The Superior Court of New Jersey Appellate Division (“New Jersey Appellate Court”) held in its opinion approved for publication on March 2, 2018 that because the decedent’s hospital records do not legibly reveal one particular doctor’s name and involvement in the decedent’s care, it was unreasonable to expect the plaintiff to have ascertained that doctor’s identity and negligent conduct until her counsel received a post-suit affidavit from the defense clarifying which doctors had actually been involved in the decedent’s care.
Upon receiving the clarifying affidavit, the plaintiff promptly amended the complaint to name the previously unidentified doctor (and two other doctors) in place of “John Doe” defendants. The New Jersey Appellate Court held that the plaintiff’s claims against that particular physician may proceed.
Chronology Of Events
Three days before the two-year statute of limitations expired with regard to the plaintiff’s New Jersey medical malpractice wrongful death claim and survivorship claim, the plaintiff, as administrator of her son’s estate and individually, filed her New Jersey medical malpractice action. The complaint specifically identified and named two doctors, and also named five fictitious defendants denominated as “John Does.”
The New Jersey medical malpractice complaint described the five John Does as “physicians licensed to practice in the State of New Jersey” who were involved in the decedent’s care. The plaintiff’s claims of medical negligence focused on the diagnosis and treatment the decedent received at a New Jersey hospital during the five-day period after his admission and before his discharge. The plaintiff alleged the decedent was at high risk for a DVT. Because of that risk, the medical standard of care allegedly required the decedent to receive at the hospital “pharmacologic” venous thromboembolism (“VTE”) prophylaxis medications, rather than “mechanical” prophylaxis such as stockings or intermittent pneumatic compression. The decedent did not receive VTE prophylaxis at the hospital. The plaintiff contended that this omission allowed the decedent to develop a blood clot in his leg after his discharge from the hospital. The clot traveled to his lungs, causing a fatal pulmonary embolism.
Rule 4:26-4 provides, in pertinent part, that: “[i]n any action, irrespective of the amount in controversy, other than an action governed by R. 4:4-5 (affecting specific property or a res), if the defendant’s true name is unknown to the plaintiff, process may issue against the defendant under a fictitious name, stating it to be fictitious and adding an appropriate description sufficient for identification. Plaintiff shall on motion, prior to judgment, amend the complaint to state defendant’s true name, such motion to be accompanied by an affidavit stating the manner in which that information was obtained.”
The New Jersey Supreme Court has construed Rule 4:26-4 to allow a plaintiff who institutes a timely action against a fictitious defendant to amend the complaint after the expiration of the statute of limitations to identify the true defendant. When this procedure is properly utilized, an amended complaint identifying the defendant by its true name relates back to the time of filing of the original complaint.
A plaintiff relying on a fictitious pleading must demonstrate two phases of due diligence in order to gain the tolling benefits of the rule. First, a plaintiff must exercise due diligence in endeavoring to identify the responsible defendants before filing the original complaint naming John Doe parties. Second, a plaintiff must act with due diligence in taking prompt steps to substitute the defendant’s true name, after becoming aware of that defendant’s identity.
The New Jersey Appellate Court stated that with respect to one defendant doctor in the present case, his name is not typed in any of the records, and his name and signature only appear in illegible handwritten entries within the chart, which is not acceptable institutional practice. N.J.A.C. 8:43G-15.2(b) requires “all entries” in a patient’s medical record to be “written legibly” or authenticated if a computerized medical records system is used.
The New Jersey Appellate Court stated that until the plaintiff’s New Jersey medical malpractice lawyer received a clarifying affidavit from the defense attorney, the plaintiff had no reason to be aware that that doctor had anything to do with her son’s treatment, and there was no lack of due diligence in omitting him from her original complaint.
Therefore, the New Jersey Appellate Court held that the trial court erred in disallowing the plaintiff to substitute that doctor in place of a John Doe defendant, and rejected the defense’s argument that the John Doe description in the complaint was insufficiently detailed to allow that substitution.
Source Baez v. Paulo, Docket No. A-3742-16T3.
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