Opinion
DOCKET NO. A-2123-13T1
10-22-2015
GARY BIASSOU, Guardian ad Litem of ALESSIO BIASSOU, Minor, and GARY BIASSOU and KATIA BIASSOU, Individually, Plaintiffs-Appellants, v. JOHN FITZSIMMONS, M.D., VIRTUA MATERNAL FETAL MEDICINE CENTER, KENNEDY MEMORIAL HOSPITALS/UNIVERSITY MEDICAL CENTER, Defendants, and KEITH WILLIAMS, M.D., Defendant-Respondent
Bruce H. Nagel argued the cause for appellant (Nagel Rice, attorneys; Mr. Nagel, on the briefs). Patricia M. Wason argued the cause for respondent (Post, Polak, Goodsell, MacNeill & Strauchler, attorneys; Jay Scott MacNeill, of counsel; Ms. Wason, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Simonelli and Carroll. On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-600-13. Bruce H. Nagel argued the cause for appellant (Nagel Rice, attorneys; Mr. Nagel, on the briefs). Patricia M. Wason argued the cause for respondent (Post, Polak, Goodsell, MacNeill & Strauchler, attorneys; Jay Scott MacNeill, of counsel; Ms. Wason, on the brief). PER CURIAM
This matter involves a claim brought by plaintiffs Gary and Katia Biassou against defendant Keith Williams, M.D., and others for the wrongful birth of their child. Plaintiffs appeal from two November 22, 2013 Law Division orders, which granted defendant's motion to dismiss the wrongful birth claim with prejudice for failure to serve a notice of claim, as required by the New Jersey Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 12-3, and denied plaintiffs' motion for leave to file a late notice of claim.
"A wrongful birth cause of action is predicated on a woman's right to determine for herself whether or not to continue or terminate her pregnancy . . . and the deprivation of that right by the negligent misconduct of another creates a cause of action in the parents." Canesi v. Wilson, 158 N.J. 490, 501 (1999) (internal quote and citation omitted). It differs from a wrongful life claim, "which refers to a cause of action brought by or on behalf of a defective child who claims that but for the defendant doctor's negligent advice to or treatment of its parents, the child would not have been born." Procanik v. Cillo, 97 N.J. 339, 348, (1984). Plaintiffs also asserted a claim for wrongful life on behalf of their child. That claim is not the subject of this appeal.
The pertinent facts can be briefly summarized. Defendant performed three ultrasounds on Katia during the third trimester of her pregnancy. All three ultrasounds were performed at Kennedy University Hospital (Kennedy). Katia later gave birth to a son, Alessio, at Kennedy on May 6, 2011. Immediately thereafter, plaintiffs were informed that Alessio suffered from congenital defects and cardiac abnormalities. Plaintiffs filed a complaint on February 6, 2013, alleging that defendant negligently performed the prenatal ultrasounds and failed to discover the fetus's abnormalities.
Because plaintiffs share a common surname we refer to them by their first names for clarity and ease of reference. We intend no disrespect in doing so.
Defendant filed his answer on April 10, 2013, denying any medical negligence and asserting that plaintiffs' claim was barred by their failure to comply with the notice provisions of the TCA. On July 29, 2013, defendant served plaintiffs with certified answers to interrogatories in which he reiterated that he was employed by the University of Medicine and Dentistry of New Jersey (UMDNJ) and again asserted a defense under the TCA.
On October 16, 2013, following the parties' exchange of answers to form interrogatories, defendant moved to dismiss the plaintiffs' wrongful birth claim for failure to file a tort claim notice against him as required by N.J.S.A. 59:8-8. Plaintiffs opposed the motion, and on October 28, 2013, moved for leave to file a late notice of claim pursuant to N.J.S.A. 59:8-9. The motion judge heard oral argument on both motions on November 22, 2013. The judge held that plaintiffs' failure to file a timely notice of claim upon learning of defendant's status as a public employee barred them from bringing their wrongful birth claim against defendant.
Defendant did not seek to dismiss the wrongful life claim filed on behalf of the child. --------
On appeal, plaintiffs argue that the trial court applied an incorrect standard governing the filing of a late notice of tort claim, that "extraordinary circumstances" existed to excuse the late filing, and that they acted within a reasonable time following defendant's disclosure that he was a public employee. Alternatively, plaintiffs submit that defendant's failure to promptly move for dismissal constituted a waiver of his TCA defense.
The decision to grant permission to file a notice of late claim is left "'to the sound discretion of the trial court, and [its decision] will be sustained on appeal in the absence of a showing of an abuse thereof.'" D.D. v. Univ. of Med. & Pentistry of N.J., 213 N.J. 130, 147 (2013) (alteration in original) (quoting Lamb v. Global Landfill Reclaiming, 111 N.J. 134, 146 (1988)). "Although deference will ordinarily be given to the factual findings that undergird the trial court's decision, the court's conclusions will be overturned if they were reached under a misconception of the law." Ibid. Claims against UMDNJ and its employees, such as defendant, are governed by the TCA, which "defines the extent of the Legislature's waiver of sovereign immunity and 'establishes the procedures by which claims may be brought[.]'" Id. at 146 (alteration in original)(quoting Baeuchamp v. Amedio, 164 N.J. 111, 116 (2000)). Under the TCA, a claimant must file a notice of claim within ninety days of the accrual of the cause of action. N.J.S.A. 59:8-8. However, N.J.S.A. 59:8-9 alleviates the rigidity of the ninety-day requirement by authorizing late filing of the notice of claim under certain circumstances.
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.
[Ibid.]
Our analysis implicates the interplay between the above statutory provisions, and must be undertaken sequentially. Beauchamp, supra, 164 N.J. at 118. The first task is to determine when plaintiffs knew or should have known of defendant's status as a UMDNJ employee. Under the TCA, "the discovery rule is part and parcel" of determining when a claim accrued "because it can toll the date of accrual." Ibid. "Until the existence of an injury (or, knowledge of the fact that a third party has caused it) is ascertained, the discovery rule will toll accrual." Id. at 122.
Here, it is undisputed in the record that plaintiffs did not know of defendant's public employee status when they filed suit. Defendant performed all three ultrasounds at Kennedy, a private hospital, and there is no indication that defendant ever disclosed his status as a public employee to plaintiffs at that time. However, in the Fifth Separate Defense asserted in his answer to the complaint, defendant clearly stated that he was an employee of UMDNJ. In addition, as his Sixth Separate Defense, defendant raised plaintiffs' failure to comply with the notice provisions of the TCA. Thus, as of April 10, 2013, when defendant's answer was filed, plaintiffs were vested with actual knowledge that defendant was a state employee, which their counsel conceded at oral argument. We therefore conclude that their TCA claim against defendant accrued on that date.
After determining the date of accrual, our "next task is to determine whether a notice of claim was filed within ninety days. If not, the third task is to decide whether extraordinary circumstances exist justifying a late notice." Id. at 118-19.
Although occasionally the facts of a case may cut across those 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.
[Id. at 119.]
Utilizing this framework, defendant's answer, in which he clearly asserted his employment and invoked the TCA as a defense, triggered the statutory ninety-day notice period. Plaintiffs failed to file a notice of claim within ninety days of the filing of defendant's answer. They therefore became obligated, under N.J.S.A. 59:8-9, to show that there were sufficient reasons constituting extraordinary circumstances to excuse that failure, and that there would be no substantial prejudice to the public employee. D.D., supra, 213 N.J. at 147-48.
In this case we need not reach the prejudice prong because plaintiffs offered no explanation whatsoever for their failure to file a notice of claim within ninety days from the accrual of their cause of action. They thus failed to establish the extraordinary circumstances test, as the motion judge correctly found. Consequently their wrongful birth claim was properly dismissed.
In an effort to avoid this admittedly harsh consequence, plaintiffs eschew application of the discovery rule. Instead, they contend that their claim accrued on May 6, 2011, the date of Alessio's birth. Relying on Lowe v. Zarghemi, 158 N.J. 606 (1999), they argue that they successfully demonstrated extraordinary circumstances excusing their failure to file a timely tort claim notice within ninety days of Alessio's birth because they had no way of knowing defendant was a public employee.
Lowe also involved the applicability of the TCA and its notice requirement to a doctor employed by UMDNJ who treated the plaintiff at another hospital. Reviewing the record, the Court found "no evidence supporting the conclusion that Lowe knew Dr. Zarghami was a UMDNJ employee." Id. at 629-30. The "unanticipated revelation" that Zarghami was a public employee was sufficient to support a finding of extraordinary circumstances. Id. at 630.
However, in Lowe, the doctor's motion to dismiss apparently provided the plaintiff with her first knowledge of the doctor's employment status. Here, on the other hand, such notice was provided in defendant's answer filed on April 10, 2013, and confirmed in defendant's answers to interrogatories served on July 29, 2013. We deem this distinction important because, as one commentator has observed:
The 1994 amendment of [N.J.S.A. 59:8-9] established the requirement that a late notice of claim be filed within a reasonable time. This makes clear that having sufficient reasons for not filing within the [ninety]-day period of 59:8-8 does not create an absolute right to wait until the end of the one[-]year period to seek leave to file a late notice. Rather, leave to file must be sought within a reasonable time after the abatement of whatever conditions created sufficient reasons for late filing in the first place. See, e.g., Wood v. County of Burlington, 302 N.J. Super. 371, 380 (App. Div. 1997) (unexplained nine-month delay in filing motion for leave to file late notice contributed to denial of motion, brought at the end of the one-year period, for leave to file a late notice).
[Margolis and Novack, Claims Against Public Entities, comment to N.J.S.A. 59:8-9 (2014).]
As noted, plaintiffs had actual knowledge of defendant's employment status as of the filing of defendant's answer on April 10, 2013. Plaintiffs failed to file either a notice of claim or, alternatively, a motion for leave to file a late notice. In fact, plaintiffs took no action until October 28, 2013, when they responded to defendant's motion to dismiss. In their affidavits, plaintiffs failed to address or offer any explanation for their six-and-one-half-month delay which, under the facts presented, was unreasonable and required a denial of their motion for leave to file a late notice of claim, even if plaintiff's argument about the accrual date is accepted.
Relying on Hill v. Bd. of Ed., 183 N.J. Super. 36 (App. Div. 1982), plaintiffs further contend that, even if they did not file a late notice of tort claim within a reasonable time, defendant nonetheless waived his right to assert the TCA as a defense by engaging in discovery and waiting some six months before filing a dismissal motion. We find plaintiffs' reliance on Hill misplaced.
In Hill, a student and her parents filed a personal injury action against defendant school district for injuries sustained by the student while playing basketball in school. Id. at 38. Defendant filed an answer in which it asserted a separate defense that plaintiffs' cause of action was barred by their failure to comply with the TCA. However, defendant did not specifically plead that plaintiffs failed to comply with the notice provisions of the TCA nor did it cite the applicable section of the statute. Id. at 40. Thereafter, the parties engaged in a prolonged period of discovery, including interrogatories, depositions, and a physical evaluation. Id. at 39. Finally, over 2 1/2 years after the complaint was filed, defendant moved to dismiss it based on plaintiff's failure to comply with the notice provisions of the TCA. Ibid. Faced with these facts, we concluded that defendant was equitably estopped from asserting this defense. Ibid.
In the present case, from the outset, defendant asserted plaintiffs failure to comply with the TCA's notice provisions as a defense. The parties then exchanged answers to form interrogatories. The record reflects that the case had a July 2, 2014, discovery end date, and defendant moved to dismiss plaintiffs' wrongful birth claim well prior thereto. Moreover, unlike Lowe, this interim period before seeking dismissal afforded plaintiffs an opportunity to file a timely notice of claim or motion for leave to file a late notice. Plaintiffs did neither. As a result, their claim was properly dismissed.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION