AKINTOLA HANIF MARTIN VS. UNIVERSITY HOSPITAL NEWARK (L-0127-19, 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NOT FOR PUBLICATION WITHOUT THE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-0052-19T1

AKINTOLA HANIF MARTIN,

Plaintiff-Appellant,

v.

UNIVERSITY HOSPITAL
NEWARK, RUTGERS
BIOMEDICAL AND HEALTH
SCIENCES, RYAN MCCABE,
AMBIKA ROY, ANDREA
HIDALGO, ILYA OSTROVSKY,
CHRISTINE GERULA, HARSH
P. SULE, ALFONSO WALLER,
PALLAVI SOLANKI,
GARRASTAZU NEYSA,
JUDITH SABOL, DIANE
TAYLOR, MONINA LOPEZ,
NIZAR SOUAYAH, MITCHEL
QUEANO, KYRA MAFFET,
CHRISTIANE MORTAGUA,
SCOTT ZUCKERMAN, DENISE
ALLISON, HUEY-JEN LEE, and
OBRYANT SEPULVEDA,

Defendants-Respondents,

and
STATE OF NEW JERSEY,
ERIC RUSH, SARAH ARNOLD,
FLORENCE PIERRE, ABDUL
ALCHAKI, BLANDINA
BILLONES, ANUSHA
BOYANPALLY, JACINTA
ENWOROM, MERICA
MCCALLA, OLUWOLE A. TAIRU,
SABA KAHN, NEHA KOTHARI,
DEVASHIN SHAH, TAREK
JAZMATI, and JOHN SABATINO,

Defendants.
________________________________

Argued October 14, 2020 – Decided November 24, 2020

Before Judges Fisher, Gilson, and Gummer.

On appeal from the Superior Court of New Jersey,
Law Division, Essex County, Docket No. L-0127-19.

William Stoltz argued the cause for appellant (Law
Offices Rosemarie Arnold, attorneys; Sheri Breen and
William Stoltz, on the briefs).

William J. Buckley argued the cause for respondents
University Hospital Newark, Ambika Roy, Neysa
Garrastazu, Judith Sabol, Diane Taylor, Monina
Lopez, Mitchel Queano, Kira Maffett, Christiane
Mortagua, Scott Zuckerman, Denise Allison, and
Obryant Sepulveda (Schenck, Price, Smith & King,
LLP, attorneys; William J. Buckley, of counsel and on
the brief).1

1
Plaintiff named Garrastazu Neysa and Kyra Maffett as defendants. Their
actual names are Neysa Garrastazu and Kira Maffett.
A-0052-19T1
2
 Beth A. Hardy argued the cause for respondents
Rutgers Biomedical and Health Sciences, Ilya
Ostrovsky, and Harsh P. Sule (Farkas & Donohue,
LLC, attorneys; David C. Donohue, of counsel; Beth
A. Hardy, on the brief).

Patricia M. Wason argued the cause for respondent
Ryan McCabe (MacNeill, O'Neill & Riveles, LLC,
attorneys; Gary L. Riveles and Patricia M. Wason, of
counsel and on the brief).

John D. North argued the cause for respondent Ryan
McCabe on counts five through seven (Greenbaum,
Rowe, Smith & Davis, LLP, attorneys; John D. North
and Irene Hsieh, of counsel and on the brief).

Janet L. Poletto argued the cause for respondents
Andrea Hidalgo, Christine Gerula, Alfonso Waller,
Pallavi Solanki, and Nizar Souayah (Hardin, Kundla,
McKeon & Poletto, P.A., attorneys; Janet L. Poletto,
of counsel and on the brief; Robert E. Blanton, Jr., on
the brief).

Russell J. Malta argued the cause for respondent
Huey-Jen Lee (Orlovsky, Moody, Schaaff, Conlon &
Gabrysiak, attorneys; Paul F. Schaaff, Jr., of counsel;
Russell J. Malta, on the brief).

PER CURIAM

Complaining about defendants' treatment of him after he had a stroke,

plaintiff Akintola Hanif Martin appeals the trial judge's orders reconsidering

and vacating his prior order granting plaintiff's motion for leave to file a late

tort claims notice and dismissing with prejudice plaintiff's tort causes of action

A-0052-19T1
3
for failure to file timely a tort claim notice as required by the New Jersey Tort

Claims Act, N.J.S.A. 59:1-1 to 14-4 (the TCA). Finding that the trial judge

erred in not applying correctly the required legal analysis, not making all

relevant factual determinations, and not conducting an evidentiary hearing

before dismissing with prejudice plaintiff's tort claims, we reverse and remand.

Because this case comes to us on an appeal of the trial judge's dismissal

with prejudice of plaintiff's tort claims, we assume all facts alleged by plaintiff

to be true and give him the "benefit of all inferences that may be drawn from

those facts." Feinberg v. N.J. Dep't of Envtl. Prot., 137 N.J. 126, 129 (1994).

On January 6, 2017, plaintiff had a stroke in his apartment. When he

regained consciousness, he could not walk or talk, but was able to crawl into

the hallway of his building, where neighbors found him and called 911. When

defendants Ryan McCabe and Eric Rush (the EMT defendants) arrived, they

did not identify themselves as being affiliated with a public entity nor wore

anything that revealed that affiliation. They accused plaintiff of being on

drugs, even though his neighbors told them that he was not on drugs, asked

him to stand, and kicked him when he did not rise. They eventually placed

him on a stretcher, restrained him, and moved him into an ambulance.

Plaintiff did not notice any markings on the ambulance. Without providing

A-0052-19T1
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any stroke-related testing, medication, or treatment, the EMT defendants took

him to defendant University Hospital Newark. 2

At the hospital, the EMT defendants told the doctors, nurses, and other

hospital staff members 3 who were treating plaintiff that plaintiff was on drugs

and had no stroke symptoms. The treating defendants, who did not provide

any indication that they were affiliated with a public entity, treated plaintiff

like a drug-overdose patient. They put him in restraints, gave him

antipsychotic and antianxiety medication, and placed him in a corner of the

emergency room. They did not perform any stroke screening or diagnostic

tests or administer medication to treat a stroke for at least five to six hours. A

CT scan, which was read the following day, revealed that plaintiff had had a

stroke.

Plaintiff remained at the hospital until January 20, 2017, when he was

discharged to the Kessler Institute for Rehabilitation for in-patient treatment.

2
Plaintiff alleges that Rutgers Biomedical and Health Sciences owns and
operates University Hospital Newark and that the State of New Jersey owns
and operates each of those entities.
3
In his complaint plaintiff identified as "treating defendants," among others,
Ambika Roy, Andrea Hidalgo, Ilya Ostrovsky, Christine Gerula, Harsh P.
Sule, Alfonso Waller, Abdul Alchaki, Pallavi Solanki, Neysa Garrastazu,
Judith Sabol, Diane Taylor, Monina Lopez, Nizar Souayah, Mitchel Queano,
Kira Maffett, Christiane Mortagua, Scott Zuckerman, Denise Allison, Huey-
Jen Lee, and Obryant Sepulveda.
A-0052-19T1
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He stayed at Kessler until February 21, 2017, when he was transferred to

another facility. He remained at that facility for approximately three weeks.

He later received treatment from a neurologist.

According to plaintiff, the unnecessary delay in the treatment of his

stroke caused him to suffer catastrophic injuries, including severe brain

damage, total paralysis of his right arm, weakness in his right leg that requires

him to use a cane, a facial droop on his right side, uncontrollable drooling, and

severe aphasia. For three months after his stroke, plaintiff could not speak and

had great difficulty moving. He was not able to conduct a coherent

conversation until sometime in November 2018.

On November 12, 2018, plaintiff spoke about "his situation" with a

friend, who advised him to consult with a lawyer because the people who had

treated him might have done something wrong. Plaintiff does not recall that

anyone previously advised him that the delay in his treatment could have

caused his injuries. After his conversation with his friend, plaintiff obtained a

copy of his hospital records and began to look for an attorney.

A-0052-19T1
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 On January 3, 2019, plaintiff submitted to the hospital, the State, Rutgers

New Jersey Medical School, and Rutgers University 4 a notice of claim

pursuant to N.J.S.A. 59:8-1. He based the claim on his allegations concerning

defendants' failure to diagnose or treat timely his stroke, the assault by the

EMT defendants, and the negligent hiring or supervision of employees. He

asserted in his claim that he did not discover until November 12, 2018, that th e

delay in his diagnosis or treatment had caused his injuries.

On January 4, 2019, plaintiff filed a complaint. He claimed that

defendants had breached their duty of care to him by failing to provide to him

appropriate treatment in a timely manner and were strictly or absolutely liable

for his injuries. He contended that defendant corporate entities were

vicariously liable for the individual defendants and directly liable for

negligently hiring, retaining, or training them. He asserted that, by kicking

him, the EMT defendants had "inflicted the torts of assault and battery." He

4
Rutgers Biomedical and Health Sciences indicated in an answer that plaintiff
had improperly named as defendants Rutgers New Jersey Medical School and
Rutgers University. Plaintiff subsequently amended his complaint to name
Rutgers Biomedical and Health Sciences in lieu of those entities.
A-0052-19T1
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accused the EMT defendants and the treating defendants of violating his civil

rights, citing N.J.S.A. 10:6-2.5

On the same date plaintiff also filed a motion to file a late notice of

claim pursuant to N.J.S.A. 59:8-9. Plaintiff argued that his notice of claim was

timely because the discovery rule tolled the accrual of his claims until

November 12, 2018, when his friend suggested he contact a lawyer.

Alternatively, plaintiff contended that he should be permitted to file a late

notice of claim because he had demonstrated extraordinary circumstances. In

support of that motion, plaintiff submitted his affidavit, in which he attested to

the factual allegations contained in his complaint.

In his oral opinion, the trial judge stated his concern that plaintiff had

not submitted a statement of a physician indicating that "there was severe

cognitive impairment . . . . If we have that I think we have extraordinary

circumstances." The trial judge stated his belief that he would not have to

reach "the tolling issue" if he found extraordinary circumstances: "instead of

going down that road with the so called unknown friend and having discovery

on any contacts he had with the friend, . . . at the end of the day at the bottom

line of this it's his cognitive abilities during this time period." The trial judge

5
That cause of action, contained in the fifth count, was not dismissed and is
not at issue in this appeal.
A-0052-19T1
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acknowledged that if plaintiff did not establish extraordinary circumstances,

"we could further explore the tolling issue" and indicated that he was "not

satisfied on this record there's enough here to toll, because I would need more

information on the contact with the friend." He also found that "there are a ton

of fact questions" and that defendants would not be prejudiced by allowing the

late submission.

The trial judge initially held that he would "technically" deny the motion

without prejudice "subject to the plaintiff submitting that [physician]

certification." Plaintiff's counsel asked the trial judge to grant plaintiff's

motion "subject to receiving" plaintiff's supplemental submission. Stating that

"[w]e can do it either way," the trial judge agreed to plaintiff's counsel's

request to grant the motion subject to receiving the supplemental submission.

In an order dated March 15, 2019, the trial judge deemed plaintiff's notice of

claim timely for purposes of N.J.S.A. 59:8-8 "PROVIDED, HOWEVER

THAT" plaintiff serve the noticed parties "with a medical expert report

certifying [plaintiff's] medical conditions from January 6, 2017 until

November 12, 2018 . . . ."

Plaintiff responded to that directive by submitting a certification of

neurologist Arthur Rothman. In his certification Dr. Rothman confirmed that

A-0052-19T1
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plaintiff had total paralysis of his right arm, weakness in his right leg requiring

use of a cane, a facial droop on the right side of his face, memory loss, and

Broca's aphasia, which caused him to speak "haltingly, with great effort and

with paraphasic errors." He reported that plaintiff had told him that for the

first month after his stroke, he was not able to speak or write and that he was

not able to speak "in complete, but halting sentences until approximately

November 2018." He also stated that plaintiff had told him that his treating

physicians had not advised him that the delay in his diagnosis or treatment

may have caused the severity of his injuries.

Reviewing plaintiff's treatment records, Dr. Rothman discerned that

when plaintiff was admitted to Kessler on January 20, 2017, he was completely

unable to communicate or understand anyone. After receiving extensive in-

patient physical, occupational, and speech therapy, he was discharged on

February 21, 2017, but continued to suffer from "severe aphasic difficulties,

along with other serious physical impediments" and needed additional speech

therapy "to full[y] recover his ability to initiate speech spontaneously and to

communicate at the sentence level." Dr. Rothman determined that when

plaintiff began to be treated by Dr. Venkatraman on April 11, 2018, plaintiff

still had memory loss and "aphasia related speech issues." Dr. Rothman found

A-0052-19T1
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no indication that any treating physician had advised plaintiff that his injuries

were caused potentially by the delay in diagnosis and treatment of his stroke.

Dr. Rothman opined that plaintiff "continues to suffer from brain

damage, severe aphasia, as well as a laundry list of other debilitating injuries

as set forth above, which made getting around and talking about a potential

malpractice claim all but impossible." He concluded that: (i) there was "no

way that a lay person [like plaintiff] would have known that his condition was

caused by the delay in diagnosis and/or treatment of his stroke . . . rather than

being a natural consequence of . . . a stroke"; (ii) plaintiff would not have

known about a potential claim against defendants "until someone with

sufficient expertise in the fields of neurology and treatment of strokes advised

him of such"; and (iii) because of his injuries, plaintiff "was not able to fully

understand or communicate the circumstances of his injury until November

2018." He based the last conclusion in part on his belief that a stroke patient

with severe aphasia "optimally recover[s] a certain level of ability to

communicate within a 1- to 2-year period . . . . This is why [plaintiff] was not

able to understand the causes and nature of his disabilities and their

relationship to his treatment . . . until November 2018, almost 2 years after his

stroke."

A-0052-19T1
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 The EMT defendants, hospital, and some of the treating defendants

submitted a written request to the trial judge, asking for limited discovery

regarding the timeliness of plaintiff's notice of claim. They asserted that some

of them had not been served with plaintiff's motion to file a late notice of

claim and, thus, had been deprived of an opportunity to oppose it. They also

contended that Dr. Rothman's certification was deficient, covering only six

months of the twenty-two-month period set forth in the order, and failed to

establish extraordinary circumstances justifying plaintiff's late filing of his

notice of claim. In response, the trial judge directed defendants to file a

motion.

Defendant McCabe moved for reconsideration of the March 15, 2019

order and dismissal of the tort claims against him. The other defendants

followed suit, moving or cross-moving for reconsideration or for dismissal

with prejudice of plaintiff's tort claims for failure to file timely a notice of

claim. Defendants argued, among other things, that Dr. Rothman's

certification failed to establish extraordinary circumstances that would justify

A-0052-19T1
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the late submission of a notice of claim and that plaintiff's Facebook posts

undermined plaintiff's assertion that he was cognitively impaired. 6

Rejecting plaintiff's argument that defendants' motions were untimely,

the trial judge considered defendants' motions and held that the accrual date of

plaintiff's claim was January 6, 2017, the date plaintiff had the stroke. He

based that conclusion on his factual findings that on that date, plaintif f knew:

he had had a stroke; the EMT defendants had accused him of being on drugs

and had kicked him; the "EMT defendants and the hospital delayed his

treatment" and did not conduct appropriate screening or give him correct

medication; and the treating physicians placed him in restraints like a drug-

overdose patient and ignored him for six to seven hours. He declined to apply

the discovery rule to toll the accrual date until November 12, 2018, the date of

plaintiff's conversation with his friend, because "there's a failure to explain

how that conversation revealed any new facts that he previously did not

possess." The trial judge viewed the "outcome" of that conversation as

"simply a friend advising him to go see a lawyer." The trial judge concluded

that based on plaintiff's "social media posts . . . there is cognitive ability to

understand what his condition is . . . at the latest in the spring or summer [of

6
Defendants referenced Facebook posts from March and June 2017 and
October 2018.
A-0052-19T1
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2017]. And I think it's just too late." The trial judge also found based on the

social media posts that plaintiff had "knowledge that this was Rutgers." The

trial judge acknowledged Dr. Rothman's conclusions, but nevertheless

determined that "I just don't think that's enough to establish this evidence of

cognitive inability to understand." The trial judge granted defendants'

motions, vacated the March 15, 2019 order, and dismissed with prejudice

plaintiff's tort claims for failure to file timely a notice of claim.

Plaintiff appeals, arguing that the trial judge erred in: (i) considering

defendants' untimely motions; (ii) not tolling the accrual date until November

2018; and (iii) failing to find that extraordinary circumstances justified

allowing plaintiff to file a late notice of claim.

As a threshold matter, we find unpersuasive plaintiff's argument that

defendants' motions were untimely under Rule 4:49-2. The trial judge initially

was inclined to deny plaintiff's motion without prejudice, but at plaintiff's

request granted it provisionally, as set forth in bold capital letters in the order.

The unambiguous wording of the order establishes that the judge did not

intend it to be a final order on the timeliness of plaintiff's notice of claim, but

instead gave plaintiff an opportunity to supplement his submissions on that

A-0052-19T1
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issue with a medical expert report. Thus, the time limitation of Rule 4:49-2

does not apply.

We review decisions to grant or deny motions to file late notices of

claim pursuant to N.J.S.A. 59:8-9 under an abuse-of-discretion standard. D.D.

v. Univ. of Med. & Dentistry of N.J., 213 N.J. 130, 147 (2013); see also

O'Donnell v. N.J. Tpk. Auth., 236 N.J. 335, 344 (2019) (noting N.J.S.A. 59:8-

9 leaves the determination of whether a late notice may be filed to "the

discretion of a judge of the Superior Court"). An abuse of discretion occurs

when a trial judge's decision "was not premised upon consideration of all

relevant facts, was based upon consideration of irrelevant or inappropriate

factors, or amounts to a clear error in judgment." Masone v. Levine, 382 N.J.

Super. 181, 193 (App. Div. 2005); see also State v. S.N., 231 N.J. 497, 515

(2018). A trial judge's interpretation and application of the TCA to undisputed

facts is a legal determination that we review de novo. See Jones v. Morey's

Pier, Inc., 230 N.J. 142, 153 (2017). 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.'" S.E.W. Friel Co. v. N.J. Tpk.

A-0052-19T1
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Auth., 73 N.J. 107, 122 (1977) (quoting Viles v. State, 423 P.2d 818, 821 (Cal.

1967)); see also Feinberg, 137 N.J. at 134.

The TCA governs when public entities are liable for their torts. Nieves

v. Adolf, 241 N.J. 567, 571 (2020). To proceed with a tort claim against a

public entity, a plaintiff must file with the public entity a notice of claim

within ninety days of the action's accrual. O'Donnell, 236 N.J. at 345; see also

N.J.S.A. 59:8-8. A court may grant a plaintiff who has not met that deadline

leave to file a late notice of claim within one year of the accrual of the claim,

provided the plaintiff demonstrates extraordinary circumstances that prevented

a timely filing and the public entity has not been substantially prejudiced by

the delay. 7 Id. at 346; see also N.J.S.A. 59:8-9. The failure to file "within

ninety days under normal circumstances or within one year under

extraordinary circumstances," bars a plaintiff from bringing a tort claim

against a public entity. Ben Elazar v. Macrietta Cleaners, Inc., 230 N.J. 123,

133 (2007); see also N.J.S.A. 59:8-8(a). These TCA notice requirements

"were not intended as a 'trap for the unwary.'" Lowe v. Zarghami, 158 N.J.

7
A defendant must produce and demonstrate 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). Because defendants do not argue that they were
substantially prejudiced by any delay in the filing of plaintiff's claim and did
not appeal the trial judge's finding of no prejudice, we do not consider the
prejudice element of N.J.S.A. 59:8-9.
A-0052-19T1
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606, 629 (1999) (quoting Murray v. Brown, 259 N.J. Super. 360, 365 (Law

Div. 1991)).

Our Supreme Court requires trial judges determining the timeliness of a

notice of claim under N.J.S.A. 59:8-8 to perform a "sequential analysis."

Bayer v. Twp. of Union, 414 N.J. Super. 238, 258 (App. Div. 2010); see also

Beauchamp v. Amedio, 164 N.J. 111, 118 (2000). The trial judge first must

determine when the claim accrued. Bayer, 414 N.J. Super. at 258. The trial

judge next must determine if the notice of claim was filed within ninety days

of the accrual date, and, if not, whether extraordinary circumstances justify the

late notice. Id. at 258.

Defendants contend that plaintiff's claims accrued on the day he had the

stroke, January 6, 2017, while plaintiff argues the discovery rule tolled the

accrual of his claims until November 2018 conversation with his friend. In

determining when a cause of action accrues for purposes of the TCA notice

requirement, "common law principles governing accrual of a tort claim apply."

Ben Elazar, 230 N.J. at 127. Generally, the date of accrual for a tortious act is

the date on which the tortious act occurred. Bayer, 414 N.J. Super. at 258.

The discovery rule tolls the accrual date when "the victim either is unaware

that he has been injured or, although aware of an injury, does not know that a

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third party is responsible." Id.; see also Ben Elazar, 230 N.J. at 127 (finding

that "[u]nder traditional equitable principles of our discovery rule, the date of

the accrual of a claim . . . may be tolled when plaintiffs lack knowledge of

fault of a third party").

Those accrual concepts apply in medical-malpractice cases, which

"generally accrue[s] on the date that the alleged act or omission occurred."

Baird v. Am. Med. Optics, 155 N.J. 54, 65 (1998). The discovery rule tolls an

accrual date in medical-malpractice cases "when injured parties reasonably are

unaware that they have been injured, or, although aware of an injury, do not

know that the injury is attributable to the fault of another." Id. at 66. "Critical

. . . is the injured party's awareness of the injury and the fault of another."

Ibid; see also Caravaggio v. D'Agostini, 166 N.J. 237, 246 (2001) (focusing on

"whether the facts presented would alert a reasonable person, exercising

ordinary diligence, that he or she was injured due to the fault of another").

Generally, discovery-rule issues "will not be resolved on affidavits or

depositions since demeanor may be an important factor where credibility is

significant." Lopez v. Swyer, 62 N.J. 267, 275 (1973). If credibility is

involved, a trial court should conduct an evidentiary hearing outside the

presence of the jury. Ibid.; see also The Palisades at Fort Lee Condo. Ass'n,

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Inc. v. 100 Old Palisade, LLC, 230 N.J. 427, 452 (2017) (remanding case to

trial court to conduct a Lopez hearing to examine evidence presented and "in

its discretion, take testimony from relevant witnesses").

Once the accrual date has been determined and it has been found the

plaintiff did not file the notice of claim within ninety days of the accrual date,

the judge must then decide whether extraordinary circumstances justified the

delay. Bayer, 414 N.J. Super. at 258. In determining whether extraordinary

circumstances justify a delay in filing the notice of claim, a trial judge must

focus on evidence of a plaintiff's situation during the ninety-day time period

following the accrual date. See D.D., 213 N.J. at 151. Thus, it is critical for

the judge to determine first the accrual date in order to assess the correct

ninety-day time period. A judge then "must consider the collective impact of

the circumstances offered as reasons for the delay." R.L. v. State-Operated

Sch. Dist., 387 N.J. Super. 331, 341 (App. Div. 2006); see also Mendez, 416

N.J. Super. at 533.

Medical conditions meet the extraordinary-circumstances standard if

they are "severe or debilitating" and have a "consequential impact on the

claimant's very ability to pursue redress and attend to the filing of a claim."

D.D., 213 N.J. at 149-50; see also Mendez, 416 N.J. Super. at 533 (noting that

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"extraordinary circumstances can be found based on the severity of a party's

injuries"). The question for the trial court is whether, when viewed

objectively, a severe or debilitating injury impaired the plaintiff's ability to act

during the relevant ninety-day time period. Id. at 151. Credibility issues

warrant a hearing so that the trial judge can make findings of fact. Where

there is a material factual dispute as to whether a medical condition was severe

enough to impact significantly a plaintiff's ability to pursue legal action during

the ninety-day period following the accrual date, the trial judge should conduct

an evidentiary hearing.

As Justice Long explained twenty years ago in Beauchamp,

Although occasionally the facts of a case may cut
across those [accrual date and extraordinary
circumstances] issues, they are entirely distinct. It is a
common and regrettable occurrence for accrual and
extraordinary circumstances to be treated as
interchangeable and for courts and litigants to
overlook the primary question of accrual and directly
confront the ultimate question of extraordinary
circumstances. What is important is to understand the
framework of a Tort Claims notice analysis and to
follow it.

[164 N.J. at 119.]

Unfortunately, the trial judge failed to follow that framework.

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 The first question that had to be answered by the trial judge was when

plaintiff's claims accrued. For the medical-malpractice claims, the decisive

determination on that question is when plaintiff discovered or by the exercise

of reasonable diligence should have discovered that his injuries were causally

related to defendants' delay in diagnosing and treating his stroke. The trial

judge never made that determination.

In his March 15, 2019 decision granting plaintiff's motion, the t rial judge

chose not to follow the required "sequential analysis." Instead, he leapfrogged

over the first step, declining to determine the accrual date, and focused on

extraordinary circumstances. He indicated that if plaintiff established

exceptional circumstances with a supplemental medical-expert submission, he

would not have to reach the issue of whether the discovery rule tolled the

accrual date. Acknowledging the existence of a "ton of fact questions," he

stated that if plaintiff failed to establish exceptional circumstances, he would

"further explore the tolling issue" and "would need more information on the

contact with the friend."

In his subsequent decision granting defendants' motions, the trial judge,

with no additional information regarding plaintiff's conversation with his

friend and no further exploration of the tolling issue, concluded that the

A-0052-19T1
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accrual date was the day plaintiff had the stroke. He based that conclusion on

his finding that plaintiff on the day of his stroke knew that he had had a stroke

and that the "EMT defendants and the hospital [had] delayed his treatment."

The trial judge failed to make the critical determination as to whether and

when plaintiff knew that defendants' delay had caused his injuries. The only

evidence before the trial judge on that issue was plaintiff's affidavit and Dr.

Rothman's certification. In his affidavit, plaintiff stated that he did not

remember being told by anyone that the delay in treatment could have caused

the extent of his injuries "until I was advised as such by my friend on

November 12, 2018." In his certification, Dr. Rothman determined that no one

had told plaintiff that the delay in treatment could have caused his injuries and

opined that plaintiff would not have known that his condition was caused by

defendants' delay in diagnosing or treating his stroke "rather than being a

natural consequence of suffering a stroke" unless someone "with sufficient

expertise in the fields of neurology and treatment of strokes" had told him.

Without conducting a hearing that would have enabled him to assess

plaintiff's and Dr. Rothman's credibility, the trial judge apparently gave little

or no weight to their sworn statements and instead focused on plaintiff's social

media posts and what those posts indicated about plaintiff's cognitive capacity.

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Whatever those posts may have indicated regarding plaintiff's cognitive

capacity, which was the focus of the trial judge's premature extraordinary-

circumstances analysis, they shed no light on whether he knew or should have

known that his condition was caused by defendants' delay in diagnosing and

treating his stroke.

This is not a case in which the fault of a third party is apparent. See

Caravaggio, 166 N.J. at 246 (giving as an example wrong tooth being

extracted). Plaintiff may have had, as the trial judge found, the "cognitive

ability to understand what his condition is" in the spring or summer of 2017.

But that basic understanding of his condition does not mean that plaintiff had

the ability or "'reasonable medical information'" to link his condition to the

actions or inactions of defendants. Kendall v. Hoffman-La Roche, Inc., 209

N.J. 173, 193 (2012) (quoting Vispisiano v. Ashland Chem. Co., 107 N.J. 416,

435 (2012)). Plaintiff reasonably could have understood that his condition was

caused entirely by the stroke and may not have known or had reason to know

that defendants' delay in diagnosing and treating the stroke caused or

contributed to his condition.

Decisions regarding the accrual date and the existence of extraordinary

circumstances required the resolution of a number of factual disputes between

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the parties concerning plaintiff's medical condition, cognitive status, ability to

pursue his claims, and knowledge he had or should have had about his

condition, his claims, and defendants' public status. The resolution of those

disputes called for credibility determinations that could not be made without a

hearing. Instead of conducting a hearing, the trial judge decided on the papers

that plaintiff's social media posts sufficiently discredited his and Dr.

Rothman's sworn statements regarding his cognitive capacity and dismissed

with prejudice plaintiff's tort claims. That was error.

In his findings, the trial judge did not differentiate between plaintiff's

malpractice claims and his assault-and-battery claims against the EMT

defendants. Plaintiff does not appear to argue that the discovery rule applies to

the determination of the accrual date on the assault-and-battery claims.

Plaintiff knew that the EMT defendants had kicked him on January 6, 2017.

Neither plaintiff nor Dr. Rothman assert that plaintiff was unaware of the

injuries caused by the alleged assault. Even if January 6, 2017, is the correct

accrual date for the assault-and-battery claims, the judge's error in not

conducting a hearing to resolve the factual disputes regarding the existence of

extraordinary circumstances applies equally to plaintiff's assault-and-battery

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claims. Accordingly, we also reverse the trial judge's order dismissing those

claims.

Reversed and remanded for an evidentiary hearing and new

determination by the court. We do not retain jurisdiction.

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