New Jersey’s Tort Claims Act requires that any person who seeks to file a lawsuit against a public entity for tortious injury or damage to persons or property must put the responsible public entity on notice of that intention within ninety (90) days of the claim’s accrual. N.J.S.A. § 59:8-8. In “extraordinary circumstances,” claimants may seek leave of court to file a late notice within one year of the claim’s accrual. In the case of Wallace v. Hoffman, 2020 N.J. Super. LEXIS 195 (App. Div. 2020) (Approved for Publication, July 31, 2020), New Jersey’s Appellate Division addressed the timeliness of a notice of tort claim in a legal malpractice suit arising out of a medical malpractice claim against a public employee physician. While the procedural history of the case appears “complex”, the ultimate decision of the Appellate Division sorts out the complexity and resolves the case on simple and time tested legal principles.
Plaintiff underwent a hysterectomy at Kennedy University Hospital, in August of 2013. The procedure was performed with robotic equipment. The physician who performed the surgery advised the plaintiff – immediately after the procedure – that the equipment had failed, and that he had ultimately “nicked” her bowel during the procedure. Plaintiff retained an attorney, Joseph Hoffman, Jr., two months after her surgery, to prosecute a medical malpractice action. That attorney drafted a “memo to file” labeled “urgent” regarding the necessity of filing a notice of tort claim, because of his understanding that many physicians at the Hospital are doctors associated with the State of New Jersey. The latter arose because of the Hospital was a “teaching” hospital associated with Rowan University Medical School, which is part of the State’s public system of higher education.
Hoffman’s office staff, responding to the memorandum, prepared a notice of tort claim to be served upon Kennedy Hospital just two days after meeting Plaintiff. However, they failed to put the offending physician, or his public employer, Rowan University, on notice. Ultimately, Hoffman’s firm advised the plaintiff that it would not file a Complaint on her behalf, based on their assessment that they could not be successful on the claim. The firm further advised plaintiff of the impending two-year statute of limitations, and recommended other counsel she might consult for a second opinion. Attorney Gary Ginsberg ultimately filed a lawsuit on the final day of the two-year statute of limitations period. In October of 2015, the physician answered, and raised failure to comply with the Tort Claims Act as an affirmative defense. In May of 2016, the physician moved successfully for dismissal, and the plaintiff, through her new attorneys, cross-moved unsuccessfully for leave to file a late notice of claim.The trial court held that plaintiff failed to demonstrate “extraordinary circumstances” to warrant permission to file a late notice of claim and save the case from dismissal.
Ultimately, after attorney Ginsberg unsuccessfully moved to reinstate the medical malpractice lawsuit, plaintiff filed suit against her first attorney, Joseph Hoffman. In turn, attorney Hoffman impleaded attorney Ginsberg as a third-party defendant, alleging causes of action for contribution and indemnity. Ginsberg moved to dismiss, contending that impleader of a successor attorney in a legal malpractice action is prohibited in New Jersey. He further argued that Hoffman’s failure to have properly filed a notice of tort claim within the first 90 days, as noted in Hoffman’s file, doomed plaintiff’s claim before attorney Ginsberg ever entered the picture. Ultimately, after several motions, the trial court in the legal malpractice case accepted attorney Hoffman’s contention – that because plaintiff had been unaware of the physician’s public employment status until the filing of an answer to the initial lawsuit, in October of 2015, that attorney Ginsberg would have had until January of 2016 to file a notice of tort claim.
On appeal, the Appellate Division reversed the trial judge in the legal malpractice case and reiterated the distinction between accrual of a cause of action, and timeliness of a notice of tort claim. Importantly, there was no dispute that the surgeon was within the ambit of the Tort Claims Act as a “public employee.”“Ascertaining the timeliness of a Tort Claims Act notice requires a simple, three-step sequential analysis that never changes,” the court wrote. First, the court should determine when the cause of action accrued. Given that the plaintiff’s underlying claim sounded in medical malpractice, the claim accrued on the day of the malpractice – which was supported by the fact that the physician candidly advised plaintiff of the error during the surgery on that same day. The second inquiry is whether the notice of claim was filed within ninety days of the claim’s accrual. In this instance, it simply was not. Thus, the third step of the inquiry is whether extraordinary circumstances existed, justifying a late notice. Given that the extraordinary circumstance safeguard only extends the notice period for up to one year after accrual of the claim, the Appellate Division noted that there was simply no way for attorney Ginsberg to have saved or corrected the error. As such, the legal malpractice claims stated in the third-party complaint were dismissed.