2018." He also stated that plaintiff had told him that his treating
physicians had not advised him that the delay in his diagnosis or treatment
may have caused the severity of his injuries.
Reviewing plaintiff's treatment records, Dr. Rothman discerned that
when plaintiff was admitted to Kessler on January 20, 2017, he was completely
unable to communicate or understand anyone. After receiving extensive in-
patient physical, occupational, and speech therapy, he was discharged on
February 21, 2017, but continued to suffer from "severe aphasic difficulties,
along with other serious physical impediments" and needed additional speech
therapy "to full[y] recover his ability to initiate speech spontaneously and to
communicate at the sentence level." Dr. Rothman determined that when
plaintiff began to be treated by Dr. Venkatraman on April 11, 2018, plaintiff
still had memory loss and "aphasia related speech issues." Dr. Rothman found
A-0052-19T1 10 no indication that any treating physician had advised plaintiff that his injuries
were caused potentially by the delay in diagnosis and treatment of his stroke.
Dr. Rothman opined that plaintiff "continues to suffer from brain
damage, severe aphasia, as well as a laundry list of other debilitating injuries
as set forth above, which made getting around and talking about a potential
malpractice claim all but impossible." He concluded that: (i) there was "no
way that a lay person [like plaintiff] would have known that his condition was
caused by the delay in diagnosis and/or treatment of his stroke . . . rather than
being a natural consequence of . . . a stroke"; (ii) plaintiff would not have
known about a potential claim against defendants "until someone with
sufficient expertise in the fields of neurology and treatment of strokes advised
him of such"; and (iii) because of his injuries, plaintiff "was not able to fully
understand or communicate the circumstances of his injury until November
2018." He based the last conclusion in part on his belief that a stroke patient
with severe aphasia "optimally recover[s] a certain level of ability to
communicate within a 1- to 2-year period . . . . This is why [plaintiff] was not
able to understand the causes and nature of his disabilities and their
relationship to his treatment . . . until November 2018, almost 2 years after his
stroke."
A-0052-19T1 11 The EMT defendants, hospital, and some of the treating defendants
submitted a written request to the trial judge, asking for limited discovery
regarding the timeliness of plaintiff's notice of claim. They asserted that some
of them had not been served with plaintiff's motion to file a late notice of
claim and, thus, had been deprived of an opportunity to oppose it. They also
contended that Dr. Rothman's certification was deficient, covering only six
months of the twenty-two-month period set forth in the order, and failed to
establish extraordinary circumstances justifying plaintiff's late filing of his
notice of claim. In response, the trial judge directed defendants to file a
motion.
Defendant McCabe moved for reconsideration of the March 15, 2019
order and dismissal of the tort claims against him. The other defendants
followed suit, moving or cross-moving for reconsideration or for dismissal
with prejudice of plaintiff's tort claims for failure to file timely a notice of
claim. Defendants argued, among other things, that Dr. Rothman's
certification failed to establish extraordinary circumstances that would justify
A-0052-19T1 12 the late submission of a notice of claim and that plaintiff's Facebook posts
undermined plaintiff's assertion that he was cognitively impaired. 6
Rejecting plaintiff's argument that defendants' motions were untimely,
the trial judge considered defendants' motions and held that the accrual date of
plaintiff's claim was January 6, 2017, the date plaintiff had the stroke. He
based that conclusion on his factual findings that on that date, plaintif f knew:
he had had a stroke; the EMT defendants had accused him of being on drugs
and had kicked him; the "EMT defendants and the hospital delayed his
treatment" and did not conduct appropriate screening or give him correct
medication; and the treating physicians placed him in restraints like a drug-
overdose patient and ignored him for six to seven hours. He declined to apply
the discovery rule to toll the accrual date until November 12, 2018, the date of
plaintiff's conversation with his friend, because "there's a failure to explain
how that conversation revealed any new facts that he previously did not
possess." The trial judge viewed the "outcome" of that conversation as
"simply a friend advising him to go see a lawyer." The trial judge concluded
that based on plaintiff's "social media posts . . . there is cognitive ability to
understand what his condition is . . . at the latest in the spring or summer [of
6 Defendants referenced Facebook posts from March and June 2017 and October 2018. A-0052-19T1 13 2017]. And I think it's just too late." The trial judge also found based on the
social media posts that plaintiff had "knowledge that this was Rutgers." The
trial judge acknowledged Dr. Rothman's conclusions, but nevertheless
determined that "I just don't think that's enough to establish this evidence of
cognitive inability to understand." The trial judge granted defendants'
motions, vacated the March 15, 2019 order, and dismissed with prejudice
plaintiff's tort claims for failure to file timely a notice of claim.
Plaintiff appeals, arguing that the trial judge erred in: (i) considering
defendants' untimely motions; (ii) not tolling the accrual date until November
2018; and (iii) failing to find that extraordinary circumstances justified
allowing plaintiff to file a late notice of claim.
As a threshold matter, we find unpersuasive plaintiff's argument that
defendants' motions were untimely under Rule 4:49-2. The trial judge initially
was inclined to deny plaintiff's motion without prejudice, but at plaintiff's
request granted it provisionally, as set forth in bold capital letters in the order.
The unambiguous wording of the order establishes that the judge did not
intend it to be a final order on the timeliness of plaintiff's notice of claim, but
instead gave plaintiff an opportunity to supplement his submissions on that
A-0052-19T1 14 issue with a medical expert report. Thus, the time limitation of Rule 4:49-2
does not apply.
We review decisions to grant or deny motions to file late notices of
claim pursuant to N.J.S.A. 59:8-9 under an abuse-of-discretion standard. D.D.
v. Univ. of Med. & Dentistry of N.J., 213 N.J. 130, 147 (2013); see also
O'Donnell v. N.J. Tpk. Auth., 236 N.J. 335, 344 (2019) (noting N.J.S.A. 59:8-
9 leaves the determination of whether a late notice may be filed to "the
discretion of a judge of the Superior Court"). An abuse of discretion occurs
when a trial judge's decision "was not premised upon consideration of all
relevant facts, was based upon consideration of irrelevant or inappropriate
factors, or amounts to a clear error in judgment." Masone v. Levine, 382 N.J.
Super. 181, 193 (App. Div. 2005); see also State v. S.N., 231 N.J. 497, 515
(2018). A trial judge's interpretation and application of the TCA to undisputed
facts is a legal determination that we review de novo. See Jones v. Morey's
Pier, Inc., 230 N.J. 142, 153 (2017). We more closely examine those cases in
which a filing of a late notice of claim was denied, "'to the end that wherever
possible cases may be heard on their merits, and any doubts which may exist
should be resolved in favor of the application.'" S.E.W. Friel Co. v. N.J. Tpk.
A-0052-19T1 15 Auth., 73 N.J. 107, 122 (1977) (quoting Viles v. State, 423 P.2d 818, 821 (Cal.
1967)); see also Feinberg, 137 N.J. at 134.
The TCA governs when public entities are liable for their torts. Nieves
v. Adolf, 241 N.J. 567, 571 (2020). To proceed with a tort claim against a
public entity, a plaintiff must file with the public entity a notice of claim
within ninety days of the action's accrual. O'Donnell, 236 N.J. at 345; see also
N.J.S.A. 59:8-8. A court may grant a plaintiff who has not met that deadline
leave to file a late notice of claim within one year of the accrual of the claim,
provided the plaintiff demonstrates extraordinary circumstances that prevented
a timely filing and the public entity has not been substantially prejudiced by
the delay. 7 Id. at 346; see also N.J.S.A. 59:8-9. The failure to file "within
ninety days under normal circumstances or within one year under
extraordinary circumstances," bars a plaintiff from bringing a tort claim
against a public entity. Ben Elazar v. Macrietta Cleaners, Inc., 230 N.J. 123,
133 (2007); see also N.J.S.A. 59:8-8(a). These TCA notice requirements
"were not intended as a 'trap for the unwary.'" Lowe v. Zarghami, 158 N.J.
7 A defendant must produce and demonstrate substantial prejudice under N.J.S.A. 59:8-9. See Mendez v. S. Jersey Transp. Auth., 416 N.J. Super. 525, 535 (App. Div. 2010). Because defendants do not argue that they were substantially prejudiced by any delay in the filing of plaintiff's claim and did not appeal the trial judge's finding of no prejudice, we do not consider the prejudice element of N.J.S.A. 59:8-9. A-0052-19T1 16 606, 629 (1999) (quoting Murray v. Brown, 259 N.J. Super. 360, 365 (Law
Div. 1991)).
Our Supreme Court requires trial judges determining the timeliness of a
notice of claim under N.J.S.A. 59:8-8 to perform a "sequential analysis."
Bayer v. Twp. of Union, 414 N.J. Super. 238, 258 (App. Div. 2010); see also
Beauchamp v. Amedio, 164 N.J. 111, 118 (2000). The trial judge first must
determine when the claim accrued. Bayer, 414 N.J. Super. at 258. The trial
judge next must determine if the notice of claim was filed within ninety days
of the accrual date, and, if not, whether extraordinary circumstances justify the
late notice. Id. at 258.
Defendants contend that plaintiff's claims accrued on the day he had the
stroke, January 6, 2017, while plaintiff argues the discovery rule tolled the
accrual of his claims until November 2018 conversation with his friend. In
determining when a cause of action accrues for purposes of the TCA notice
requirement, "common law principles governing accrual of a tort claim apply."
Ben Elazar, 230 N.J. at 127. Generally, the date of accrual for a tortious act is
the date on which the tortious act occurred. Bayer, 414 N.J. Super. at 258.
The discovery rule tolls the accrual date when "the victim either is unaware
that he has been injured or, although aware of an injury, does not know that a
A-0052-19T1 17 third party is responsible." Id.; see also Ben Elazar, 230 N.J. at 127 (finding
that "[u]nder traditional equitable principles of our discovery rule, the date of
the accrual of a claim . . . may be tolled when plaintiffs lack knowledge of
fault of a third party").
Those accrual concepts apply in medical-malpractice cases, which
"generally accrue[s] on the date that the alleged act or omission occurred."
Baird v. Am. Med. Optics, 155 N.J. 54, 65 (1998). The discovery rule tolls an
accrual date in medical-malpractice cases "when injured parties reasonably are
unaware that they have been injured, or, although aware of an injury, do not
know that the injury is attributable to the fault of another." Id. at 66. "Critical
. . . is the injured party's awareness of the injury and the fault of another."
Ibid; see also Caravaggio v. D'Agostini, 166 N.J. 237, 246 (2001) (focusing on
"whether the facts presented would alert a reasonable person, exercising
ordinary diligence, that he or she was injured due to the fault of another").
Generally, discovery-rule issues "will not be resolved on affidavits or
depositions since demeanor may be an important factor where credibility is
significant." Lopez v. Swyer, 62 N.J. 267, 275 (1973). If credibility is
involved, a trial court should conduct an evidentiary hearing outside the
presence of the jury. Ibid.; see also The Palisades at Fort Lee Condo. Ass'n,
A-0052-19T1 18 Inc. v. 100 Old Palisade, LLC, 230 N.J. 427, 452 (2017) (remanding case to
trial court to conduct a Lopez hearing to examine evidence presented and "in
its discretion, take testimony from relevant witnesses").
Once the accrual date has been determined and it has been found the
plaintiff did not file the notice of claim within ninety days of the accrual date,
the judge must then decide whether extraordinary circumstances justified the
delay. Bayer, 414 N.J. Super. at 258. In determining whether extraordinary
circumstances justify a delay in filing the notice of claim, a trial judge must
focus on evidence of a plaintiff's situation during the ninety-day time period
following the accrual date. See D.D., 213 N.J. at 151. Thus, it is critical for
the judge to determine first the accrual date in order to assess the correct
ninety-day time period. A judge then "must consider the collective impact of
the circumstances offered as reasons for the delay." R.L. v. State-Operated
Sch. Dist., 387 N.J. Super. 331, 341 (App. Div. 2006); see also Mendez, 416
N.J. Super. at 533.
Medical conditions meet the extraordinary-circumstances standard if
they are "severe or debilitating" and have a "consequential impact on the
claimant's very ability to pursue redress and attend to the filing of a claim."
D.D., 213 N.J. at 149-50; see also Mendez, 416 N.J. Super. at 533 (noting that
A-0052-19T1 19 "extraordinary circumstances can be found based on the severity of a party's
injuries"). The question for the trial court is whether, when viewed
objectively, a severe or debilitating injury impaired the plaintiff's ability to act
during the relevant ninety-day time period. Id. at 151. Credibility issues
warrant a hearing so that the trial judge can make findings of fact. Where
there is a material factual dispute as to whether a medical condition was severe
enough to impact significantly a plaintiff's ability to pursue legal action during
the ninety-day period following the accrual date, the trial judge should conduct
an evidentiary hearing.
As Justice Long explained twenty years ago in Beauchamp,
Although occasionally the facts of a case may cut across those [accrual date and extraordinary circumstances] issues, they are entirely distinct. It is a common and regrettable occurrence for accrual and extraordinary circumstances to be treated as interchangeable and for courts and litigants to overlook the primary question of accrual and directly confront the ultimate question of extraordinary circumstances. What is important is to understand the framework of a Tort Claims notice analysis and to follow it.
[164 N.J. at 119.]
Unfortunately, the trial judge failed to follow that framework.
A-0052-19T1 20 The first question that had to be answered by the trial judge was when
plaintiff's claims accrued. For the medical-malpractice claims, the decisive
determination on that question is when plaintiff discovered or by the exercise
of reasonable diligence should have discovered that his injuries were causally
related to defendants' delay in diagnosing and treating his stroke. The trial
judge never made that determination.
In his March 15, 2019 decision granting plaintiff's motion, the t rial judge
chose not to follow the required "sequential analysis." Instead, he leapfrogged
over the first step, declining to determine the accrual date, and focused on
extraordinary circumstances. He indicated that if plaintiff established
exceptional circumstances with a supplemental medical-expert submission, he
would not have to reach the issue of whether the discovery rule tolled the
accrual date. Acknowledging the existence of a "ton of fact questions," he
stated that if plaintiff failed to establish exceptional circumstances, he would
"further explore the tolling issue" and "would need more information on the
contact with the friend."
In his subsequent decision granting defendants' motions, the trial judge,
with no additional information regarding plaintiff's conversation with his
friend and no further exploration of the tolling issue, concluded that the
A-0052-19T1 21 accrual date was the day plaintiff had the stroke. He based that conclusion on
his finding that plaintiff on the day of his stroke knew that he had had a stroke
and that the "EMT defendants and the hospital [had] delayed his treatment."
The trial judge failed to make the critical determination as to whether and
when plaintiff knew that defendants' delay had caused his injuries. The only
evidence before the trial judge on that issue was plaintiff's affidavit and Dr.
Rothman's certification. In his affidavit, plaintiff stated that he did not
remember being told by anyone that the delay in treatment could have caused
the extent of his injuries "until I was advised as such by my friend on
November 12, 2018." In his certification, Dr. Rothman determined that no one
had told plaintiff that the delay in treatment could have caused his injuries and
opined that plaintiff would not have known that his condition was caused by
defendants' delay in diagnosing or treating his stroke "rather than being a
natural consequence of suffering a stroke" unless someone "with sufficient
expertise in the fields of neurology and treatment of strokes" had told him.
Without conducting a hearing that would have enabled him to assess
plaintiff's and Dr. Rothman's credibility, the trial judge apparently gave little
or no weight to their sworn statements and instead focused on plaintiff's social
media posts and what those posts indicated about plaintiff's cognitive capacity.
A-0052-19T1 22 Whatever those posts may have indicated regarding plaintiff's cognitive
capacity, which was the focus of the trial judge's premature extraordinary-
circumstances analysis, they shed no light on whether he knew or should have
known that his condition was caused by defendants' delay in diagnosing and
treating his stroke.
This is not a case in which the fault of a third party is apparent. See
Caravaggio, 166 N.J. at 246 (giving as an example wrong tooth being
extracted). Plaintiff may have had, as the trial judge found, the "cognitive
ability to understand what his condition is" in the spring or summer of 2017.
But that basic understanding of his condition does not mean that plaintiff had
the ability or "'reasonable medical information'" to link his condition to the
actions or inactions of defendants. Kendall v. Hoffman-La Roche, Inc., 209
N.J. 173, 193 (2012) (quoting Vispisiano v. Ashland Chem. Co., 107 N.J. 416,
435 (2012)). Plaintiff reasonably could have understood that his condition was
caused entirely by the stroke and may not have known or had reason to know
that defendants' delay in diagnosing and treating the stroke caused or
contributed to his condition.
Decisions regarding the accrual date and the existence of extraordinary
circumstances required the resolution of a number of factual disputes between
A-0052-19T1 23 the parties concerning plaintiff's medical condition, cognitive status, ability to
pursue his claims, and knowledge he had or should have had about his
condition, his claims, and defendants' public status. The resolution of those
disputes called for credibility determinations that could not be made without a
hearing. Instead of conducting a hearing, the trial judge decided on the papers
that plaintiff's social media posts sufficiently discredited his and Dr.
Rothman's sworn statements regarding his cognitive capacity and dismissed
with prejudice plaintiff's tort claims. That was error.
In his findings, the trial judge did not differentiate between plaintiff's
malpractice claims and his assault-and-battery claims against the EMT
defendants. Plaintiff does not appear to argue that the discovery rule applies to
the determination of the accrual date on the assault-and-battery claims.
Plaintiff knew that the EMT defendants had kicked him on January 6, 2017.
Neither plaintiff nor Dr. Rothman assert that plaintiff was unaware of the
injuries caused by the alleged assault. Even if January 6, 2017, is the correct
accrual date for the assault-and-battery claims, the judge's error in not
conducting a hearing to resolve the factual disputes regarding the existence of
extraordinary circumstances applies equally to plaintiff's assault-and-battery
A-0052-19T1 24 claims. Accordingly, we also reverse the trial judge's order dismissing those
claims.
Reversed and remanded for an evidentiary hearing and new
determination by the court. We do not retain jurisdiction.
A-0052-19T1 25