New Jersey's Tort Claims Act

The TCA provides a number of immunities to public entities and their employees as well as limitations on the claims that can be advanced on behalf of a plaintiff. In addition to the limitations to suit, the TCA requires claimants to file a notice of claim “within 90 days of the accrual of the claim.” The TCA defines “accrual” as “the date on which the claim accrued and shall not be affected by notice provisions contained herein.” N.J.S.A. 59:8-1. But New Jersey's legislature has not left claimants completely without recourse; in the event a notice of claim is not filed within 90 days of the accrual date, a claimant may seek permission to file a late notice of claim within one year of the accrual date if “extraordinary circumstances” are demonstrated.

Starting the Clock

Usually, accrual occurs when a tort is committed, or on the date on which the injury occurs. In medical malpractice cases, that is generally the date of the alleged medical negligence. But despite courts utilizing this general principle for accrual for purposes of the two-year statute of limitations, it has not been widely employed in calculating the 90-day time frame for filing a Notice of Claim against medical providers entitled to the protections of the TCA.

Since the TCA's enactment, plaintiffs have argued that the strict 90-day window is inequitable and prejudicial to injured parties. This is especially true in instances where physicians employed by a public entity (such as University of Medicine and Dentistry of New Jersey (UMDNJ)/Rutgers) are working at private hospitals. Thus, when courts have been faced with applications to dismiss for failing to timely file a notice of claim, they have had to rule on when the claim accrued.

Biassou Offers Fair Rule

A review of the following case law, in addition to oral argument before both the trial court and Appellate Division, led to a decision in Biassou that can be viewed as pragmatic and fair to all diligent parties.

New Jersey's Supreme Court held in Eagan v. Boyarsky, 158 N.J. 632 (1999), that the one-year lawsuit filing period under N.J.S.A. 59:8-9 is tolled under certain circumstances. In Eagan , the plaintiff's physician referred him to two doctors, Dr. Boyarsky and Dr. Mackenzie, both of whom performed surgery on the plaintiff on Oct. 25, 1994 at Robert Wood Johnson University Hospital (RWJUH). Following the surgery, the plaintiff complained of symptoms for which he consulted three doctors, all of whom advised him that his symptoms were due to injuries that occurred during the October 1994 surgeries. Both doctors were UNDNJ public employees. Counsel filed a medical malpractice action. In their answer, the physicians asserted their defense under Title 59, and filed a motion to dismiss for failure to serve a notice of claim as required by the TCA. That motion was granted on Oct. 24, 1997.

In analyzing the facts, the Eagan court found that the record contained no evidence that the plaintiff had any information about the doctors' employment status until 17 months after the cause of action accrued. Holding that the legislature did not contemplate that the one-year filing limit would be used as a bar to a plaintiff-patient from pursuing a malpractice claim against a physician whom he had no reason to know was a public employee, the court held that in such circumstances, the legislature instead intended the one-year ban provided under N.J.S.A. 59:8-9 to be tolled, and that the plaintiff should be entitled to file a late notice of claim.

In Biassou, the plaintiffs claimed they were unaware of the defendant physician's status as a UMDNJ employee until his answer was filed; thus, they asserted they could not have sought leave to file a late notice of claim within 90 days, or even within one year, of the accrual date. Therefore, the question in Biassou was this: By what date must leave be sought to file a late notice of claim in circumstances where the tortfeasor's status as a state employee is not known to the claimant until the defendant's answer is served?

Under Eagan, when the defendant's status as a state employee is not known to the plaintiff until the defendant's answer is filed, the one-year limit under N.J.S.A 59:8-9 is tolled until the plaintiff learns of the defendant's status as a state employee. The statute then provides that the plaintiff must file a motion for leave to serve a late notice of claim within a “reasonable time.”

While the Supreme Court has not addressed the issue as set forth in Biassou ' which is what constitutes a “reasonable time” within which a claimant must seek leave to file a late notice of claim under N.J.S.A.59:8-9 ' the Appellate Division and a secondary source have. “Leave to file a late notice of claim must be sought within a reasonable time after the abatement of whatever conditions created sufficient reasons for the late filing in the first place.” Comments to N.J.S.A. 59:8-9, citing Wood v. County of Burlington, 302 N.J. Super. 371, 380 (App. Div. 1997).

In Wood, 302 N.J. Super. at 371, the claimant served a Notice of Claim on Florence Township on March 1, 1995, relative to claims that accrued on Dec. 1 and 2, 1994. Also on March 1, 1995, the Florence Township Administrator mailed to the claimant's attorney a copy of Florence Township's own tort claim form, which it had adopted pursuant to N.J.S.A. 59:8-6. The plaintiff never completed that form. On Dec. 1, 1995, the plaintiff filed a motion in the Law Division for an order declaring that the previously filed notice of tort claim was sufficient for permitting the plaintiff to file a late notice of claim in accordance with N.J.S.A. 59:8-9. The trial court granted the plaintiff's motion, and Florence Township appealed.

The Appellate Division found that the trial court abused its discretion in granting the plaintiff's motion, finding that the plaintiff never provided reasons, let alone extraordinary circumstances, for failing to file the statutorily mandated claim form within the time provided by N.J.S.A. 59:8-8 or for failing to move for leave to file a late notice within a reasonable time thereafter under N.J.S.A. 59:8-9. The appellate panel further found that there was no explanation for the plaintiff waiting nine months before the filing of the motion. The Appellate Division reasoned that to allow the plaintiff's claim would render meaningless the purpose of the 1994 amendment to N.J.S.A. 59:8-9, which added the “reasonable time” requirement to N.J.S.A. 59:8-9, along with elevating the standard for a late notice from “sufficient reasons” to “sufficient reasons constituting extraordinary circumstances.” Hence, the Appellate Division in Wood found that permitting a late notice of claim after a nine-month delay, absent any articulated reason for the delay, was an abuse of discretion and contrary to the legislature's intent.

Support of the Biassou Appellate Division's application of a 90-day period to seek leave to file a late notice of claim after learning the tortfeasor is a public employee is found in Blank v. City of Elizabeth, 318 N.J. Super. 106, 113 (App. Div.), aff'd as mod. 162 N.J. 150 (1999). As put before the Appellate Division in Biassou and as a matter of policy, there is a distinction between knowing that one has a cause of action against a public entity and not pursuing it properly and, on the other hand, not timely knowing or being chargeable with timely knowledge that a public entity may be liable for the injury. In the latter instance, the discovery rule is applicable, thereby triggering the running of the 90-day period prescribed by the legislature.

As in the cases of Biassou and Blank, where the claimant does not know nor is chargeable with knowing the tortfeasor's status as a public entity or employee within 90 days, the 90-day period for purposes of the notice provisions of the TCA begins to run on the date the claimant knew or became chargeable with knowing that the tortfeasor is a public entity or employee.

In Biassou, the trial court was found to have correctly applied the law in holding that the date upon which the plaintiff acquired actual knowledge that the defendant physician was a state employee was the date on which the 90-day period under the TCA was triggered. The plaintiff filed no notice of claim within that period. Alternatively, assuming that the “reasonable time” standard is applicable as opposed to the 90-day period, the plaintiff still did not provide the motion judge with any support for the proposition that 6.5 months was a reasonable time within which to file a motion for leave to file a late notice of claim.

In defending the inaction, the appellant in Biassou first relied on Murray v. Barnagat Light House, 192 N.J. Super. 399 (Law Div. Hudson 1993), affirmed 200 N.J. Super. 534 (App. Div. 1985). In Murray, a premises liability case, the claimant fell at Barnegat Light House on Aug. 10, 1982, and suffered injuries that incapacitated her for a period of time. She consulted with counsel on Jan. 23, 1983. The following day, counsel wrote to Barnegat Light House notifying it of Ms. Murray's injury. On July 20, 1983, the plaintiff filed a motion for leave to file a late notice of claim that was returnable on Aug. 12, 1983, two days after the one-year statutory “grace period.”

The issue presented to the Appellate Division in Murray , unlike the issue presented in Biassou , was whether an order granting permission to he plaintiff to file a late notice of claim under the provisions of N.J.S.A. 59:8-9 of the New Jersey Tort Claims Act, N.J.S.A. 59:1-1, et seq ., can be entered nunc pro tunc. The Appellate Division found that the delay in hearing the motion was due to the administrative procedures of the court, not the fault of the claimant, and permitted the entry of the order nunc pro tunc.

Another case of relevance that appellant cited was Lowe v. Zarghami, 158 N.J. 606 (1999), wherein the plaintiff underwent surgery at a private hospital by a surgeon employed by UMDNJ on Sept. 26, 1994. In August 1995, she was advised that her post-operative medical problems might be related to improper medical care. In December of that year, the plaintiff's attorney advised her that this was a valid medical malpractice claim, and the complaint was filed on Feb. 8, 1996. On April 19, 1996, the defendant physician filed a motion to dismiss for failure to serve a notice of claim as required by the Tort Claims Act. (Although not explicitly stated, it appears that this was the first time the plaintiff was notified of the defendant's status as a public employee.)

In Lowe , the plaintiff filed a motion for leave to file a late notice of claim three months after actual notice of the public employee status of the defendant physician, and within one year of the accrual of her claim. The Lowe court found that the plaintiff had demonstrated extraordinary circumstances to warrant leave to file a late notice of claim.

Conclusion

None of the cases that were put before the reviewing court in Biassou provided any support for the notion that the claimant can simply wait 6.5 months after acquiring actual knowledge of a tortfeasor's status as a state employee to seek leave to serve a late notice of claim. Parties to cases involving a public entity physician are left to argue whether, and under what circumstances, condoning delay in filing a notice of claim eviscerates the notice-of-claim provisions of the TCA in circumstances in which the tortfeasor's public employee status is not apparent to the claimant until after suit is filed. Accepting the argument that the time should be indefinitely tolled is not in accordance with the notice provisions of the TCA. The ruling that the 90-day notice period is to commence when the claimant knows or should know of the alleged tortfeasors status as a state employee recognizes the legislative intent of the TCA while preserving a plaintiff's claim.

Robert E. Spitzer, a member of this newsletter's Board of Editors, is an attorney with MacNeill, O'Neill & Riveles, where he concentrates his practice on medical malpractice and nursing home defense, as well as commercial litigation. Patricia M. Wason is an attorney with the firm. Ms. Wason was also on the Brief and successfully argued the Biassou v. Fitzsimmons matter.