In its unpublished opinion filed on April 25, 2019, the Superior Court of New Jersey Appellate Division (“New Jersey Appellate Court”) held that a recent immigrant to the United States who suffered a life-threatening pelvic abscess and serious recurrent infections after delivering her baby by Cesarean section that allegedly were due to medical negligence during the delivery had shown extraordinary circumstances within the meaning of N.J.S.A. 59:8-9 that excused her failure to file a notice of claim within ninety days of the accrual of her New Jersey medical malpractice claim.
New Jersey Tort Claims Act
The defendant hospital where the plaintiff gave birth is a public entity for which the provisions of the New Jersey Tort Claims Act (“TCA”) apply. N.J.S.A. 59:8-8 provides that when a claimant fails to file within ninety days of accrual of a claim he or she “shall be forever barred from recovering against a public entity or public employee . . . .” However, Section 59:8-9 of the TCA (“Notice of late claim”) states: “A claimant who fails to file notice of his claim within 90 days as provided in section 59:8-8 of this act, may, in the discretion of a judge of the Superior Court, be permitted to file such notice at any time within one year after the accrual of his claim provided that the public entity or the public employee has not been substantially prejudiced thereby. Application to the court for permission to file a late notice of claim shall be made upon motion supported by affidavits based upon personal knowledge of the affiant showing sufficient reasons constituting extraordinary circumstances for his failure to file notice of claim within the period of time prescribed by section 59:8-8 of this act or to file a motion seeking leave to file a late notice of claim within a reasonable time thereafter; provided that in no event may any suit against a public entity or a public employee arising under this act be filed later than two years from the time of the accrual of the claim.”
The Underlying Facts
The New Jersey medical malpractice plaintiff was in labor when she was admitted to the defendant hospital on October 3, 2016, suffering from severe pre-eclampsia diagnosed by severe blood pressure elevations. The physician who treated the plaintiff beginning with her second hospital visit in October 2016 certified that the plaintiff was asked to sign a permission that included notification that the defendant hospital is associated with the State of New Jersey and not Rutgers University. The plaintiff certified that it was not until July 2017 that she realized that someone had mishandled her care and when she learned on the internet that in the United States she could bring a lawsuit against the medical providers for negligence, she consulted with an attorney and the motion to file out of time followed.
The New Jersey Appellate Court stated that no argument is being made in the case it was deciding that substantial prejudice has resulted from the late filing of the plaintiff’s New Jersey medical malpractice claim, and that it is the defendant hospital’s burden to produce and demonstrate such substantial prejudice under N.J.S.A. 59:8-9. The New Jersey Appellate Court stated that the trial judge concluded that the accrual date in this case was October 2016, as the plaintiff was then made aware of the fact that her incision had become grossly infected and that she was suffering from unusual significant physical consequences to childbirth, but the New Jersey Appellate Court stated that the accrual date is actually the date the plaintiff should have discovered that she may have a basis for an actionable claim.
The New Jersey Appellate Court stated that it would not have been unreasonable for the plaintiff to have assumed her hospitalization and illness was merely a natural consequence of the birth of her son, during the ninety-day period, and there is no reason to doubt the statement in her certification that it was not until her July visits over the course of two days in the emergency room that she would have become aware that she had been injured by a third party. Even the December 16, 2016 hospitalization may not have been sufficient notice that the medical issues from which the plaintiff was suffering were not merely routine consequences from the October childbirth, but problems attributable to the negligence of others.
The New Jersey Appellate Court held: “Even if we were to agree, however, that the date of accrual was either October or December, the nature of the condition from which [the plaintiff] suffered, when joined with her responsibility in caring for a newborn while a recent immigrant to this country, does constitute a combination of facts which together total extraordinary circumstances. During the ninety-day period commencing October 13, 2016, [the plaintiff’s] physical condition was such that she was fortunate to have survived. She nearly lost her life, and would not have prioritized determining whether she had a cause of action against anyone … After consideration of the facts, the combination of factors in [the plaintiff’s] life equal extraordinary circumstances.”
Source Ganame v. University Hospital, Docket No. A-2087-17T2.
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