RAHEIM SMITH VS. ST. JOSEPH'S HOSPITAL AND MEDICAL CENTER (L-1489-16, ESSEX COUNTY AND STATEWIDE) ( 2019 )

NOT FOR PUBLICATION WITHOUT THE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-0526-18T4
RAHEIM SMITH and
MICHELLE SMITH,
Plaintiffs-Appellants,
v.
ST. JOSEPH'S HOSPITAL AND
MEDICAL CENTER, t/d/b/a
ST. JOSEPH'S REGIONAL
MEDICAL CENTER and t/d/b/a
ST. JOSEPH'S UNIVERSITY
MEDICAL CENTER, ST.
JOSEPH'S HEALTHCARE, INC.,
ST. JOSEPH'S HEALTHCARE
SYSTEM, INC., ST. JOSEPH'S
PHYSICIANS HEALTHCARE
GROUP, INC., ST. JOSEPH'S
PHYSICIANS, INC., ST. JOSEPH'S
FACULTY PHYSICIANS, INC.,
UNIVERSITY SPINE CENTER,
PC, and MICHAEL J. FALOON,
M.D.,
Defendants-Respondents,
and
VIRTUAL RADIOLOGIC
PROFESSIONALS, LLC, VIRTUAL
RADIOLOGIC PROFESSIONALS
OF NEW JERSEY, PA, VIBHU
KAPOOR, M.D., and SETON HALL
UNIVERSITY,
Defendants.
______________________________
Argued November 27, 2018 – Decided March 19, 2019
Before Judges Fisher and Suter.
On appeal from Superior Court of New Jersey, Law
Division, Essex County, Docket No. L-1489-16.
Jillian A.S. Roman argued the cause for appellants
(Cohen, Placitella & Roth, PC, attorneys; Jillian A.S.
Roman, on the brief).
Charles E. Murray, III, argued the cause for
respondents St. Joseph's Hospital and Medical Center,
St. Joseph's Healthcare, Inc., St. Joseph's Healthcare
System, Inc., St. Joseph's Physicians Healthcare Group,
Inc., St. Joseph's Physicians, Inc. and St. Joseph's
Faculty Physicians, Inc. (Farkas & Donohue, LLC,
attorneys; Charles E. Murray, III, on the brief).
Richard J. Tamn argued the cause for respondents
Michael J. Faloon, M.D. and University Spine Center,
PC (Krompier & Tamn, LLC, attorneys; Richard J.
Tamn, of counsel and on the brief; Elizabeth G.
Thompson, on the brief).
PER CURIAM
Plaintiffs Raheim and Michelle Smith were granted leave to appeal from
an order denying the amendment of their medical malpractice complaint that
A-0526-18T4
2
would have added Kumar G. Sinha, M.D. and Leah Abucay, R.N. as additional
defendants, and a subsequent order that denied their motion for reconsideration.
We reverse the denial of the amendment because the discovery rule should have
been applied.1 We also reverse the denial of reconsideration.
I
We relate facts pertinent to this opinion. Raheim,2 who was sixteen in
2015, suffered from severe "idiopathic scoliosis"3 of the spine. Michelle is his
mother. On April 7, 2015, defendant Michael J. Faloon, M.D. (Dr. Faloon) and
Kumar G. Sinha, M.D. (Dr. Sinha), who practiced together in defendant
University Spine Center, PC, performed scoliosis reconstruction surgery on
Raheim's spine. The operation was performed at defendant St. Joseph's Hospital
and Medical Center. Raheim had normal feeling and strength in his legs and
arms right after the surgery. By about 10:00 p.m. that evening, however, Raheim
complained of lack of feeling or movement in his legs or feet. Neurological
1
We do not reverse the part of the order that amended the caption to allow
Raheim Smith to bring the action individually on his own behalf.
2
We use first names in this opinion to avoid confusion because plaintiffs share
the same surname.
3
Scoliosis is defined as an abnormal lateral and rotational curvature of the
vertebral column (spine). Stedman's Medical Dictionary 1734 (28th ed. 2005).
A-0526-18T4
3
testing confirmed he had lost feeling below the nipple line, movement in his legs
and feet and some strength in his left hand. He received medical treatment and
an MRI was performed. While at the MRI, Raheim regained movement and
sensation.
A decision was made to transfer Raheim to the Pediatric Intensive Care
Unit (PICU) rather than operate on him further that night. When Raheim was
admitted to PICU at about 2:20 a.m., he reported feeling pain stimulation in both
legs but his left hand grasp was a little less. Leah Abucay, R.N. (Nurse Abucay),
who was on duty in PICU, performed a number of medical checks throughout
the rest of the night, but did not wake Raheim to conduct neurological tests to
monitor his movements or feeling. At 6:30 a.m., an orthopedic resident who
examined Raheim, found he had lost motor function and sensation in his legs
and feet. Drs. Faloon and Sinha were notified and later that morning they
operated on Raheim to remove the implants they had inserted in the earlier spinal
surgery. Raheim did not regain sensation or movement thereafter and now
suffers from paraplegia. Plaintiffs contend the MRI was misread and that
A-0526-18T4
4
Raheim experienced a post-operative epidural hematoma 4 that compressed the
spinal cord.
In March 2016, Michelle filed a malpractice lawsuit for Raheim in her
capacity as his guardian and for herself individually. Dr. Faloon and others were
named as defendants. Discovery progressed; there were multiple motions to
address discovery issues.
In late May 2018, plaintiffs filed a motion to amend their complaint to add
Dr. Sinha and Nurse Abucay as defendants and, because Raheim no longer was
a minor, to amend the complaint's caption to reflect that the claims were brought
by him individually. Plaintiffs claimed they first learned on October 25, 2017,
when Dr. Sinha was deposed, that he and Dr. Faloon decided jointly not to
operate on Raheim but to place him in PICU based on the MRI and on Raheim's
regained movement. None of the medical records had shown that Dr. Sinha
participated in the decision not to operate a second time.
Plaintiffs claimed they learned on November 17, 2017, that Dr. Faloon
had ordered PICU to perform hourly neurological testing of Raheim. The
medical records did not show that order, so plaintiffs were not aware of this
4
An epidural hematoma occurs when a mass of blood forms on or outside of
the dura matter (the outer most membrane enveloping the brain and spinal cord).
Stedman's Medical Dictionary 654, 863, and 592 (28th ed. 2005).
A-0526-18T4
5
prior to the deposition of a resident where this information was revealed. Also,
on February 20, 2018, plaintiffs obtained a copy of the hospital's policy that
PICU patients should be assessed every one to two hours or more frequently as
needed. Plaintiffs' motion sought to add Nurse Abucay as a defendant because
they alleged she violated her duty of care by not performing hourly neurological
checks or following the hospital's policy.
The trial court denied plaintiffs' motion to add Dr. Sinha and Nurse
Abucay as defendants, rejecting their argument that the discovery rule applied.
The court concluded plaintiffs had "a basis to bring Sinha and . . . Abucay into
this case long before now." "Dr. Sinha was the assistant in the operation. Nurse
Abucay was monitoring during the three hours . . . [t]here was enough to put
you on notice." Plaintiffs were not diligent; the court noted that "the concept of
due diligence appli[ed] in the discovery rule context." Also, plaintiffs did not
supply the court with legal authority to support their arguments. However, the
judge did grant plaintiffs' motion to amend the caption to reflect that Raheim's
claims now were brought in his individual capacity.
The court subsequently denied plaintiffs' motion for partial
reconsideration because plaintiffs' arguments previously had been raised,
A-0526-18T4
6
considered and rejected by the court. We granted plaintiffs' motion for leave to
appeal.
On appeal, plaintiffs contend the trial court erred by holding they could
not rely on the discovery rule to amend their complaint when previously they
were not aware of facts demonstrating medical negligence by Dr. Sinha and
Nurse Abucay. They also contend the court erred in finding they were dilatory
in conducting discovery and filing a motion to amend even though their motion
was filed within two years of discovering the alleged negligence by Dr. Sinha
and Nurse Abucay and within two years of Raheim reaching eighteen.
II
We review the trial court's ruling on a motion to amend the pleadings
under the abuse of discretion standard. Fisher v. Yates, 270 N.J. Super. 458,
467 (App. Div. 1994). The same standard governs our review of decisions on
motions for reconsideration. Cummings v. Bahr, 295 N.J. Super. 374, 389 (App.
Div. 1996).
After a responsive pleading has been served, a party may amend a
pleading "by written consent of the adverse party or by leave of court, which
shall be freely given in the interest of justice." R. 4:9-1. Kernan v. One
Washington Park Urban Renewal Assocs., 154 N.J. 437, 456-57 (1998). This
A-0526-18T4
7
decision is committed to the sound discretion of the trial court. Ibid. The
"exercise of discretion requires a two-step process: whether the non-moving
party will be prejudiced, and whether granting the amendment would
nonetheless be futile." Notte v. Merchs. Mut. Ins. Co., 185 N.J. 490, 501 (2006).
"[T]he factual situation in each case must guide the court's discretion,
particularly where the motion is to add new claims or new parties late in the
litigation." Bonczek v. Carter-Wallace, Inc., 304 N.J. Super. 593, 602 (App.
Div. 1997). "'[C]ourts are free to refuse leave to amend when the newly asserted
claim is not sustainable as a matter of law.'" Notte, 185 N.J. at 501 (quoting
Interchange State Bank v. Rinaldi, 303 N.J. Super. 239, 256-57 (App. Div.
1997)).
Plaintiffs contend the court erred in denying their motion because the
discovery rule applied. Under that rule, they had two years from when they
discovered the negligence by Dr. Sinha and Nurse Abucay to file suit. Because
their motion was filed within that timeframe, it was not "futile" as defendants
argued.
Medical malpractice actions must be instituted within two years from the
date of the alleged negligence. N.J.S.A. 2A:14-2. However, the discovery rule
was adopted "[t]o prevent the sometimes harsh result of a mechanical
A-0526-18T4
8
application of the statute of limitations." Martinez v. Cooper Hosp. Univ. Med.
Ctr., 163 N.J. 45, 52 (2000) (citing Vispisiano v. Ashland Chem. Co., 107 N.J.
416, 426 (1987), and Fernandi v. Strully, 35 N.J. 434, 449-50 (1961)). As a rule
of equity, it provides that a cause of action will not accrue "until the injured
party discovers, or by an exercise of reasonable diligence and intelligence
should have discovered that he may have a basis for an actionable claim" against
another party. Lopez v. Swyer, 62 N.J. 267, 272 (1973). It "prevents the statute
of limitations from running 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." Baird v. American Medical Optics,
155 N.J. 54, 66 (1998) (citing Tevis v. Tevis, 79 N.J. 422, 432 (1979)). Further,
"where a plaintiff knows of an injury, but fault is not self-evident or implicit in
the injury itself, it must be shown that a reasonable person would have been
aware of such fault in order to bar the plaintiff from invoking the discovery
rule." Martinez, 163 N.J. at 55.
The trial court rejected application of the discovery rule because plaintiffs
knew about Raheim's paralysis, that Dr. Sinha was involved in the original
operation and that Nurse Abucay was on duty that night in PICU. It was not
persuaded to apply the rule just because plaintiffs were not aware until much
A-0526-18T4
9
later in discovery of Dr. Sinha and Nurse Abucay's alleged fault during the
overnight hours. However:
knowledge of fault for purposes of the discovery rule
has a circumscribed meaning: it requires only the
awareness of facts that would alert a reasonable person
exercising ordinary diligence that a third party's
conduct may have caused or contributed to the cause of
the injury and that conduct itself might possibly have
been unreasonable or lacking in due care.
[Savage v. Old Bridge-Sayreville Medical Group, 134
N.J. 241, 248 (1993).]
Plaintiffs limit their malpractice claim against Dr. Sinha and Nurse
Abucay to "the post-surgical care received by [Raheim] during the overnight
hours of April 7, 2015 to April 8, 2015." Although they were aware that Dr.
Sinha assisted in the reconstructive surgery on April 7, there was nothing in the
medical records to show that he was involved in any of the decisions during or
after the MRI. Defendants do not dispute that. Dr. Sinha's involvement with
that subsequent period was not known until his deposition in October 2017.
Therefore, although plaintiffs knew the nature of the injury, they reasonably did
not know that the injury was attributable to the alleged fault of Dr. Sinha.
The same is true for Nurse Abucay. Plaintiffs were aware she was
involved with Raheim's care in the early morning of August 8 and that the
medical records did not reflect neurological testing. Plaintiffs did not know
A-0526-18T4
10
until November 2017 about Dr. Faloon's order for hourly neurological tests.
Nurse Abucay acknowledged not waking Raheim to perform neurologic tests.
We are satisfied that the discovery rule applies because a reasonable person
exercising ordinary diligence would not have been aware that Dr. Sinha and
Nurse Abucay's conduct "may have caused or contributed to the cause of the
injury and that conduct itself might possibly have been unreasonable or lacking
in due care." Savage, 134 N.J. at 248.
We also are satisfied plaintiffs acted diligently in pursuing these claims.
There were multiple discovery motions and request to produce documents.
Discovery was still on-going in the Fall of 2017 when this information was
obtained. Defendants do not allege they were prejudiced by the time elapsed
from when the depositions were taken to the time this motion was filed.
The case is similar to Gallagher v. Burdette-Tomlin Mem. Hosp., 163 N.J.
38 (2000), where the Court affirmed an application of the discovery rule. In
Gallagher, plaintiff had surgery to alleviate incontinence, but after the operation
she developed an infection and abscess resulting in her total incontinence. The
Court applied the discovery rule, recognizing that the statute of limitations for a
medical malpractice case can run at different times for different defendants. 163
N.J. at 43. The Court stated "[t]he patient here had no reasonable basis to
A-0526-18T4
11
suspect that her crippling condition was caused by anything other than the
original surgery." Ibid. There was "[n]o readily apparent indication of the
[doctor's] potential contribution to the patient's medical deterioration
materialized until [the expert physician] brought the failure to treat plaintiff's
infection to light." Id. at 44. The Court held that "[t]he benefit of the discovery
rule should be available to this plaintiff who remained reasonably 'unaware . . .
that the injury [wa]s due to the fault or neglect of an identifiable individual or
entity.'" Id. at 43-44 (alterations in the original) (quoting Abbond v. Viscomi,
111 N.J. 56, 62 (1988)).
Even if the discovery rule did not apply, Raheim should have been able to
amend the complaint to add these claims based on equitable tolling. N.J.S.A.
2A:14-21 provides:
If a person entitled to commence an action or
proceeding specified in [N.J.S.2A:14-2] . . . is under the
age of [eighteen] years . . . the person may commence
the action or make the entry, within the time as limited
by [the] statute[], after reaching majority or having the
mental capacity to pursue the person's lawful rights.
[N.J.S.A. 2A:14-21.]
In LaFage v. Jani, 166 N.J. 412, 430-31 (2001), where the children's
mother filed a wrongful death action twenty-seven days after the statute of
limitations had run, the court permitted equitable tolling. More recently in A.T.
A-0526-18T4
12
v. Cohen, 231 N.J. 337 (2017), the Supreme Court addressed the effect of an
untimely affidavit of merit, filed on behalf of a minor by her parent, on the
dismissal of the minor's malpractice action. In that case, the Court found
extraordinary circumstances to permit reinstatement of that complaint, reversing
the Appellate Division's majority opinion that had relied on Kubiak v. Robert
Wood Johnson Univ. Hosp., 332 N.J. Super. 230, 238 (App. Div. 2000) to affirm
dismissal of the complaint. The denial of Raheim's motion to amend his
complaint was not consistent with the "solicitude the law affords minors,"5 or
the equitable tolling statute.
We are mindful of the potential for prejudice, but in this case defendants
have been aware of plaintiff's injury and the malpractice lawsuit for a number
of years, records have been obtained, depositions taken, the additional parties
have been deposed and the claims against them are limited to their involvement
in the overnight hours following the reconstructive operation.
Therefore, we conclude the trial court misapplied its discretion in denying
plaintiff's motion to amend the complaint to add Dr. Sinha and Nurse Abucay as
5
A.T. v. Cohen, 445 N.J. Super. 300, 310 (App. Div. 2016) (Fisher, P.J.A.D.,
dissenting) (reversed and remanded by A.T., 231 N.J. 337).
A-0526-18T4
13
defendants. We reverse those portions of the orders and remand for further
proceedings consistent with this decision. We do not retain jurisdiction.
Reversed and remanded.
A-0526-18T4
14