KEN M. MCKOY v. JOHN THOMAS CAPO, M.D. (L-3414-19, HUDSON COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-0827-20
KEN M. MCKOY,
Plaintiff-Respondent,
V.
JOHN THOMAS CAPO, M.D.,
RICHARD YOON, M.D.,
LANI MEI LEE, M.D.,
JILLIAN R. THOMAS, PA-C,
JERSEY CITY MEDICAL
CENTER, and EVISION
HEALTHCARE CORPORATION,
Defendants-Respondents,
and
JUAN VELAZQUEZ, M.D.,
BENJAMIN CHANDLER, M.D.,
UNIVERSITY HOSPITAL,
and RUTGERS BIOMEDICAL
AND HEALTH SCIENCES AND
THE STATE OF NEW JERSEY,
Defendants-Appellants.
______________________________
Submitted February 14, 2022 – Decided February 24, 2022
Before Judges Fasciale and Sumners.
On appeal from the Superior Court of New Jersey, Law
Division, Hudson County, Docket No. L-3414-19.
Farkas & Donohue, LLC, attorneys for appellants Juan
Velazquez, M.D., Benjamin Chandler, M.D.,
University Hospital, Rutgers Biomedical and Health
Sciences, and the State of New Jersey (Evelyn C.
Farkas, of counsel; Christine M. Jones and Sean D.
McMurtry, on the briefs).
Vasios, Kelly & Strollo, PA, attorneys for respondent
Richard Yoon, M.D. (Lauren M. Strollo, of counsel;
Douglas M. Singleterry, on the brief).
Mazie Slater Katz & Freeman, LLC, attorneys for
respondent Ken M. McKoy (Beth G. Baldinger, of
counsel and on the brief; Samuel G. Wildman, on the
brief).
PER CURIAM
Defendants Dr. Juan Velazquez, M.D., Dr. Benjamin Chandler, M.D.,
University Hospital, Rutgers Biomedical and Health Sciences (Rutgers), and the
State of New Jersey (collectively State defendants) 1 appeal three orders: (1) an
October 16, 2020 order granting plaintiff's motion for leave to file late notice of
tort claim (notice of claim) against defendants Dr. Velazquez, University
1
Defendants Dr. Richard Yoon, M.D., Jillian R. Thomas (PA-C), and Jersey
City Medical Center (JCMC) joined in plaintiff's motions to file late notice of
claim.
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Hospital, Rutgers, and the State of New Jersey; (2) a December 4, 2020 order
granting plaintiff's motion for leave to file late notice of claim against
defendants Dr. Chandler, University Hospital, Rutgers, and the State of New
Jersey; and (3) a February 8, 2021 order denying State defendants' motion for
reconsideration of the December 4 order. We affirm.
I.
On October 9, 2017, at approximately 1:15 p.m., plaintiff was injured in
a motorcycle accident and taken by ambulance to JCMC. Around 7:00 p.m. that
night, plaintiff's right leg did not have a pulse. He was rushed into the operating
room and surgery revealed profound bleeding from an arterial injury. Plaintiff
underwent multiple surgical procedures—including two amputations—which
led to the loss of his right leg. 2 Plaintiff's malpractice claim is based on the five-
hour period between 2:00 p.m. and 7:00 p.m., during which medical providers
allegedly failed to diagnose or detect signs of Acute Compartment Syndrome.
On December 17, 2018, plaintiff first met with his trial counsel and
brought her his incomplete medical chart. On the same day, plaintiff's counsel
requested JCMC provide the complete medical file and chart. Plaintiff's counsel
only found one reference in the incomplete chart to a vascular surgery
2
Plaintiff underwent amputation surgeries on October 14 and October 25, 2017.
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consultation during plaintiff's time in the emergency department (ED). The
reference is one sentence of an operative report by Dr. Frank Liporace, M.D.,
which stated:
Initially, in the [emergency room], Vascular
Consultation was requested but by report, they said if
there was a faint [dorsalis pedis] pulse, then
angiography was not required, and they recommended
clinical monitoring unless pulse status changed.
On January 22, 2019, counsel received plaintiff's entire chart and
reviewed it. Plaintiff's counsel focused on the identified ED medical providers
in the chart: Dr. Lani Mei Lee, M.D. (ED Physician); Dr. Albert Li, M.D.
(Radiologist); Dr. Victor Ha, M.D. (Trauma Orthopedist); Dr. Capo (Orthopedic
Surgeon Consult); and Thomas (Physician Assistant (PA)). From her review of
plaintiff's medical records, counsel found that during the five-hour period—
when plaintiff was admitted into the hospital until a PA discovered plaintiff did
not have a pulse in his leg—there was no indication of the requested vascular
surgery consultation having been conducted.
On or about September 5, 2019, plaintiff filed the complaint against Dr.
Capo, Dr. Lee, Thomas, JCMC, and fictitiously pled individuals and entities.
Plaintiff's counsel requested the phone records of physicians during the five-
hour period. On September 30, JCMC responded that phone records were not
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available. In its responses to discovery, plaintiff claims JCMC never identified
the vascular surgical consult contacted when plaintiff was in the ED.
On May 20, 2020, Thomas responded to interrogatories propounded by
plaintiff. In one response, Thomas stated:
[S]hortly after admission to the [ED], a call for a
vascular consultation was made (likely by PA
Bischoff). This request went out to the vascular
surgeons at University Hospital – Newark. PA Thomas
recalls being told that vascular was not coming at that
time to see the patient since it was reported that the
patient still had pulses in his RLE. It is believed this
call went to Dr. Velazquez, the Vascular Fellow at
University Hospital.
According to plaintiff's counsel, this was the first time any discovery identified
Dr. Velazquez as the vascular consult. During a case management conference,
Thomas's counsel confirmed the Vascular Fellow called to consult was Dr.
Velazquez.
On June 23, 2020, plaintiff filed a motion for leave to file a late notice of
claim against public defendants the State of New Jersey, University Hospital,
Rutgers, and Dr. Velazquez. JCMC, Thomas, and Dr. Yoon joined plaintiff's
motion. State defendants opposed the motion, arguing that Dr. Velazquez
appeared in plaintiff's medical chart no less than sixty-five times and that he
cared for plaintiff for at least eleven separate days. After reviewing the
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arguments and submissions, on October 16, 2020, the judge entered an order
granting the motion. Plaintiff served the late notice of claim against Dr.
Velazquez and State defendants with pleadings and discovery on November 3,
2020.
Plaintiff then sought to join the physicians responsible for supervising Dr.
Velazquez. Plaintiff's counsel contacted a Rutgers representative to identify
those responsible for supervising Dr. Velazquez during the critical five-hour
period on October 9, 2017. The representative directed the discovery request to
State defendants' counsel. On November 10, 2020, State defendants' counsel
confirmed that Dr. Chandler "was an employee of NJ medical school and as such
was a state employee at the time at issue." On November 18, plaintiff filed a
motion for leave to file a late notice of claim against State defendants and
defendant Dr. Chandler, as Dr. Velazquez's supervisor.
The judge granted plaintiff leave to serve a late notice of claim as to Dr.
Chandler and State defendants on December 4. State defendants moved for
reconsideration of the December 4 motion. The judge conducted oral argument
on February 8, 2021, issued an oral decision, and denied the motion. On
February 22, defendants filed an amended notice of appeal, consolidating the
Velazquez and Chandler motions.
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On appeal, State defendants raise the following arguments:
POINT I
THE TRIAL [JUDGE'S] ORDERS WERE ENTERED
CONTRARY TO WELL[-]ESTABLISHED
PRINCIPLES AND BINDING CASE LAW
ADDRESSING ACCRUAL[.]
A. The Trial [Judge] Abused [Her] Discretion[.]
B. There Was No Basis To Conclude That The
Discovery Rule Applied To Toll Accrual In This
Case[.]
C. Plaintiff's Lack Of Due Diligence Precluded
Reliance Upon The Discovery Rule[.]
D. Even The Case Law Cited By The [Judge] In
Support Of The Discovery Rule's Application
Was Inapplicable, Instead Reinforcing The
Necessity Of Diligent Inquiry[.]
POINT II
THE TRIAL [JUDGE] LACKED JURISDICTION TO
GRANT PLAINTIFF'S MOTION FOR LEAVE TO
FILE LATE NOTICE OF CLAIM GIVEN THAT THE
MOTION WAS NOT FILED WITHIN ONE YEAR OF
ACCRUAL[.]
POINT III
THE TRIAL [JUDGE'S] ORDERS ARE
PREDICATED UPON INAPPROPRIATE,
INADMISSIBLE HEARSAY[.]
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We uphold a trial judge's grant of a motion for leave to file late notice of
claim absent a showing of abuse of discretion. D.D. v. Univ. of Med. &
Dentistry of N.J., 213 N.J. 130, 147 (2013). An "abuse of discretion only arises
on demonstration of 'manifest error or injustice,'" Hisenaj v. Kuehner, 194 N.J.
6, 20 (2008) (quoting State v. Torres, 183 N.J. 554, 572 (2005)), and occurs
when the trial judge's decision is "made without a rational explanation,
inexplicably departed from established policies, or rested on an impermissible
basis," Milne v. Goldenberg, 428 N.J. Super. 184, 197 (App. Div. 2012)
(quoting Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571 (2002)).
II.
In Points I and II, State defendants argue the judge abused her discretion
in granting plaintiff leave to file late notice of claim because she incorrectly
tolled the accrual date of plaintiff's claim based on the discovery rule. State
defendants contend that plaintiff failed to exercise due diligence in investigating
the vascular care rendered to plaintiff, and plaintiff's medical charts provided
sufficient identifying information for plaintiff to timely file notice of claim.
State defendants argue that the court lacked jurisdiction to grant plaintiff leave
to file late notice of claim because more than one year passed from the date of
the alleged negligence. We disagree and conclude the judge properly
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determined the accrual date tolled to when plaintiff discovered the identity of
the requested vascular consult.
A.
The New Jersey Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 12-3,
"requires a claimant seeking to file a tort action against a local public entity or
public employee to present a tort claims notice informing the entity about the
potential claim." H.C. Equities, LP v. Cnty. of Union, 247 N.J. 366, 370 (2021).
The claimant must file the notice of claim with the entity within ninety days of
the accrual of the claimant's cause of action. N.J.S.A. 59:8-8. The TCA,
"however, allows a claimant to apply to a court within one year of the accrual
of the claim for leave to file a late notice of claim." H.C. Equities, LP, 247 N.J.
at 370. When granting leave to file a late notice of claim, the judge must
determine if the claimant has shown "that the public entity . . . has not been
substantially prejudiced by the delay and that extraordinary circumstances
justify the failure to timely file." Ibid.
Trial judges consider the timeliness of a notice of claim under N.J.S.A.
59:8-8 in a "sequential analysis." Bayer v. Twp. of Union., 414 N.J. Super. 238,
258 (App. Div. 2010) (quoting Beauchamp v. Amedio, 164 N.J. 111, 118
(2000)). The first step in determining whether a claimant timely filed the notice
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of claim is determining the date of accrual. Ben Elazar v. Macrietta Cleaners,
Inc., 230 N.J. 123, 133-34 (2017). Once the judge determines the date of
accrual, the "next task is to determine whether a notice of claim was filed within
ninety days." Beauchamp, 164 N.J. at 118. Although the TCA does not define
the date of accrual, "[i]n the context of a medical malpractice action, a cause of
action generally accrues on the date that the alleged act or omission occurred."
Baird v. Am. Med. Optics, 155 N.J. 54, 65 (1998).
The discovery rule doctrine tolls the accrual of a cause of action if the
plaintiff "reasonably is unaware either that he has been injured, or that the injury
is due to the fault or neglect of an identifiable individual or entity." Caravaggio
v. D'Agostini, 166 N.J. 237, 245 (2001) (quoting Abboud v. Viscomi, 111 N.J.
56, 62 (1988)). The judge must determine "whether the facts presented would
alert a reasonable person, exercising ordinary diligence, that he or she was
injured due to the fault of another." Id. at 246. The rule applies in the TCA
context just as it would for a claim against a private entity, "tolling accrual of
the claim until the plaintiff is reasonably aware that she [or he] has been injured
by the fault or neglect of an identifiable person or entity." McNellis-Wallace v.
Hoffman, 464 N.J. Super. 409, 417 (App. Div. 2020).
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In rendering her oral decision on the motion for reconsideration, the judge
followed the sequential analysis. The judge noted that "[t]his is the type of case
that the discovery rule was designed for" as plaintiff's medical records contained
"absolutely no reference" to who was responsible for the vascular consult. The
judge determined the cause of action accrued, at the earliest, on May 20, 2020,
when Thomas responded to an interrogatory identifying Dr. Velazquez as the
requested consult.
Plaintiff's chart only included one reference to a vascular consult
requested by phone in Dr. Liporace's report. State defendants contend that an
objectively reasonable person would have been aware that Drs. Velazquez and
Chandler could be involved because their names were mentioned countless times
in the medical charts. Although their names appear in the charts, the discovery
doctrine is appropriate in this case because a reasonable person could not have
determined that Dr. Velazquez, who was involved in plaintiff's care after there
was no longer a pulse in his leg, was the medical provider responsible for
allegedly failing to assess and respond to signs of Acute Compartment
Syndrome during the critical five-hour period.
We disagree with State defendants' contention that plaintiff's counsel
failed to exercise due care because she did not inquire with Dr. Liporace or
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JCMC to identify the vascular surgeons on call. Plaintiff's counsel requested
JCMC hospital phone and pager records, a request that was denied. Plaintiff's
counsel also communicated with David Keller, a representative from Rutgers,
who stated that a notice of claim was not necessary because JCMC and the ED
medical providers identified were not associated with Rutgers. There was no
indication in plaintiff's medical records that Dr. Velazquez was the doctor called
for a vascular consult or that a notice of claim was necessary. Despite plaintiff's
counsel's efforts, it was not until later in discovery, on May 20, 2020, when
Thomas provided her interrogatories, that Dr. Velazquez was confirmed to be
the requested consult. And on June 3, 2020, during a case management
conference, Thomas's counsel confirmed Thomas's interrogatory identification
of Dr. Velazquez. The judge appropriately determined that plaintiff's claim
against Dr. Velazquez and State defendants did not accrue until May 20, 2020,
and plaintiff's subsequent motion for leave to file a late notice of claim on June
23, 2020, was timely.
B.
As to the notice of claim against Dr. Chandler, State defendants argue that
due diligence would have revealed Dr. Chandler's care of plaintiff as an
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attending physician from the Vascular Surgery Department because his name
appeared more than 200 times in plaintiff's chart.
N.J.S.A. 59:8-9 grants the trial judge discretion to permit filing of late
notice of claim within one year after accrual if the public employee or entity has
not been substantially prejudiced. It was not until Dr. Velazquez's September
2, 2020 certification that plaintiff's counsel learned that Dr. Velazquez was
practicing as a Vascular Fellow through Rutgers University during the time he
rendered care at JCMC. On November 5, 2020, plaintiff's counsel contacted a
Rutgers representative to determine whether Dr. Chandler was supervising Dr.
Velazquez at Rutgers during his fellowship. Plaintiff's counsel's inquiry was
focused on the relationship between Dr. Chandler and Dr. Velazquez. The
Rutgers representative refused to give that information, directing the inquiry to
State defendants' counsel.
On November 10, 2020, State defendants' counsel responded to plaintiff's
counsel's inquiry and confirmed that "Dr. Chandler was an employee of NJ
medical school and as such was a state employee at the time at issue." Plaintiff's
counsel maintains that this was her first confirmation that Dr. Chandler was
supervising Dr. Velazquez and was a public employee. Eight days later, on
November 18, and less than one year from accrual on May 20, 2020, plaintiff
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filed the motion seeking leave to file late notice of claim against Dr. Chandler
and State defendants.
State defendants have not demonstrated how granting leave to file the late
notice of claim prejudiced them. State defendants, which includes a public
hospital and public employees, were required to keep extensive medical records
in the regular course of treating patients, including plaintiff. See Lowe v.
Zarghami, 158 N.J. 606, 631 (1999) (finding the defendants doctor and hospital
were not prejudiced because medical records were kept in the ordinary course
of treatment, and they must have been aware of the possibility of a malpractice
suit). Without evidence of prejudice, the judge properly exercised her
discretionary authority to permit filing a late notice of claim against Dr.
Chandler and State defendants within one year of the accrual date.
III.
In Point III, State defendants contend plaintiff's motion seeking leave to
file late notice of claim as to Dr. Velazquez "was legally insufficient" because
it was based on "inadmissible double hearsay." State defendants contend
Thomas's interrogatory response, in which she stated she recalled "a call for a
vascular consultation" and "being told that vascular was not coming at that time
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to see the patient" amounts to inadmissible hearsay and calls into quest ion the
reliability and credibility of plaintiff's application for late notice of claim.
"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 . . . ." N.J.S.A. 59:8-9. The affidavit must set "forth only facts
which are admissible in evidence to which the affiant is competent to testify."
R. 1:6-6. Our Court has rejected that attorney-prepared affidavits render their
client's motion to file a late notice of claim deficient. See Lamb v. Global
Landfill Reclaiming, 111 N.J. 134, 153 (1988). An attorney may submit an
affidavit describing his or her efforts and investigations to identify a cause of
action or the public entities involved. Ibid.Hearsay is a statement, other than one made by a declarant testifying at a
trial or hearing, offered into evidence "to prove the truth of the matter asserted."
N.J.R.E. 801(c). Hearsay is inadmissible, but if the statement is "not offered for
the truth of the matter asserted, the evidence is not hearsay and no exception to
the hearsay rule is necessary to introduce that evidence at trial." Carmona v.
Resorts Int'l Hotel, Inc., 189 N.J. 354, 376 (2007) (quoting State v. Long, 173
N.J. 138, 152 (2002)). A hearsay statement may be admissible if being used to
show that the statement was "in fact made and that the listener took certain
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action as a result thereof." Ibid. (quoting Russell v. Rutgers Cmty. Health
Plan, 280 N.J. Super. 445, 456 (App. Div. 1995)).
The alleged double hearsay is plaintiff's counsel's certification in support
of the motion for leave to serve a late notice of claim, which quotes Thomas's
interrogatory response. Thomas's interrogatory stated that she recalled
a call for a vascular consultation was made (likely by
PA Bischoff). This request went out to the vascular
surgeons at University Hospital – Newark. PA Thomas
recalls being told that vascular was not coming at that
time to see the patient since it was reported that the
patient still had pulses in his RLE. It is believed that
this call went to Dr. Velazquez, the Vascular Fellow at
University Hospital.
State defendants argue that because Thomas "recalls being told" that the consult
was not coming, the declarant was likely "PA Bischoff," and Thomas did not
have actual personal knowledge that Dr. Velazquez was the alleged consult.
The judge did not abuse her discretion in relying on plaintiff's counsel's
certification or in considering Thomas's interrogatory response. The
certification outlined counsel's efforts to determine the negligent parties and
their identities as public entities, all of which were based on counsel's personal
knowledge and were appropriate to support the motion to file a late notice of
claim. See Lamb, 111 N.J. at 153. Although this argument was not raised in
plaintiff's brief, Thomas' interrogatory response was not inadmissible hearsay if
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not used to prove its truth—that Velazquez failed to respond to the surgical
consult. Thomas's response is non-hearsay if it is being used to demonstrate its
effect on plaintiff's counsel. See Carmona, 189 N.J. at 376. The response is
admissible if it is being used to show when plaintiff's counsel became aware of
a possibly negligent party and why counsel took subsequent action to investigate
the response.
IV.
We briefly address State defendants' contention that the judge abused her
discretion by issuing the two orders granting plaintiff leave to file notice of
claim without conducting oral argument or issuing statements of fact and
conclusions of law.
If requested by a party, oral argument "shall be granted as of right."
R. 1:6-2(d). "While a request for oral argument respecting a substantive motion
may be denied, the reason for the denial of the request, in that circumstance,
should itself be set forth on the record." Raspantini v. Arocho, 364 N.J. Super.
528, 531-32 (App. Div. 2003) (internal citations omitted). Under Rule 1:7-4(a),
the judge must, "by an opinion or memorandum decision, either written or oral,
find the facts and state its conclusions of law thereon . . . every motion decided
by a written order that is appealable as of right." Failure to provide findings of
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facts and conclusions of law "constitutes a disservice to the litigants, the
attorneys and the appellate court." Curtis v. Finneran, 83 N.J. 563, 569-70
(1980) (quoting Kenwood Assocs. v. Bd. of Adj. Englewood, 141 N.J. Super. 1,
4 (App. Div. 1976)).
In issuing the October 16, 2020 order granting plaintiff leave to serve a
late notice of claim against Dr. Velazquez and State defendants, the judge stated
that she considered the opposition, reply papers, and correspondence joining the
motion. The judge wrote a brief explanation of her opinion in which she
addressed the absence of the vascular consult in plaintiff's medical charts and
two cases supporting her conclusion that plaintiff was "'reasonably unaware' of
the involvement of the proposed new parties until such time as the declination
of a vascular consult was revealed through paper discovery." Although both
parties requested oral argument on the motion, the judge issued the order with out
it. The judge granted the December 4, 2020 motion as to Dr. Chandler, which
was unopposed,3 and included one sentence in the order: "UNOPPOSED –
3
State defendants allege plaintiff's motion for leave to file late notice of claim
against Dr. Chandler was unopposed because it was never served upon Dr.
Chandler's counsel because although plaintiff's counsel certified service was
made via eCourts, State defendants were not yet parties to the action and did not
receive the eFiled documents.
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Moving party conducted a diligent search which did not reveal the information
needed to file this claim until recently."
The judge explained her findings of law and fact when issuing the October
16 order, and when giving her oral opinion on the motion for reconsideration.
Although her findings were brief in the October 16 order, the judge referenced
two cases: Ben Elazar, 230 N.J. 123; and Caravaggio, 166 N.J 237. Both cases
involve applying the discovery doctrine to determine the date of accrual. The
judge further found that plaintiff was "reasonably unaware," thus permitting the
filing of a late notice of claim. The judge's October 16 order and her oral
decision on the motion for reconsideration provided sufficient findings for the
litigants.
The judge conducted oral argument on State defendants' motion for
reconsideration. The judge issued an oral opinion addressing the arguments,
discussed her reasoning, and stated that it was her determination "the cause of
action against Drs. Velazquez and Chandler accrued, at the earliest, May [20],
2020, when the written discovery called attention to this non-consult consult, if
you will." Although the judge should have granted oral argument on the October
16 motion or at least given her reasons for denying oral argument, ultimately,
State defendants' due process rights were not violated. As State defendants had
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the opportunity to argue the merits of the motions for leave to file late notice as
to both Dr. Velazquez and Dr. Chandler during oral argument on the motion for
reconsideration, there was no violation of due process. See Filippone v.
Lee, 304 N.J. Super. 301, 306 (App. Div. 1997).
To the extent we have not expressly addressed any of State defendants'
remaining arguments, they are without sufficient merit to warrant discussion in
a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
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