CHARLES TALIAN VS. DR. GREGORY PECK (L-6376-19, 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NOT FOR PUBLICATION WITHOUT THE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
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-2357-19

CHARLES TALIAN, an
individual,

Plaintiff-Respondent,

v.

DR. GREGORY PECK, a
physician, and RUTGERS, THE
STATE UNIVERSITY –
RUTGERS BIOMEDICAL AND
HEALTH SCIENCES, 1

Defendants-Appellants,

and

DR. JESSICA CRYSTAL, a
physician, DR. SARA KAHLIL, a
physician, DR. JOSHUA CHIA-
SHIH CHAO, a physician, DR.
NANCY PHAN, a physician, DR.
JUDITH AMOROSA, a physician,
DR. CAROL SAROKHAN, a
physician, DR. SARA

1
Rutgers, the State University of New Jersey – Rutgers Biomedical and Health
Sciences was incorrectly pleaded as Robert Wood Johnson Medical School,
Rutgers Medical School, and Rutgers University Hospital.
PETTYJOHN, a physician, DR.
DEVANG VASANI, a physician,
DR. SHERAZ SIDDIQUI, a
physician, DR. DAVID WALOR, a
physician, MELISSA ASSAEL-
DIAZ, a dietician, MOLISHA
PATEL, PA, ROBERT WOOD
JOHNSON UNIVERSITY
HOSPITAL, a business entity,
CARE ONE AT EAST
BRUNSWICK, a business entity,
CLAREMONT REHABILITATION
FACILITY AT POINT
PLEASANT, t/a CRESTWOOD
REHABILITATION CENTER AT
POINT PLEASANT, a business
entity, and UNIVERSITY
RADIOLOGY GROUP, a business
entity,

Defendants,

and

DR. ROBERT SEGAL, a physician,
ID CARE,2 and DR. ROHIT
BHALLA, a physician,

Defendants-Respondents.
______________________________

Submitted October 21, 2020 – Decided March 15, 2021

Before Judges Alvarez and Mitterhoff.

2
ID Care was incorrectly pleaded as ID Associates, P.A.
A-2357-19
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 On appeal from the Superior Court of New Jersey, Law
Division, Middlesex County, Docket No. L-6376-19.

Farkas & Donohue, LLC, attorneys for appellants
(David C. Donohue, of counsel; Eileen M. Kavanagh,
on the briefs).

Lombardi & Lombardi, P.A., attorney for respondent
Charles Talian (Paul R. Garelick, on the brief).

Giblin Combs Schwartz Cunningham & Scarpa
attorneys for respondent Rohit Bhalla (Christina M.
Scarpa, on the brief).

Rosenberg Jacobs Heller & Fleming, PC, attorneys for
respondents Robert Segal and ID Care, join in the brief
of respondent Rohit Bhalla.

PER CURIAM

In this medical malpractice action, defendants Dr. Gregory Peck, and

Rutgers, the State University of New Jersey – Rutgers Biomedical and Health

Sciences (Rutgers), appeal from a January 10, 2020 order denying their motion

to dismiss plaintiff Charles Talian's complaint for failure to file a timely notice

under the New Jersey Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 12-3.

Plaintiff's claims arise from treatment he received from Dr. Peck at Robert Wood

Johnson University Hospital (RWJUH) during September 2017. Plaintiff sent

his notice of claim to relevant defendants in September 2019, because he did not

learn that Dr. Peck may have been at fault until three months prior (July 2019),

A-2357-19
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when plaintiff's friend, a medical professional, expressed concern about the

September 2017 treatment. In denying the motion to dismiss, Judge James F.

Hyland applied the discovery rule and found that a reasonable person in

plaintiff's position would not have recognized that Dr. Peck may have been at

fault for his injuries. We affirm.

We discern the following facts from the record. On September 11, 2017,

plaintiff was admitted to RWJUH and diagnosed with acute right leg cellulitis.

Dr. Peck performed drainage procedures and debridement to treat the condition.

During plaintiff's hospitalization, on or around September 15, 2017, plaintiff

was also diagnosed with colonic obstruction. As a result, Dr. Peck and his

surgical team performed an exploratory laparotomy, lysis of adhesions, and

subtotal colectomy and creation of end ileostomy. Plaintiff was discharged from

RWJUH on September 21, 2017 and was readmitted on or around September 25,

2017. He was again discharged from RWJUH on October 14, 2017.

Immediately thereafter, plaintiff received almost continuous treatment

from various wound care centers and rehabilitation facilities for about two years.

He is still receiving treatment for his injuries. 3

3
The names of these facilities and the dates on which he treated at each facility
are not relevant to this appeal.
A-2357-19
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 Meanwhile, on July 22, 2019, plaintiff had lunch with his brother and a

friend, Dr. Roy Michael Stefanik. During the lunch, plaintiff told Dr. Stefanik

about the abdominal problems he developed during his stay at RWJUH in

September 2017, and "Dr. Stefanik seemed concerned by what [plaintiff] had

explained to him regarding [his] abdominal condition and [his] ultimately

undergoing a colostomy." Plaintiff became concerned and asked Dr. Stefanik

to write him a letter expressing his own concerns about plaintiff's treatment.

In a letter dated September 2, 2019, Dr. Stefanik detailed the extent of his

discussion with plaintiff about plaintiff's abdominal problems. He wrote that

when plaintiff told him about the surgery to treat an abdominal complication,

such as a bowel infarction or obstruction, that developed after leg debridement,

he told plaintiff he "thought it was strange that no radiologic studies were done

in an effort to diagnose the abdominal problem medically before the surgery."

Further, he "informed [plaintiff about] a phone app called UpToDate that

provides detailed medical information for clinical diagnosis and treatment of

various conditions." Upon searching UpToDate for post-surgical complications

following a leg debridement, Dr. Stefanik found that the application identifie d

the standard diagnostic approach as placing a nasogastric tube and conducting a

CT scan of the abdomen without contrast before performing abdominal surgery.

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 Plaintiff certified that before speaking with Dr. Stefanik in July 2019, he

never had reason to suspect Dr. Peck had injured him, and no medical

professional had ever indicated that his conditions were caused by another

person. After reading Dr. Stefanik's letter, he believed for the first time that he

was the victim of medical malpractice. Consequently, on September 5, 2019,

he retained counsel which led to the filing of the TCA notice of claim and

commencement of this malpractice action.

In denying Dr. Peck and Rutgers' motion to dismiss, Judge Hyland found

persuasive plaintiff's assertion that "[a] reasonable person in his position

exercising ordinary diligence would not have recognized that his injuries were

[caused by] . . . another until he met with Dr. . . . Stefani[k,]" given that plaintiff

was receiving treatment for two consecutive years after the alleged malpractice.

At the earliest, plaintiff had notice of a possible cause of action when he met

with Dr. Stefanik on July 22, 2019. Therefore, plaintiff's notice of claim, which

was received on September 11, 2019, was timely.

On appeal, defendants present the following arguments for our review: 4

POINT I

4
Plaintiff contends in his brief that the appeal should be dismissed as
interlocutory; however, no cross-appeal was filed raising that issue and we will
not address it. See Crystal Ice-Bridgeton, LLC v. City of Bridgeton, 428 N.J.
Super. 576, 579 (App. Div. 2012).
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 THE TRIAL COURT ABUSED ITS DISCRETION BY
IMPROPERLY ALLOWING PLAINTIFF TO
INVOKE THE DISCOVERY RULE AS A
SUBSTITUTE FOR COMPLIANCE WITH THE
PROCEDURAL AND SUBSTANTIVE
REQUIREMENTS SET FORTH IN [N.J.S.A.] 59:8-9
(Raised Below)

A. The Discovery Rule was not Available to Toll
Plaintiff's Claims in the Absence of a Motion for
Leave to File Late Notice of Claim.
B. The Trial Court Erroneously Found the
Discovery Rule Tolled Plaintiff's Claim in the
Absence of No Investigations.

POINT II

THE TRIAL COURT ERRED IN FINDING THE
DISCOVERY
RULE TOLLED THE DATE OF ACCRUAL UNTIL
JULY 2019 WHEN PLAINTIFF SPOKE TO HIS
PHYSICIAN FRIEND.
(Raised Below)

POINT III

THE TRIAL COURT ERRED IN FAILING TO FIND
[N.J.S.A.] 59:8-9 BARRED PLAINTIFF'S CLAIM
(Raised Below).

The issue of the accrual date of a TCA claim is a matter of law to be

determined by the courts. See Beauchamp v. Amadio, 164 N.J. 111, 117-19

(2000) (explaining the "sequential analysis" courts must undertake in analyzing

TCA notice issues). Accordingly, Judge Hyland's decision is subject to de novo

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review. See Manalapan Realty, LP v. Twp. Comm. of Manalapan, 140 N.J. 366,

378 (1995) ("A trial court's interpretation of the law and the legal consequences

that flow from established facts are not entitled to any special deference.").

"The [TCA] establishes that public entities are generally immune from

tort liability, except in certain limited circumstances." Ben Elazar v. Macrietta

Cleaners, Inc., 230 N.J. 123, 133 (2017) (citation omitted). When a claimant is

permitted to file a tort claim against a public entity, he or she must first file a

notice of claim with the public entity within ninety days of accrual of the cause

of action. N.J.S.A 59:8-8. The claimant must then wait a minimum of six

months before commencing an action in the appropriate court but must do so

before two years have passed since the accrual of the claim. Ibid.

To determine whether a claimant filed a timely notice of claim, courts

undertake a sequential analysis:

The first task is always to determine when the claim
accrued. The discovery rule is part and parcel of such
an inquiry because it can toll the date of accrual. Once
the date of accrual is ascertained, the next task is to
determine whether a notice of claim was filed within
ninety days. If not, the third task is to decide whether
extraordinary circumstances exist justifying a late
notice.

[Beauchamp, 164 N.J. at 118-19 (emphasis added).]

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The TCA does not define the time at which a cause of action accrues, but

"[g]enerally, in the case of tortious conduct resulting in injury, the date of

accrual will be the date of the incident on which the negligent act o r omission

took place." Id. at 117 (citing Fuller v. Rutgers, State Univ., 154 N.J. Super.

420, 423 (App. Div. 1977); Torres v. Jersey City Med. Ctr., 140 N.J. Super. 323,

326 (Law Div. 1976)). An exception to this standard is the discovery rule, which

applies "where the victim either is unaware that he [or she] has been injured or,

although aware of an injury, does not know that a third party is responsible ."

Beauchamp, 164 N.J. at 117. When applying the discovery rule, the proper

inquiry is "whether the facts presented would alert a reasonable person,

exercising ordinary diligence, that he or she was injured due to the fault of

another." McDade v. Siazon, 208 N.J. 463, 475 (2011) (quoting Caravaggio v.

D'Agostini, 166 N.J. 237, 240 (2001)).

In this case, Judge Hyland found that plaintiff first discovered that Dr.

Peck might be at fault for his injuries on July 22, 2019, when he discussed his

medical problems with Dr. Stefanik. The record supports this finding and we

discern no basis to disturb it. Plaintiff received continuous treatment for almost

two years between his September 2017 hospitalization and his lunch with Dr.

Stefanik. No doctor or health care professional treating plaintiff during the

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preceding two years alerted him to the possibility that Dr. Peck was at fault for

his continued complications, and there are no other facts in the record suggesting

plaintiff should have suspected Dr. Peck was at fault, as to give rise to any duty

to investigate. See ibid.

In that regard, there are no facts indicating that plaintiff should have

questioned Dr. Peck's diagnosis and treatment. The mere fact that plaintiff was

admitted to RWJUH for one condition and subsequently underwent treatment

for an additional condition would not necessarily cause a reasonable person to

suspect that his or her physician committed malpractice. A patient could be

treated for a second condition and still receive appropriate treatment and care.

Dr. Peck and Rutgers' position presumes that all patients must second guess

medical treatment, even if no facts suggest that malpractice occurred.

Contrary to Dr. Peck and Rutgers' contention, the fact that plaintiff's claim

is based on facts of which he was aware in September 2017 is inconsequential.

See Ben Elazar, 230 N.J. at 134 ("By operation of the discovery rule, the 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." (emphasis added) (citing McDade, 208 N.J. at 475)).

Plaintiff certified that from the time he was initially hospitalized at RWJUH

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through the present, he has been "fighting for [his] life." He was only able to

realize the possibility of malpractice during the short time he was not receiving

treatment and was able to meet a friend for lunch.

We reject defendants' claim that the judge "confused" the law governing

the discovery rule with the law governing filing a late notice of claim. That is

so because the former dictates the date of a claim's accrual, whereas the latter

deals with claims that have indisputably accrued, but a litigant asserts some

reason to excuse an untimely filing. See Beauchamp, 164 N.J. at 118-19.

Dr. Peck and Rutgers' attempt to compare the present circumstances to

those in McDade is unpersuasive. In McDade, the plaintiff was injured by a

pipe on a public sidewalk but did not serve a notice of claim on the correct

defendant until seven months later, after the entities upon which he had served

his initial notice of claim identified the correct defendant. 208 N.J. at 469-70.

The Court explained that the discovery rule did not toll the accrual of the

plaintiff's claims because at the time he was injured, he knew that the owner of

the pipe might be at fault for his injury. Id. at 478. In the present matter, there

is no indication that plaintiff knew his injuries were caused by Dr. Peck or any

other medical provider; rather, it is likely that he thought the complications he

suffered were the result of his own health issues.

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 Finally, we reject defendants' contention that the judge erred in denying

defendant's motion to dismiss without requiring plaintiff to file a motion to file

a late notice of claim. In this case, the judge affixed the accrual date as July 22,

2019. Therefore, plaintiff's September 11, 2019 notice of claim was timely filed,

obviating the need to file a motion.

Although plaintiff's notice of claim was timely, he did not comply with

the TCA's six-month waiting period before filing his complaint in the Law

Division. The 1972 Task Force comment to N.J.S.A. 59:8-3 explains,

The purpose of the claims notification requirement in
this Chapter is two-fold: (a) to allow the public entity
at least six months for administrative review with the
opportunity to settle meritorious claims prior to the
bringing of suit; (b) to provide the public entity with
prompt notification of a claim in order to adequately
investigate the facts and prepare a defense.

[Margolis & Novack, Claims Against Public Entities,
1972 Task Force cmt. to N.J.S.A. 59:8-3 (2020).]

However, N.J.S.A. 59:8-8 does not forever bar a plaintiff from recovering if he

or she does not comply with the six-month waiting period, as it does if the

plaintiff does not comply with the ninety-day notice requirement or the two-year

statute of limitations. Guerrero v. City of Newark, 216 N.J. Super. 66, 74 (App.

Div. 1987) ("[A]lthough the statute mandates that the claimant wait six months

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from the date that notice is received before filing suit, the failure to do so was

not intended permanently to bar one from bringing an action.").

Plaintiff filed his complaint on September 10, 2019, the day after he sent

his notice of claim. 5 While Dr. Peck and Rutgers surely did not have the

opportunity at that time to conduct a proper administrative review and

adequately investigate the facts forming the basis for plaintiff's claim, by this

time, they have had sufficient time to investigate plaintiff's claims, work toward

a settlement, and identify any prejudice they might suffer from plaintiff's

premature filing. They have yet to specify any genuine concerns, as during oral

argument, when asked what prejudice they might suffer, they merely speculated

that witnesses might not be available or might not recall pertinent facts, and they

have not presented any new concerns in their appellate briefs. Moreover, Judge

Hyland could have dismissed plaintiff's complaint without prejudice, but

plaintiff could have easily refiled his complaint after waiting the statutorily

mandated six-month period. See id. at 74-75. Dismissal without prejudice

"would have little impact other than consuming the parties' and court's

resources." Id. at 75.

5
It appears that plaintiff mistakenly understood N.J.S.A. 59:8-8(b) to mean that
he was required to file the complaint within two years of the injury occurring,
rather than within two years after the accrual of his claim.
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 We conclude that the record supports Judge Hyland's findings that

plaintiff's cause of action did not accrue until July 22, 2019, and that the

premature filing of plaintiff's complaint did not prejudice Dr. Peck or Rutgers.

Therefore, we see no basis for reversal.

Considering our affirmance, Dr. Bhalla's cross-appeal to preserve his

crossclaim for contribution is moot. See Redd v. Bowman, 223 N.J. 87, 104

(2015) ("An issue is 'moot when our decision sought in a matter, when rendered,

can have no practical effect on the existing controversy.'" (quoting Deutsche

Bank Nat'l Tr. Co. v. Mitchell, 422 N.J. Super. 214, 221-22 (App. Div. 2011)).

Dr. Peck and Rutgers remain in the action below, so the other defendants are

still permitted to assert crossclaims against them.

Affirmed.

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