A two Judge Panel of the Appellate Division on November 27, 2013 found that the Trial Court erred by disallowing plaintiff’s request to name a doctor as an additional party beyond the Statute of Limitations. The Court followed the analysis of Lopez and its five factors and determined that in totality there was basis for the relief sought and plaintiff must be able to join this additional party.
This matter involved the plaintiff claiming that she was not able to identify a particular doctor who participated in her hysterectomy procedure because the doctor was not specifically named on the Operative report and she had never received any billing/invoicing from this doctor and no other physician including the lead surgeon, Robert F. Mohr, M.D. advised plaintiff that this additional doctor was involved in providing her care and treatment. Given the complications from the surgery and the ultimate claims against Dr. Mohr and others, it was learned through the discovery process that another physician took part in the surgery whose negligence may have been a substantial factor or contributed to the alleged malpractice and ensuing injuries. The Trial Judge had acknowledged that when the Complaint was filed there was no indication there was an unidentifiable physician who may have had something to do with the case, but determined that the plaintiff, or her lawyers before the two year statute expired, could have looked further into the nursing entries which in passing only, mentioned this additional doctor. A crux to the argument was that the Operative report’s omission of this doctor’s identity violated N.J.A.C. 13:35-6.5 and thus plaintiff was permitted to reasonably rely on the Operative Report as identifying those who were involved in the surgical procedures.
This Panel of the Appellate Division reiterated the relevant factors for equitable tolling as set forth in the Lopez decision which include (1) the nature of the alleged injury; (2) the availability of witnesses and written evidence; (3) the length of time that has elapsed since the alleged wrongdoing; (4) whether the delay has been to any extent deliberate or intentional; and (5) whether the delay may be said to peculiarly or unusually prejudice the defendant. See, Lopez v. Swyer, 62 N.J. 267 (1973).
It was also determined to be significant that during the litigation itself the defendants had provided the plaintiff with Interrogatory answers that “masked the [third-party doctor’s] involvement”. The Appellate Division was satisfied that the plaintiff and counsel acted with “prudence and reasonable diligence in pursuing a potential claim against the [third-party doctor] once it was learned of his involvement in the surgery at a 2012 deposition of Dr. Mohr. The Appellate Division confirmed that plaintiff’s delay was neither deliberate nor intentional, but resulted from the highly unusual circumstances that were, in this instance, created solely by others.