SALVANELY NUNEZ VS. RUTGERS UNIVERSITY MEDICAL SCHOOL (L-1889-17, MIDDLESEX 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NOT FOR PUBLICATION WITHOUT THE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
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0779-17T2

SALVANELY NUNEZ,

Plaintiff-Appellant,

v.

RUTGERS UNIVERSITY MEDICAL
SCHOOL, ROBERT WOOD JOHNSON
UNIVERSITY HOSPITAL, RUTGERS
ROBERT WOOD JOHNSON MEDICAL
GROUP, and DR. RACHANA TYAGI,
M.D.,

Defendants-Respondents.

Argued March 6, 2019 – Decided May 24, 2019

Before Judges Alvarez and Nugent.

On appeal from Superior Court of New Jersey, Law
Division, Middlesex County, Docket No. L-1899-17.

James D. Martin argued the cause for appellant (Martin
Kane Kuper, LLC, attorneys; James D. Martin, on the
brief).

Brett J. Haroldson, Deputy Attorney General, argued
the cause for respondents (Gurbir S. Grewal, Attorney
 General, attorney; Melissa H. Raksa, Assistant
Attorney General, of counsel; Daniel M. Vannella and
Daveon M. Gilchrist, Deputy Attorneys General, on the
brief).

PER CURIAM

This appeal involves a claim against a public entity and thus must comply

with the provisions of the Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 12-3.

Plaintiff Salvanely Nunez appeals from a September 15, 2017 order denying her

motion for reconsideration of the judge's earlier decision refusing to grant her

leave to file a late notice of claim pursuant to N.J.S.A. 59:8-9. We now reverse.

The following facts are drawn from the certifications of the parties.

Nunez, a non-English speaker, was born with scoliosis, which became

significantly exacerbated after a serious car accident and the birth of her twin

daughters, causing her severe pain and difficulty breathing. Defendant Rachana

Tyagi, M.D., an employee of defendant Rutgers University Medical School-

Robert Wood Johnson University Hospital, performed surgery on March 24,

2016, assuring Nunez it would alleviate her pain and ease her breathing. When

Nunez awakened from the surgery, she immediately experienced more not less

pain, and had neither movement nor sensation in her left leg.

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 Tyagi assured plaintiff that a second surgical procedure would resolve the

problem, explaining that a small group of patients required more extensive

procedures. Tyagi performed a second surgery on May 12, 2016.

After the surgeries, Nunez underwent months of physical rehabilitation,

and physical and occupational therapy. She never regained the use of her leg,

is now incontinent, and is wheelchair bound. During the months following the

two procedures, she was administered high doses of morphine and oxycodone

for pain and anti-depressants. Her parents and other family members traveled

to this country to assist with the care of her toddlers. Through and until

November 2016, Tyagi remained optimistic that Nunez's significantly worsened

condition would correct itself.

At the end of October, a social worker with whom Nunez was acquainted

urged her to consult with an attorney. That lawyer explained he was not

interested in her case, and that if the potential defendants were state employees,

a TCA notice would have to be filed within ninety days. Nunez claims she had

not known Tyagi was a state employee.

A second social worker with whom Nunez was acquainted advised her to

consult with another attorney. That attorney referred Nunez to present counsel.

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Present counsel met with her March 22, 2017, and immediately filed a late notice

of claim and a motion for leave to file a late notice of claim.

Tyagi explains that Nunez was not provided with an interpreter because

she had a boyfriend who translated for her. Tyagi also recalled explaining to

Nunez that because she was a state employee, the type of insurance Nunez had

would cover her medical expenses. Tyagi also points out that the English-

language consent to surgery form Nunez signed explains the treatment is

provided by New Jersey Rutgers-Robert Wood Johnson Medical School staff.

The judge ruled against Nunez on the motion for reconsideration 1 because

he considered the accrual date to have been when the first surgery occurred in

March 2016. He reasoned that when Nunez awakened to find she had lost

movement and sensation in her left leg, she should have known that the medical

care she received was negligent. In his view, Tyagi's statement to Nunez that

additional surgery would resolve the problem "provides clear notice that

something was amiss." Additionally, the judge did not consider Nunez's

physical condition created extraordinary circumstances that allowed for a filing

beyond the ninety days after her first surgery. As he put it, if he would permit

1
We were not provided with the transcript of the initial decision denying Nunez
the right to file a late notice of claim.
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it in Nunez's case, "this rule would carry no weight" if "she and every other

claimant were permitted to toll the statute of limitations as they suffer from

complications." He did not reach the issue of substantial prejudice because he

denied the motion. In his September 15, 2017 written statement of reasons

following those he orally rendered, although sympathetic to Nunez's plight, he

explained that "allowing the [p]laintiff to toll the statute of limitations would

make the rule pointless because every medical malpractice plaintiff deals with a

similar level of complications."

I.

We do not disturb the factual findings of a trial judge unless "they are so

manifestly unsupported by or inconsistent with the competent, relevant and

reasonably credible evidence as to offend the interests of justice[.]" D'Agostino

v. Maldonado, 216 N.J. 168, 182 (2013) (quoting Seidman v. Clifton Sav. Bank,

S.L.A., 205 N.J. 150, 169 (2011)). In contrast with findings of fact, a trial

judge's interpretation of the law is always reviewed de novo. Manalapan Realty,

LP v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

The TCA establishes the general immunity of public entities from tort

liability. Ben Elazar v. Macrietta Cleaners, Inc., 230 N.J. 123, 133 (2017). The

TCA requires claimants to serve public entities and public employees with a

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notice within ninety days of the accrual of a cause of action. N.J.S.A. 59:8 -3;

N.J.S.A. 59:8-8(a).

"The first task is always to determine when the claim accrued."

Beauchamp v. Amedio, 164 N.J. 111, 118 (2000). Generally, a claim accrues

"on the date on which the underlying tortious act occurred." Ben Elazar, 230

N.J. at 134 (citing Beauchamp, 164 N.J. at 117).

The discovery rule may toll the date of accrual. Beauchamp, 164 N.J. at

118. "The discovery rule tolls the commencement of the ninety-day notice

period only '[u]ntil the existence of an injury (or, knowledge of the fact that a

third party has caused it) is ascertained.'" McDade v. Siazon, 208 N.J. 463, 475

(2011) (quoting Beauchamp, 164 N.J. at 122). "[T]he accrual date is tolled from

the date of the tortious act or injury when the injured party either does not know

of his injury or does not know that a third party is responsible for the injury."

Ben Elazar, 230 N.J. at 134 (citing McDade, 208 N.J. at 475). Thus, even if the

claimant is aware that he or she is injured but does not know the injury is

attributable to another, "the discovery rule tolls the date of accrual as to that

unknown responsible party." Id. at 134-35.

The critical inquiry is "whether the facts presented would alert a

reasonable person, exercising ordinary diligence, that he or she was injured due

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to the fault of another. The standard is basically an objective one -whether

plaintiff 'knew or should have known' of sufficient facts to start the statute of

limitations running." Caravaggio v. D'Agostini, 166 N.J. 237, 246 (2001)

(quoting Baird, 155 N.J. at 72). The discovery rule also applies to the notice

requirement; the ninety-day period for filing a notice of claim is tolled "until the

injured party learns of the injury or of the third party's responsibility for that

injury." Ben Elazar, 230 N.J. at 135.

N.J.S.A. 59:8-9 governs late notices of claim:

A claimant who fails to file notice of his claim within
90 days as provided in section 59:8-8 of this act, may,
in the discretion of a judge of the Superior Court, be
permitted to file such notice at any time within one year
after the accrual of his claim provided that the public
entity or the public employee has not been substantially
prejudiced thereby. 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 showing sufficient
reasons constituting extraordinary circumstances for
his failure to file notice of claim within the period of
time prescribed by section 59:8-8 of this act or to file a
motion seeking leave to file a late notice of claim within
a reasonable time thereafter . . . .

We review the judge's decision denying reconsideration of his refusal to

allow the filing of a late notice of claim for abuse of discretion. McDade, 208

N.J. at 476-77. In this case, the judge mistakenly applied his discretion when

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he found Nunez's cause of action accrued after the first surgery and she had not

demonstrated that extraordinary circumstances existed to justify the filing of a

late notice of claim.

The Supreme Court has recognized that cases "involving medical

causation demand[] special attention due to the intrinsic hardship facing a

potential medical malpractice claimant in determining fault." Gallagher v.

Burdette-Tomlin Mem'l Hosp., 163 N.J. 38, 43 (2000). This case illustrates the

point.

Here, following the first surgery, Tyagi assured plaintiff that a second

surgical procedure would resolve the problem, explaining that a small group of

patients required more extensive procedures. Based on the doctor's

representation, Nunez could not have reasonably believed Tyagi, or anyone else

for that matter, was at fault for causing what was represented to be, in some

cases, a condition requiring more than one surgery to alleviate. She undoubtedly

would have obtained a second opinion regarding her worsened medical

condition if she had any reason to believe Tyagi was responsible for the

symptoms following her first surgery.

The same analysis might apply to the injuries that Nunez suffered

following the May 12, 2016 surgery. We need not reach that issue, however,

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because Nunez's physical and mental debilitation following that surgery

constitute extraordinary circumstances, beyond the norm, if there is one, of those

who allege their treatment provider has committed medical malpractice and seek

to file a late notice of claim. Prior to surgery, Nunez was at least mobile, if in

pain. After the second procedure, she lost the use of one leg, became

incontinent, and became wheelchair bound. Throughout, she was the single

caretaker of toddlers, and required the assistance of her family even though it

meant they had to temporarily leave their own country. Additionally, because

of pain, she was administered morphine, oxycodone, and anti-depressants, in

addition to engaging in futile efforts at rehabilitation.

Certainly, N.J.S.A. 59:8-9 "commits the authority to grant a plaintiff's

motion for leave to file late notice 'to the sound discretion of the trial court, and

[its decision] will be sustained on appeal in the absence of a showing of an abuse

thereof.'" D.D. v. Univ. of Med. & Dentistry of New Jersey, 213 N.J. 130, 147

(2013) (quoting Lamb v. Global Landfill Reclaiming, 111 N.J. 134, 146 (1988)).

"Courts faced with applications for leave to file a late notice of claim, therefore,

must proceed with their evaluation mindful of the Legislature's direction that the

proofs demonstrate circumstances that are not merely sufficient, but that they

instead be extraordinary." Id. at 149. "[I]n engaging in the analysis of

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extraordinary circumstances, the court's focus must be directed to the evidence

that relates to plaintiff's circumstances as they were during the ninety-day time

period[.]" Id. at 151.

While the statute does not define the term extraordinary circumstances,

"the meaning to be ascribed to that term has been developed on a case-by-case

basis." Rogers v. Cape May Cty. Office of Pub. Def., 208 N.J. 414, 428 (2011).

"[A] plaintiff's ignorance of the ninety-day deadline or counsel's inattention or

administrative shortcomings do not constitute extraordinary circumstances."

Ibid. (citing Zois v. N.J. Sports & Exposition Auth., 286 N.J. Super. 670, 674

(App. Div. 1996)).

"[E]xtraordinary circumstances have been found where a plaintiff had no

reason to know a public employee had injured him." Ibid. (citing Lowe v.

Zarghami, 158 N.J. 606, 629-30 (1999)). "Extraordinary circumstances have

also been found where an attorney was understandably confused over the law

regarding accrual as it pertained to the filing of notice." Ibid. (citing

Beauchamp, 164 N.J. at 123). The Supreme Court has found extraordinary

circumstances where a plaintiff did not file a timely notice of claim because she

was unaware that the defendants at a private hospital were public employees,

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but had otherwise diligently pursued the claim. Lowe, 158 N.J. at 629-31; see

also Eagan v. Boyarsky, 158 N.J. 632 (1999).

"Published authority from our Appellate Division has generally concluded

that medical conditions meet the extraordinary circumstances standard if they

are severe or debilitating." D.D., 213 N.J. at 149. "The consistent theme of

these decisions is the severity of the medical condition and the consequential

impact on the claimant's very ability to pursue redress and attend to the filing of

a claim." Id. at 150.

We are satisfied that plaintiff's extreme situation constituted extraordinary

circumstances because it had an "impact on the claimant's very ability to pursue

redress and attend to the filing of a claim." See ibid. Nunez had no reason to

suspect she had been injured by a third party at least until after the second

surgery, and then no doubt was rendered immobile by her physical condition

and depression. These were extraordinary circumstances.

Motions for reconsideration should be granted where the prior decision

overlooked law or evidence or otherwise was mistaken. Cummings v. Bahr, 295

N.J. Super. 374, 384 (App. Div. 1996). In this case, it was a misapplication of

discretion for the judge to have refused reconsideration. It was a misapplication

of this discretion for the judge to have denied leave for late filing initially.

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 Because the judge ruled against Nunez in deciding the issue of the accrual

date and extraordinary circumstances, no ruling was made as to substantial

prejudice. The record on appeal indicates none. We remand the matter, vacate

the orders denying Nunez's motions to file a late notice of claim and for

reconsideration, and remand for the filing of a complaint, answers, discovery,

and trial. That the State did not raise the issue of substantial prejudice in a

fashion we can discern from this record indicates that they are not taking that

position and do not believe substantial prejudice would result from the filing of

the late notice of claim.

Reversed and remanded.

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