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With New Jersey's four public medical schools, public schools of nursing, dentistry and other biomedical and health sciences professions, affiliated teaching hospitals, state hospitals and even private hospitals that are clinically affiliated with public medical schools, it is statistically inevitable that medical malpractice counsel will, at some point, need to navigate New Jersey's Tort Claims Act (TCA).

To be clear: Doctors, residents, nurses and many other health care professionals involved in a client's medical care may have been New Jersey employees working within the scope of their state employment at the time of the negligence. N.J.S.A. 59:2-2(a). If so, they are afforded immunity, along with governmental entities, from suit under the TCA unless a claim is brought in accordance with the procedures set forth in the Act.

Notice of Claim under the Act is jurisdictional, and failure to satisfy the TCA's requirements constitutes an absolute bar to recovery. Accordingly, being able to navigate the TCA is equally as important in medical malpractice litigation as is obtaining and analyzing medical records, working with experts, taking depositions, and effectively trying your client's case.

Below are six practice pointers for the medical malpractice attorney who must contend with New Jersey's Tort Claims Act.

#1: 90-Day Notice Period (and Extension)

Plaintiffs' medical malpractice counsel uninitiated with the Tort Claims Act may be shocked to learn that in order to bring a claim against a public entity or employee, notice must be provided no later than 90 days after accrual of the cause of action, pursuant to N.J.S.A. 59:8-8.

We'll get to what "accrual" means later in this article. But for now, consider how many potential clients contact you within 90 days of alleged acts of malpractice. Don't panic: The TCA provides, pursuant to N.J.S.A. 59:8-9, that the notice period may be extended to one year after the accrual of a cause of action if the claimant demonstrates "extraordinary circumstances" for the delay, and the public entity or the public employee has not been substantially prejudiced.

In Lowe v. Zarghami, 158 N.J. 606 (1999), the New Jersey Supreme Court characterized "extraordinary circumstances" as an "imprecise standard" pursuant to which each case will depend on its own circumstances. Notably, "neither inattention nor incompetence of counsel meets the extraordinary circumstances test." D.D. v. UMDNJ, 213 N.J. 130, 135 (2013).

#2: Determining When Notice Is Required

Every time a potential client contacts you with a medical malpractice case, the possibility that doctors, nurses, hospital staff and other health care professionals will require a Notice of Claim should be high on your radar.

Unfortunately, there is no central repository by which counsel can check whether a health care provider is a state employee. You must figure that out. Certainly, there are circumstances when your "antenna" should automatically go up―such as when an act of alleged malpractice occurred at University Hospital in Newark, which is a state-owned teaching hospital, or at Cooper University Hospital, which is the teaching hospital affiliated with Cooper Medical School of Rowan University, which is a public medical school.

Other times, the need for a Notice of Claim will be less obvious. Note that private hospitals can have affiliate contracts with public medical schools. While public employees are required to identify themselves as such either orally or in writing to patients treated at private clinical affiliates, see Lowe v. Zarghami, 158 N.J. 606 (1999), clients who have been through a medical ordeal can be unreliable when it comes to providing these details.

Although a bit onerous, checking university and medical school websites is a good starting point for researching whether a health care provider is a state employee. Other sources of information include the health care practitioner's hospital profile or even a simple Google search. Also, don't be afraid to consult members of your professional network. Over time, many plaintiffs' attorneys develop relationships with defense counsel, risk managers and claims representatives who handle these claims, and it is OK to ask them.

If you have any indication whatsoever that a health care provider may have been a public employee, err on the side of caution and file the Notice of Claim. There is no downside to doing so. In fact, the TCA recognizes that the claimant may not know the name of the public entity or employee who caused the harm. N.J.S.A. 59:8-4(e).

#3: When You Can't Identify Individuals by Name

There will be times when the deadline to file Notice of Claim is fast-approaching, but despite your efforts, you will not be able to identify by name the individuals who treated your client and whether those individuals are entitled to a Notice of Claim.

When that happens, the recommended best practice is to send Notice of Claim to the public entities where your client's medical care took place. Specify in the Notice of Claim that upon information and belief your client may have been treated by as yet unidentified individual health care providers whose names have not yet been ascertained through the exercise of due diligence, and that it is unknown whether such individuals are entitled to Notice of Claim.

Once you identify these providers, you can file an amended Notice of Claim if necessary.

#4: The Meaning of 'Accrual'

One of the most heart-stopping moments for plaintiffs' medical malpractice counsel is when we think a potential client, who has been harmed by a health care provider who is a governmental entity or employee, is barred from bringing a lawsuit because the 90-day period to give notice (or the one-year extension) has passed. Again, don't panic. The law is clear that the timeliness of notice for both periods starts with a determination of when the cause of action accrued. Beauchamp v. Amedio, 164 N.J. 111 (2000). The case law further provides that the "accrual" date for medical malpractice claims is not necessarily the date of the negligence. In short, the discovery rule still applies, even in cases involving governmental entities and employees. Id.

Here's a quick overview of some of the relevant cases that address the discovery rule: the New Jersey Supreme Court stated in Lopez v. Swyer, 62 N.J. 267 (1973), that the discovery rule centers upon the injured party's knowledge concerning the origin and existence of his injuries as related to the conduct of another person. For nearly 40 years, New Jersey law has held that a cause of action accrues when the injured party has knowledge that he or she was injured due to another's fault. Lynch v. Rubacky, 85 N.J. 65, 70 (1981). In medical malpractice cases, courts must consider the "nature of the injury and the difficulty inherent in discovering certain types of injuries," pursuant to Vispisiano v. Ashland Chemical Company, 107 N.J. 416 (1987).

Note that there is no tolling of the limitations period in a wrongful death action. The action accrues on the date of death. See N.J.S.A. 2A:31-3.

#5: What to Include in Your Client's Notice of Claim

Pursuant to N.J.S.A. 59:8-4, the Notice of Claim must contain information including the name and address of the claimant; the date, place and other circumstances of the occurrence giving rise to the claim; a description of the injury; the name or names of the public entity, employee or employees causing the injury, if known; and to the extent they are known, an estimate of the amount of damages claimed as of the date of the notice.

#6: Presentation of Claims and When to File Suit

The final consideration in navigating the Tort Claims Act is understanding how to present your client's claim and when to file suit.

With respect to presenting your client's claim, N.J.S.A. 59:8-10 provides:

• A claim is considered presented to the public entity when it is either hand-delivered or mailed via certified mail. Pursuant to N.J.S.A. 59:8-7, claims against the State must be filed with either the Attorney General or the department or agency involved. Forms are available online and should be sent to the Tort and Contract Unit, Department of the Treasury, Bureau of Risk Management, at the address provided. While the Act does not require that the facility where the malpractice occurred be notified of the potential claim, there is no harm in providing a copy to the risk manager and general counsel of the facility.
• The notice is deemed timely even if it is not hand-delivered or mailed via certified mail, if it is actually received by the Attorney General or the office of the state agency involved in the action or the local public entity. However, to reduce anxiety, I suggest you serve the notice by certified mail.
• Service of notice upon the public entity constitutes service upon the public employee.

With respect to filing suit, N.J.S.A. 59:8-8 provides that after the expiration of six months from the date notice of claim is received, the claimant may file suit in an appropriate court of law.

Final Thoughts

While navigating New Jersey's Tort Claims Act may not be what you expected to be doing as a medical malpractice litigator, the good news is that―like all aspects of plaintiffs' medical malpractice practice―a job well-done is extremely rewarding, for both you and your clients.

 

Patricia M. Giordano is a partner at Feldman Shepherd Wohlgelernter Tanner Weinstock Dodig in Philadelphia. She sits on the Executive Committee of the New Jersey Association for Justice, and, beginning in June, she will serve as the organization's 2nd Vice President. She is also a co-chair of NJAJ's Medical Malpractice Committee. She can be reached at [email protected].