JOSEPH D. MILLS VS. DR. RICHARD J. MILLS (L-5549-15, BERGEN 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NOT FOR PUBLICATION WITHOUT THE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-2191-15T4
JOSEPH D. MILLS,
Plaintiff-Appellant,
v.
DR. RICHARD J. MILLS,
DR. PHILIP H. TSAI,
HOMEWELL SENIOR CARE,
IVY FLORENZ, a/k/a
IVY LORENZ,
Defendants-Respondents.
____________________________________________
Argued May 23, 2017 – Decided June 1, 2017
Before Judges Yannotti and Fasciale.
On appeal from Superior Court of New Jersey,
Law Division, Bergen County, Docket No. L-
5549-15.
Richard S. Mazawey argued the cause for
appellant (Law Offices of Richard S. Mazawey,
attorneys; Mr. Mazawey, on the brief)
Lewis M. Markowitz argued the cause for
respondent Dr. Richard J. Mills (Gutterman,
Markowitz & Klinger, LLP, attorneys; Mr.
Markowitz, of counsel and on the brief; Lauren
B. DiSarno, on the brief).
Michael J. Keating argued the cause for
respondent Dr. Philip H. Tsai (Dughi, Hewit &
Domalewski, attorneys; Mr. Keating; of
counsel; Cyndee L. Allert, on the brief).
Ross V. Carpenter argued the cause for
respondent Homewell Senior Care (Hardin Kundla
McKeon & Poletto, P.A., attorneys; Paul Daly,
of counsel and on the brief; Mr. Carpenter,
on the brief).
PER CURIAM
Plaintiff Joseph D. Mills appeals from orders entered by the
Law Division on: September 18, 2015, granting summary judgment to
defendant Homewell Senior Care (Homewell); October 23, 2015,
denying reconsideration of the September 18, 2015 order; December
4, 2015, granting summary judgment to defendant Dr. Richard J.
Mills; December 18, 2015, dismissing the complaint as to defendant
Dr. Philip H. Tsai; and February 8, 2016, amending and correcting
the order entered on December 4, 2015. We affirm.
I.
On June 8, 2015, plaintiff filed a pro se complaint in the
Law Division against Dr. Mills, Dr. Tsai, Homewell, and Homewell's
employee Ivy Florenz (also known as Ivy Lorenz). Plaintiff asserted
claims of negligent infliction of emotional distress against all
defendants. The claims arise from the death of plaintiff's father,
Joseph R. Mills (decedent).
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According to the complaint, in January 2009, decedent was
diagnosed with cancer. Thereafter, decedent and his wife came to
reside with plaintiff at his home in New Jersey. In March 2009,
decedent's wife died. Plaintiff alleged that while decedent was
grieving over the loss of his wife, his brother, Dr. Mills, "seized
this opportunity to gain control over [his father's] affairs."
Plaintiff further alleged that Dr. Mills, a neurologist, subjected
decedent to negligent treatment, which contributed to his weakened
immune system.
Plaintiff alleged that Dr. Mills manipulated the staff at
certain medical facilities where decedent was treated. He claimed
that Dr. Mills tortured and verbally abused decedent; acted to
keep him in a care facility when he wanted to leave; manipulated
a cardiologist and forced decedent to undergo defibrillator
surgery; and led decedent to believe he was suffering from a "rare
and horrible" neurological disorder and would die a "prolonged
horrible death."
Plaintiff further alleged that decedent stopped eating and
started removing his oxygen mask from his face. He claimed that
decedent was suicidal in the hospital where he was being treated,
and Dr. Tsai was negligent in releasing him to return home under
home hospice care. Plaintiff claimed that decedent should have
been placed in a psychiatric ward.
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According to plaintiff, Homewell, the home hospice care
provider, hired Ms. Florenz to act as a live-in nurse for decedent.
Plaintiff alleged that two nurses were required to watch decedent
continuously. He claimed that on May 24, 2009, Ms. Florenz fell
asleep, "allowing" decedent to commit suicide by removing his
oxygen mask.
Plaintiff alleged that as a result to these and other actions,
he is "tormented by extremely stressful thoughts." He asserted
that he is plagued, day and night, with traumatic and horrible
memories, including Dr. Mills' "cruelty[,] manipulation, and
virulent abuse treatment" of his father. He asserts that he was
powerless to protect his father from Dr. Mills. He claims that he
is afraid of Dr. Mills, and is "emotionally scarred for life" as
a result of the behavior he was forced to witness.
On August 14, 2015, Homewell filed a motion for summary
judgment seeking dismissal of all claims and cross-claims asserted
against it.1 Plaintiff opposed the motion. The Law Division judge
entered an order dated September 18, 2015, granting Homewell's
motion and dismissing the claims against it. In an accompanying
opinion, the judge found that plaintiff's claims against Homewell
1
The record does not disclose whether Florenz was ever served
with the complaint. Homewell's motion only sought summary judgment
on the claims asserted against it.
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were barred by the applicable statutes of limitations. The judge
also found that plaintiff's claim of negligent infliction of
emotional distress failed as a matter of law because plaintiff did
not personally observe his father's death.
On September 30, 2015, plaintiff filed a motion for
reconsideration of the September 18, 2015 order. The court entered
an order dated October 23, 2015, denying the motion. In a rider
to the order, the judge stated that plaintiff had not shown any
basis for reconsideration. Plaintiff then filed a motion on short
notice to rescind the October 23, 2015 order, and to vacate the
September 18, 2015 order.
On November 5, 2015, Dr. Mills filed a motion for summary
judgment, seeking the dismissal of all claims and cross-claims
against him. Dr. Mills argued that the claims against him were
time-barred. Plaintiff opposed the motion.
On November 25, 2015, Dr. Tsai filed a motion to dismiss the
claims against him because plaintiff had not complied with the
Affidavit of Merit Statute (AMS), N.J.S.A. 2A:53A-27. Plaintiff
filed a cross-motion, which sought the denial of Dr. Tsai's motion
but no affirmative relief.
The judge entered an order dated December 4, 2014, granting
Dr. Mills' motion. In the written opinion filed with the order,
the judge stated that plaintiff's claim was barred by the statute
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of limitations for negligence actions, N.J.S.A. 2A:14-2(a). The
judge determined that the discovery rule did not apply, and the
doctrine of substantial compliance was not applicable. In
addition, the judge found that the statute of limitations should
not be tolled on equitable grounds.
On December 4, 2015, the judge also entered an order on
plaintiff's request to rescind the October 23, 2015 order and
vacate the September 18, 2015 order. In the rider appended to the
order, the judge stated that plaintiff had not provided any basis
to rescind or vacate the orders. The order dated December 4, 2015,
erroneously stated, however, that the orders had been rescinded.
On December 18, 2015, the judge entered an order granting Dr.
Tsai's motion to dismiss. In his written opinion, the judge stated
that plaintiff had asserted a claim of professional negligence
against Dr. Tsai. Therefore, the AMS applied to the claim. Because
plaintiff had not filed an affidavit of merit as required by the
AMS, the judge dismissed the claim against Dr. Tsai.
On February 8, 2016, the judge entered an order amending the
December 4, 2015 order on plaintiff's motion to rescind the October
23, 2015 order and to vacate the September 18, 2015 order. The
amended order stated that plaintiff's motion was denied "in its
entirety." Plaintiff's appeal followed.
On appeal, plaintiff raises the following argument:
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THE TRIAL COURT COMMITTED REVERSIBLE ERROR
WHEN IT DENIED APPELLANT THE OPPORTUNITY [FOR]
A LOPEZ HEARING UNDER LOPEZ V. SWYER, 62 N.J.
267 (1973) TO DETERMINE WHETHER THE DISCOVERY
RULE SHOULD HAVE APPLIED TO THE PLAINTIFF-
APPELLANT'S NEGLIGENT INFLICTION OF EMOTIONAL
DISTRESS CLAIM.
II.
We note initially that the motion judge did not dismiss
plaintiff's claim against Dr. Tsai on the basis of the statute of
limitations. As we have explained, the judge determined that
plaintiff had asserted a claim of professional negligence against
Dr. Tsai, which was subject to the AMS. N.J.S.A. 2A:53A-27.
Therefore, the AMS required plaintiff to file an affidavit
of merit from "an appropriate licensed person" stating that "there
exists a reasonable probability that the care, skill or knowledge
exercised or exhibited in the treatment, practice or work that is
the subject of the complaint, fell outside acceptable professional
or occupational standards or treatment practices." Ibid.The record shows that Dr. Tsai is a board-certified specialist
in oncology, and Dr. Tsai was the attending oncologist for
decedent's treatment after his admission to the hospital. In his
complaint, plaintiff alleged that Dr. Tsai had wrongfully
discharged decedent from the hospital and allowed him to return
home, despite his knowledge of decedent's suicidal tendencies and
his history of removing his oxygen mask.
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Plaintiff claims that fourteen hours after Dr. Tsai
discharged decedent from the hospital, decedent took his own life
by removing his oxygen mask. He also alleges that Dr. Tsai knew
that decedent had refused to take his oral anti-depressant
medication, but failed to prescribe an intravenous substitute.
However, on appeal, plaintiff does not argue that the trial
court erred by granting Dr. Tsai's motion to dismiss for
plaintiff's failure to serve an affidavit of merit. It is well
established that issues not briefed on appeal are deemed waived.
Gormley v. Wood-El, 218 N.J. 72, 95 n.8 (2014); Sklodowsky v.
Lushis, 417 N.J. Super. 648, 657 (App. Div. 2011).
Therefore, we affirm the trial court's order dismissing the
claims against Dr. Tsai.
III.
We next consider plaintiff's argument that the trial court
erred by granting summary judgment in favor of Homewell and Dr.
Mills. As noted, plaintiff contends the court should have conducted
a Lopez hearing to determine when his causes of action against
Homewell and Dr. Mills accrued.
An appellate court reviews an order granting a motion for
summary judgment "in accordance with the same standard" that
applies to the trial court's decision on the motion. Globe Motor
Co. v. Igdalev, 225 N.J. 469, 479 (2016) (quoting Bhagat v. Bhagat,
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217 N.J. 22, 38 (2014)). That standard requires the trial court
to grant summary judgment "if the pleadings, depositions, answers
to interrogatories and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any
material fact challenged and that the moving party is entitled to
a judgment as a matter of law." R. 4:46-2(c).
The court "should first decide whether there was a genuine
issue of material fact, and if none exists, then decide whether
the trial court's ruling on the law was correct." Henry v. N.J.
Dept. of Human Servs., 204 N.J. 320, 330 (2010). In doing so, the
court "must view the evidence in the light most favorable to the
non-moving party and analyze whether the moving party was entitled
to judgment as a matter of law." W.J.A. v. D.A., 210 N.J. 229, 238
(2012).
Here, plaintiff argues that the discovery rule applies to his
claims against Homewell and Dr. Mills for negligent infliction of
emotional distress. He alleges the negligent acts of these
defendants led to the untimely death of his father on May 24,
2009, which he claims to have witnessed. Plaintiff alleges he
suffered a complete mental and emotional breakdown due to his
discovery of newly-obtained information and records related to his
father's death.
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Plaintiff further alleges that in May 2015, he discovered
"for the first time" that his father was "the victim" of
defendants' negligence. Plaintiff asserts that although he knew
he suffered an injury in May 2009, when he allegedly witnessed his
father's death, he claims he did not know that the injury was
attributable to the fault of defendants.
As the motion judge recognized, a claim for negligent
infliction of emotional distress must be filed within two years
after the cause of action "shall have accrued." N.J.S.A. 2A:14-
2(a). The "discovery rule" is an equitable principle that serves
to ameliorate the harsh results that can sometimes flow from the
mechanical application of a statute of limitations. Henry, supra,
204 N.J. at 333.
The discovery rule tolls the running of the statutory
limitations by "postponing the accrual of a cause of action until
the plaintiff 'learns, or reasonably should learn, the existence
of that state of facts which may equate in law with a cause of
action.'" Vispisiano v. Ashland Chem. Co., 107 N.J. 416, 426 (1987)
(emphasis omitted) (quoting Burd v. N.J. Tel. Co., 76 N.J. 284,
291 (1978)). The rule applies when an individual, by the exercise
of reasonable diligence, should have discovered that he or she has
a basis for an actionable claim. Staub v. Eastman Kodak Co., 320
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N.J. Super. 34, 42-43 (App. Div. 1999) (citing Vispisiano, supra,107 N.J. at 419)).
Discovering that one might have a basis for
an actionable claim means perceiving an injury
and believing, or having reason to believe --
with a degree of firmness that would lead a
reasonable person to investigate the matter
if he is interested in seeking redress -- that
his injury was probably caused by the fault
of another.
[Id. at 45.]
In this case, the motion judge determined that plaintiff's
cause of action accrued on May 24, 2009, when decedent allegedly
committed suicide as a result of the negligent actions of Dr.
Mills and Homewell. The judge noted that plaintiff alleged that
he began to suffer emotional distress in 2009, but claimed he did
not fully appreciate the effect of his father's death until several
years later, when he allegedly suffered a breakdown after reviewing
medical records and documents that detailed the alleged negligent
acts of Dr. Mills, Homewell, and others.
The judge concluded, however, that plaintiff knew or should
have known of defendants' alleged negligent conduct at or about
the time his father died. The judge noted that while plaintiff did
not then have all of the medical records and documents related to
his father's care, plaintiff "had knowledge of and witnessed many
acts that formed the basis of a potentially actionable claim."
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The record supports the motion judge's ruling. The evidence
before the court on the summary judgment motions shows that
plaintiff personally viewed some of the alleged wrongful acts of
Homewell and Dr. Mills. He believed that his father's death on May
24, 2009, was in part due to these negligent acts. Plaintiff
asserted that after he allegedly witnessed his father's death, he
began to experience emotional distress.
Thus, the record shows that plaintiff's cause of action for
negligent infliction of emotional distress accrued on May 24,
2009, when he allegedly witnessed his father's death and began to
experience emotional distress. At that time, plaintiff knew he had
sustained an injury. Plaintiff also knew or should have known at
that time that he had an actionable claim against Homewell and Dr.
Mills. The motion judge correctly determined that, in light of the
facts as alleged, the discovery rule did not apply to plaintiff's
claims.
The judge also correctly determined that the substantial
compliance doctrine was inapplicable because plaintiff failed to
take any action to assert his claims in the period required for
the filing of his claims. See Galik v. Clara Maass Med. Ctr., 167
N.J. 341, 353 (2001) (noting that the substantial compliance
doctrine requires, among other things, a series of steps taken to
comply with the applicable statute (citing Bernstein v. Bd. of
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Trs. of the Teachers' Pension and Annuity Fund, 151 N.J. Super.
71, 76 (App. Div. 1977))).
In addition, the judge correctly found that the equitable
tolling doctrine was not applicable. Equitable tolling may be
applied when the plaintiff is not able to identify an alleged
tortfeasor during the limitations period. See Bernoskie v.
Zarinsky, 344 N.J. Super. 160, 167-68 (App. Div. 2001) (holding
that equitable tolling was warranted where the plaintiff was
prevented from filing an action against persons who killed her
husband because they escaped detection and apprehension for forty
years).
Here, plaintiff knew or should have known of defendants'
alleged wrongful conduct in 2009. Moreover, plaintiff allegedly
witnessed his father's death in May 2009 and allegedly began to
experience emotional distress at that time. Plaintiff did not,
however, file his complaint until 2015. Under these circumstances,
the equities do not favor tolling the statute of limitations.
We note that, in responding to plaintiff's arguments, Dr.
Mills argues that the trial court's order granting summary judgment
in his favor also should be affirmed because the trial court
correctly found that plaintiff did not present sufficient evidence
to support a claim for negligent infliction of emotional distress.
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Under Portee v. Jaffee, 84 N.J. 88, 101 (1980), a plaintiff
asserting such a claim must show
(1) the death or serious physical injury of
another caused by defendant's negligence; (2)
a marital or intimate, familial relationship
between plaintiff and the injured person; (3)
observation of the death or injury at the
scene of the accident; and (4) resulting
severe emotional distress.
Here, the motion judge determined that plaintiff's claim
failed because plaintiff did not personally observe his father's
suicide. According to the judge, the home-health aide advised
plaintiff of his father's death after his father had already died.
Dr. Mills argues that, even if plaintiff observed his father's
death as he claims, his cause of action fails because he alleges
he did not suffer severe emotional distress until 2015, when he
reviewed the his father's medical records.
Because we conclude that the trial court correctly determined
that plaintiff's claim against Dr. Mills was not filed within the
time required by the applicable statute of limitations, we need
not consider this alternative ground for affirming the trial
court's order.
Affirmed.
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