WENDLASSIDA GANAME VS. UNIVERSITY HOSPITAL (L-5545-17, ESSEX 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NOT FOR PUBLICATION WITHOUT THE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-2087-17T2

WENDLASSIDA GANAME,

Plaintiff-Appellant,

v.

UNIVERSITY HOSPITAL,

Defendant-Respondent.

Submitted January 24, 2019 – Decided April 25, 2019

Before Judges Alvarez and Reisner.

On appeal from Superior Court of New Jersey, Law
Division, Essex County, Docket No. L-5545-17.

O'Connor Parsons Lane & Noble LLC, attorneys for
appellant (Paul A. O'Connor, III, of counsel; Alexandra
Loprete, on the briefs).

Gurbir S. Grewal, Attorney General, attorney for
respondent (Melissa H. Raksa, Assistant Attorney
General, of counsel; Daniel M. Vannella, Deputy
Attorney General, and Marti B. Morris, Deputy
Attorney General, on the brief).

PER CURIAM
 Plaintiff Wendlassida Ganame appeals the November 17, 2017 order

denying her reconsideration of an earlier decision that denied her leave to file a

late notice of tort claim in her medical malpractice case. The defendant is the

University Hospital, and as yet unknown and unnamed physicians, nurses, and

others who administered medical care. Because Ganame's reasons for her failure

to timely file constitute a perfect storm of factors totaling extraordinary

circumstances within the meaning of N.J.S.A. 59:8-9, we reverse.

When Ganame filed the initial application, defendant had not provided

any medical records. Ganame's certification in support of that motion states that

she did not even know the names of her healthcare providers. In support of the

motion for reconsideration, however, Ganame included the partial medical

records that University Hospital had, by the time, provided.

The hospital records revealed the following information. On October 3,

2016, Ganame, who was in labor, was admitted to the hospital in the early

morning hours suffering from "severe pre-eclampsia diagnosed by severe [blood

pressure] elevations," and "Varicella equivocal." Staff administered "500 pm

Pitocin" at 5:17 p.m. to induce labor.

The initial admission hospital records indicate that Ganame, a recent

Burkina-Faso immigrant, claimed to understand English and was fluent in

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French. The hospital staff decided not to contact the interpreter line. Ganame's

husband was also a recent immigrant from Burkina-Faso.

By the following morning, doctors performed a "[p]rimary low transverse

cesarean section" because Ganame had "failed induction, [and] severe pre-

eclampsia[.]" Ganame's son was born during this procedure.

While at the hospital, Ganame suffered from a 100 degree fever, chills,

and abdominal pain. The hospital records for October 6, 2016, at 4 p.m., state

she was at "risk for infection due to prolonged induction." Ganame was

discharged from the hospital on October 7, 2016, in the afternoon, still suffering

from pre-eclampsia.

On October 13, 2016, Ganame was readmitted at 12:20 p.m. with

"suprapubic pain, exudates at incision site, foul smelling lochia that has

worsened" since the emergent c-section, and "subjective fevers." The c-section

skin incision site was observed to be slightly open on the right lateral border and

"expressed pus with applied pressure[.]" Ganame was then diagnosed as

suffering from "Endometritis and C-section wound infection." The following

day, it was found that the c-section's surgical area appeared to have ruptured,

and that Ganame may have suffered from "early abscess formation adjacent to

her uterus."

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 Thereafter, Ganame was diagnosed with "[l]ife-threatening pelvic

abscess." She was given "Ampicillin 2g q6hr, Clindamycin 900mg IV q8hr,

Gentamicin 5mg/kg/day . . . Motrin and [P]ercocet."

On October 14, 2016, she underwent an "exploratory laparotomy, excision

and debridement of necrotic portions of hysterotomy incision, reapproximation

of hysterotomy incision, fascial closure." The operative report noted that

"[c]opious foul-smelling pus extruding from [Ganame's] endometrial cavity

after the fascia was opened. Right anterior uterine wall adherent to necrotic

appearing rectus muscle. . . . There was also edematous large bowel that was

adherent to the left adnexa." This meant that Ganame's uterine wall and rectus

muscle had adhered. Another physician directed her post-operative care, while

the physician who conducted the laparotomy "provided intra-operative

consultation for management of this challenging case." Ganame's wound was

left open.

On October 14, 2016, Ganame was switched to "IV Zosyn and Flagyl,"

and the Flagyl was switched to "PO Augmentin" on October 17, 2016. On

October 15, Ganame started "Heparin 5000u q12" for prophylaxis (preventive

treatment). Ganame initially had postoperative tachycardia, but that resolved

during her hospitalization.

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 On October 17, 2016, yet another physician concluded that Ganame

tested positive for E.coli and had an acute kidney injury. A different doctor

noted that Ganame reported increased pain, had no appetite, had lower

abdominal pain every time she ate, and intermittent nausea.

On October 21, the treating physician directed Ganame remain

hospitalized for observation and a possible hysterectomy. As of October 27,

2016, she was to continue on IV antibiotics for at least fourteen days, and

observed on oral antibiotics for at least twenty-four hours. On October 29,

Ganame again reported abdominal pain. It is unclear from the record if a

hysterectomy was actually performed.

On November 1, 2016, Ganame was discharged from the hospital with an

open abdominal wound. She was required to continue Augmentin for twenty-

one days, along with clindamycin. On December 16, 2016, Ganame returned to

the emergency room at the hospital with complications and infections related to

the c-section. To summarize the medical records, in the initial ninety-day

period, in addition to a life-threatening pelvic abscess, Ganame's white blood

cell level intermittently increased beyond the normal range and she was

administered various narcotics and antibiotics.

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 At the time of her initial admission, Ganame was twenty-four years old.

She then became responsible for the care of her newborn.

On July 17, 2017, again Ganame returned to the emergency room for

"complications and infections related to [her] c-section," and was diagnosed

with "[a]cute infection of female upper reproductive tract" and "pelvic

inflammatory disease." Ganame was prescribed Doxycycline capsules,

Metronidazole capsules, and Naproxen tablets.

Ganame's hospital record for the July 17 admission indicates that the

diagnosis was the continuing "acute infection of female upper reproductive

tract." She was released but returned the following day to the emergency room.

Ganame was administered, by injection and orally, the following drugs:

ketorolac, ceftriaxone, Doxycycline Hyclate, and metronidazole. Additionally,

naproxen and ibuprofen were prescribed for pain, and she was prescribed a

hydrocortisone rectal cream.

According to Ganame's certification, it was not until July 2017 that she

came to realize that someone had mishandled her care. When she learned on the

internet that in the United States she could bring a lawsuit against the medical

providers for negligence, she consulted with an attorney and the motion to file

out of time followed.

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 The physician who treated Ganame commencing with her second hospital

visit in October 2016, certified that Ganame was asked to sign a permission that

included notification that University Hospital is associated with the State and

not Rutgers University.

The judge conveyed her analysis of the reconsideration motion, upon

which no oral argument was heard, by way of a written order. Her written

notation only states: "The court does not find that the order of September 25,

2017 was based upon a palpably incorrect or irrational basis, or that the court

did not consider relevant law or evidence by the parties."

I.

We review decisions to grant or deny motions to file N.J.S.A. 59:8-9 late

notices of claim under an abuse of discretion standard. D.D. v. Univ. of Med.

& Dentistry of N.J., 213 N.J. 130, 147 (2013) (citing Lamb v. Global Landfill

Reclaiming, 111 N.J. 134, 146 (1988)). We ordinarily defer to factual findings

of the court, and reverse only if the decision is based on a misconception of the

law. Ibid. In this case, no factual findings were made.

Motions for reconsideration are also reviewed on appeal under an abuse

of discretion standard. Cummings v. Bahr, 295 N.J. Super. 374, 384, 389 (App.

Div. 1996). Reconsideration of an earlier decision should be granted where the

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court either bases its decision on a palpably incorrect or irrational basis, or the

court did not consider or failed to appreciate the significance of probative

competent evidence. Id. at 384 (quoting D’Atria v. D’Atria, 242 N.J. Super.

392, 401 (Ch. Div. 1990)).

It is well-established that the purpose of the Tort Claims Act (TCA) is to

"reestablish the immunity of public entities while coherently ameliorating the

harsh results of the doctrine." Beauchamp v. Amedio, 164 N.J. 111, 115 (2000)

(citing N.J.S.A. 59:1-2). The notice requirements of the TCA "were not

intended as a 'trap for the unwary.'" Lowe v. Zarghami, 158 N.J. 606, 629 (1999)

(citation omitted). We more closely examine those cases in which a filing of a

late notice of claim was denied, "to the end that wherever possible cases may be

heard on their merits, and any doubts which may exist should be resolved in

favor of the application." Feinberg v. State Dep't of Envtl. Prot., 137 N.J. 126,

134 (1994) (quoting S.E.W. Friel Co. v. N.J. Tpk. Auth., 73 N.J. 107, 122

(1977)).

N.J.S.A. 59:8-8 provides that when a claimant fails to file within ninety

days of accrual of a claim he or she "shall be forever barred from recovering

against a public entity or public employee . . . ." But N.J.S.A. 59:8-9 states that

at the discretion of a Superior Court judge, a late notice of claim may be filed

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"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."

No argument is being made in this case that substantial prejudice has

resulted from the late filing of this claim. It is defendant's burden to produce

and demonstrate such substantial prejudice under N.J.S.A. 59:8-9. See Mendez

v. S. Jersey Transp. Auth., 416 N.J. Super. 525, 535 (App Div. 2010). Thus, we

will not consider the prejudice aspect of the language in N.J.S.A. 59:8-9.

The statute does not define extraordinary circumstances. The court's focus

has to be, however, on evidence of Ganame's situation during the ninety-day

time period. See D.D., 213 N.J. at 151, 157.

"[A] judge must consider the collective impact of the circumstances

offered as reasons for the delay" when "determining whether extraordinary

circumstances exist," including "any physical or emotional disability." Mendez,

416 N.J. Super. at 533 (citation omitted) (noting that "extraordinary

circumstances can be found based on the severity of a party's injuries");

Escalante v. Twp. of Cinnaminson, 283 N.J. Super. 244, 252 (App. Div. 1995).

We have said that "[i]gnorance of the 90–day statutory requirement, ignorance

of one's rights or mere ambivalence by the claimant have never been found to

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be sufficient reasons on their own to allow late filing," but we have also noted

that "ignorance of the statutory requirement may be a relevant consideration in

allowing a late claim" under the TCA. Escalante, 283 N.J. Super. at 250

(citations omitted).

In her initial decision, the trial judge concluded that the accrual date in

this case was October 2016, as Ganame was then made aware of the fact that her

incision had become grossly infected and that she was suffering from unusual

significant physical consequences to childbirth. But, the accrual date is actually

the date Ganame should have discovered that she may have a basis for an

actionable claim. See Baird v. Am. Med. Optics, 155 N.J. 54, 68 (1998).

It would not have been unreasonable for Ganame to have assumed her

hospitalization and illness was merely a natural consequence of the birth of her

son, during the ninety-day period. There is no reason to doubt the statement in

her certification that it was not until her July visits over the course of two days

in the emergency room that she would have become aware that she had been

injured by a third party. Beauchamp, 164 N.J. at 121, 123. Even the December

16, 2016 hospitalization post-childbirth may not have been sufficient notice that

the medical issues from which Ganame was suffering were not merely routine

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consequences from the October childbirth, but problems attributable to the

negligence of others.

Even if we were to agree, however, that the date of accrual was either

October or December, the nature of the condition from which Ganame suffered,

when joined with her responsibility in caring for a newborn while a recent

immigrant to this country, does constitute a combination of facts which together

total extraordinary circumstances. During the ninety-day period commencing

October 13, 2016, Ganame's physical condition was such that she was fortunate

to have survived. She nearly lost her life, and would not have prioritized

determining whether she had a cause of action against anyone.

Furthermore, it is not clear from our review of the reconsideration order,

which merely parrots the relevant law, if the judge took into account the medical

records first provided by defendant only after the motion for late filing, and thus

supplied by Ganame to the court only on reconsideration. The judge in her

earlier decision construed the justification for late filing to be Ganame's

ignorance of the TCA's notice requirements. Were that decision—which is not

under consideration here—correct, certainly the reasons given in the

certification and attached medical records submitted in support of the motion

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for reconsideration raised new grounds, separate and apart from Ganame's

ignorance of the law.

Thus, we conclude that the judge misapplied her discretion in failing to

consider and appreciate "the significance of probative, competent evidence"

relating to the "collective impact" of all the circumstances, including her dire

health status, of Ganame's life. See Cummings, 295 N.J. Super. at 384 (quoting

D'Atria, 242 N.J. Super. at 401); Mendez, 416 N.J. Super. at 533. The trial judge

made no mention of the new facts and information she was presented, or of the

impact the medical records had on her legal analysis.

Generally, "medical conditions meet the extraordinary circumstances

standard if they are severe or debilitating." D.D., 213 N.J. at 149-50. ("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."). It is fair to say that Ganame was in an extreme

physical condition during her hospitalizations from October through December

of 2016. Thereafter she continued to suffer from chronic painful and debilitating

abdominal infections in the intervening months. Considering the need to resolve

possible cases on their merits, we reverse. After consideration of the facts, the

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combination of factors in Ganame's life equal extraordinary circumstances. See

Mendez, 416 N.J. Super. at 533.

Reversed.

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