ESTATE OF EDGAR C. GEIGER, III VS. ROBERT WOOD JOHNSON UNIVERSITY HOSPITAL (L-4067-15, 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NOT FOR PUBLICATION WITHOUT THE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-2267-19

ESTATE OF EDGAR C.
GEIGER, III, by the Administratix
JANICE E. GEIGER and JANICE
E. GEIGER, Individually,

Plaintiffs-Appellants,

v.

ROBERT WOOD JOHNSON
UNIVERSITY HOSPITAL,
DR. VINETTE COELHO-D'COSTA,
DR. EDWARD FEIN,
DR. JOSEPH S. HANNA,
DR. LESLEY RABACH,
DR. SUMANA NARAYANAN,
DR. SHAZIA AMAN,
KATHERINE BARON, R.N.,
ARLENE HENRY, R.N.,
A. RODEL, R.N.,

Defendants,

and

DR. PAVELA SAHA,
DR. KUSUM PUNJABI,
DR. CHRISTIAN MCDONOUGH,
DR. ALIRAZA DINANI,
 Defendants-Respondents.
____________________________

Argued April 13, 2021 – Decided July 20, 2021

Before Judges Gilson and Gummer.

On appeal from the Superior Court of New Jersey, Law
Division, Middlesex County, Docket No. L-4067-15.

Randi S. Greenberg argued the cause for appellants and
(Shamy & Shamy LLC, attorneys; George Shamy, of
counsel and on the brief).

Michael J. Lunga argued the cause for respondents Dr.
Pavela Saha, Dr. Christian McDonough and Dr. Aliraza
Dinani (Michael J. Lunga LLC, attorneys; Michael J.
Lunga, on the brief).

Russell J. Malta argued the cause for respondent Dr.
Kusum Panjabi (Orlovsky, Moody, Schaaff, Conlon &
Gabrysiak LLC, attorneys; Paul F. Schaaff, Jr., of
counsel, Russell J. Malta, on the brief).

PER CURIAM

In this medical-malpractice case, instead of serving a tort-claim notice on

Rutgers, the State University of New Jersey – the State entity that actually

employed four defendant doctors – plaintiffs served notices on New Jersey's

Department of Treasury and Robert Wood Johnson University Hospital

(RWJUH). Arguing they substantially complied with the notice requirements of

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

A-2267-19
2
appeal orders dismissing their complaint with prejudice as to the four doctors

for failure to file timely tort-claims notices. Unpersuaded, we affirm.

Because the case comes to us as a result of defendants' motions to dismiss,

we assume as true all facts alleged by plaintiffs and give them "the benefit of all

inferences that may be drawn from those facts." Feinberg v. N.J. Dep't of Env'l

Prot., 137 N.J. 126, 129 (1994). Decedent Edgar C. Geiger, III, was admitted to

RWJUH on July 12, 2013. According to plaintiffs Estate of Edgar C. Geiger,

III, and Janice E. Geiger, defendants' negligence caused his death on July 22,

2013.

In a letter dated October 7, 2013, addressed to "Dept. of Treasury[,]

Bureau of Risk Management" and copied to RWJUH, plaintiffs' counsel stated

he had been retained to represent Edgar Geiger for injuries sustained on July 12,

2013, and enclosed a claim notice, stating "[e]mployees" of RWJUH had

"deviated from accepted standards of care in the care and treatment of the

[decedent] resulting in his demise" and identifying RWJUH and "all employees,

nurses, doctors and treating individuals whose names appear in the hospital

A-2267-19
3
records" as the state agency and state employees who caused the alleged

injuries.1

The Department of the Treasury responded in a December 13, 2013 letter,

advising plaintiffs' counsel "your notice indicates quite clearly that the claim is

against a local public entity and does not involve the State of New Jersey or any

of its agencies."

On July 10, 2015, plaintiffs filed a complaint, naming as defendants,

among others, RWJUH and doctors Pavela Saha, Kusum Punjabi, Christian

McDonough, and Aliraza Dinani. In her answer, which was filed on October

19, 2015, Punjabi claimed entitlement to "the rights and privileges afforded by"

the TCA, pleaded "all defenses to which University of Medicine and Dentistry

[UMDNJ] is entitled . . . pursuant to the [TCA],"2 and asserted plaintiffs had

1
In their brief, plaintiffs assert counsel sent the letter before obtaining copies
of the decedent's medical records, which were received "sometime in October
2013." Plaintiffs concede those medical records contained "consent forms
executed by [the decedent] when he presented for treatment," which
"mention[ed] . . . the individual defendants' affiliation with Rutgers/UMDNJ."
2
In her appellate brief, Punjabi states she was employed by Rutgers at the time
of the alleged negligence and notes the motion judge and parties "sometimes
referred to [her] employer as UMDNJ, no doubt because the reorganization of
UMDNJ into Rutgers . . . occurred just before the alleged negligent conduct in
this case." In their appellate brief defendants Saha, McDonough, and Dinani
describe UMDNJ as Rutgers's "predecessor" and reference the "reorganization

A-2267-19
4
"failed to file the requisite Tort Claims Notice" pursuant to the TCA. In its

answer, which was filed on October 22, 2015, RWJUH asserted it is "a private

not-for-profit corporation."

In a letter dated October 23, 2015, counsel for defendants Saha,

McDonough, and Dinani advised plaintiffs' counsel those defendants were

"Rutgers employees." In their answers, which Saha filed on November 9, 2015,

and McDonough and Dinani filed on November 23, 2015, Saha, McDonough,

and Dinani asserted they were employed by "Rutgers, The State University of

New Jersey (formerly [UMDNJ]). . . an agency of the State of New Jersey" and

pleaded "every defense" pursuant to the TCA, including "every defense . . . by

virtue of [plaintiffs'] failure to comply with the notice provisions" of the TCA.

They also made a demand for "a Notice of Claim pursuant to Title 59."

Ninety-one days after McDonough and Dinani filed their answer in which

they stated they were employed by Rutgers, defendants Saha, McDonough, and

Dinani moved to dismiss plaintiffs' complaint with prejudice for failure "to file

a timely Notice of Claim" pursuant to the TCA, arguing the ninety-day time

period under the TCA for the filing of a notice of claim had passed, whether

of UMDMJ into Rutgers." See N.J.S.A. 18A:64M-2(r) (discussing legislation
regarding transfer of certain UMDNJ schools to Rutgers).
A-2267-19
5
using as the accrual date the date of defense counsel's letter (October 23, 2015),

the date Saha filed her answer (November 9, 2015), or the date McDonough and

Dinani filed their answer (November 23, 2015). Defendant Punjabi also moved

to dismiss plaintiffs' complaint with prejudice for "failure to timely file a Notice

of Tort Claim," using the date she filed an answer (October 19, 2015) as the

accrual date.3

Plaintiffs opposed defendants' motions and on March 31, 2016, cross-

moved "to permit plaintiffs' filing of a late notice of claim," arguing their

October 7, 2013 notices to the Treasury Department and RWJUH substantially

complied with the requirements of the TCA and were sufficient to put the State

on notice of plaintiffs' claims and, alternatively, exceptional circumstances

justified their late claim notice. Defendants opposed plaintiffs' motion, asserting

plaintiffs had not demonstrated extraordinary circumstances.

3
In deciding whether plaintiffs substantially complied with the notice
requirements of the TCA, we need not opine as to whether the dates defendants
filed their answers constituted accrual dates for plaintiffs' claims. We note,
though, even with the information provided in the answers regarding defendants'
affiliation with Rutgers, plaintiffs took no action to serve notice on Rutgers.
A-2267-19
6
 On April 15, 2016, Judge Jamie D. Happas rendered an oral decision,

granting defendants' motions and denying plaintiffs' motion.4 Judge Happas

found plaintiffs' October 7, 2013 notices were timely but were "insufficient to

constitute a proper notice, as they were not sent to the appropriate entity." Judge

Happas held plaintiffs were "required to serve UMDNJ, the local public entity

employing the defendants, rather than the State of New Jersey." She found "[a]t

the time of receipt of the denial letter from the State, plaintiff could have sought

relief from the [c]ourt under N.J.S.A. 59:8-9 seeking permission to serve the late

notice on the appropriate local public entity," but "plaintiff did not take

advantage of that option." She concluded plaintiffs' claims failed under N.J.S.A.

59:8-8 because plaintiffs' actions were "insufficient to put the appropriate local

entity on notice." She also held plaintiffs' October 7, 2013 notices did not

"substantially comply" with the requirements of the TCA because "the notices

were sent to the wrong entity and did not identify the appropriate person or

entities involved," thereby depriving the correct entity of the opportunity to

4
In our April 27, 2020 orders, we denied defendants' motions to dismiss
plaintiffs' appeal of the order denying plaintiffs' motion because "[p]laintiff has
represented he is not appealing from the denial by the trial court of his motion
for leave to file a late notice of claim under the [TCA], but only from the aspect
of the trial court's determination that the notice of claim plaintiff did timely file
was inadequate."
A-2267-19
7
"investigate or review plaintiff[s'] claim [or] the ability to correct their

practices." Judge Happas issued orders granting defendants' motions and

dismissing the complaint against them with prejudice. Plaintiffs appeal those

orders, arguing their notices to the Department of Treasury and RWJUH

substantially complied with the notice requirements of the TCA.

Plaintiffs do not dispute Rutgers employed the defendant doctors; do not

contend they served a tort-claims notice on Rutgers, UMDNJ, or the defendant

doctors; and do not appeal the motion judge's denial of their motion for leave to

file a late notice. Thus, the only issue before us is whether plaintiffs' service on

the Department of Treasury and RWJUH constituted substantial compliance

with the notice requirements of the TCA. Because only that question of law

remains, we review the motion judge's decision de novo. See Jones v. Morey's

Pier, Inc., 230 N.J. 142, 153 (2017).

The TCA governs when public entities and their employees are liable for

their torts, Nieves v. Adolf, 241 N.J. 567, 574-75 (2020), and "imposes strict

requirements upon litigants seeking to file claims against public entities,"

McDade v. Siazon, 208 N.J. 463, 468 (2011). Rutgers is a public entity to which

the TCA applies. See Fine v. Rutgers, State Univ. of N.J., 163 N.J. 464, 468

(2000).

A-2267-19
8
 To proceed with a tort claim against a public entity or its employees, a

plaintiff must file a notice of claim with the public entity allegedly involved in

the tort within ninety days of the cause of action's accrual. O'Donnell v. N.J.

Tpk. Auth., 236 N.J. 335, 345 (2019); see also N.J.S.A. 59:8-8. The purpose of

the notice is to allow the public entity to review and investigate the claim, afford

it the opportunity to settle the claim, allow it to correct the conditions or

practices that gave rise to the claim, and give it advance notice of its poten tial

liability. Velez v. City of Jersey City, 180 N.J. 284, 290 (2004). Accordingly,

the notice of claim must "be filed directly with the specific local entity at issue."

McDade, 208 N.J. at 476; see also N.J.S.A. 59:8-7 ("[a] claim for injury or

damages arising under this act against a local public entity shall be filed with

that entity"). The failure to file "within ninety days under normal conditions, or

within one year under extraordinary circumstances" bars the plaintiff's claim.

Ben Elazar v. Macrietta Cleaners, Inc., 230 N.J. 123, 133 (2017); see also

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

To prevent technical defects from barring legitimate claims, courts have

applied the equitable doctrine of "substantial compliance." D.D. v. Univ. of

Med. & Dentistry of N.J., 213 N.J. 130, 159-60 (2013); Lebron v. Sanchez, 407

N.J. Super. 204, 215-16 (App. Div. 2009). "[S]ubstantial compliance means that

A-2267-19
9
the notice has been given in a way, which though technically defective,

substantially satisfies the purposes for which notices of claims are required."

Lebron, 407 N.J. Super. at 216 (quoting Lameiro v. W. N.Y. Bd. of Educ., 136

N.J. Super. 585, 588 (Law Div. 1975)). Substantial compliance is an equitable

doctrine used "to avoid the harsh consequences that flow from technically

inadequate actions that nonetheless meet a statute's underlying purpose." Galik

v. Clara Maass Med. Ctr., 167 N.J. 341, 352 (2001). Parties seeking to apply

the substantial-compliance doctrine must demonstrate they took "a series of

steps . . . to comply with the statute involved," Id. at 353 (quoting Bernstein v.

Bd. of Trs. of the Tchrs.' Pension and Annuity Fund, 151 N.J. Super. 71, 76-77

(App. Div. 1977)), and "those steps achieved the statute's purpose, as for

example, providing notice," Cnty. of Hudson v. State Dept. of Corr., 208 N.J. 1,

22 (2011). Substantial compliance applies only if the other party is not

prejudiced, ibid., and there is "a reasonable explanation why there was not a

strict compliance with the statute," Bernstein, 151 N.J. Super. at 77.

Application of the substantial-compliance doctrine in the tort-claims

context "has been limited carefully to those situations in which the notice,

although both timely and in writing, had technical deficiencies that did not

deprive the public entity of the effective notice contemplated by the statute."

A-2267-19
10
D.D., 213 N.J. at 159; see e.g., Lebron, 407 N.J. Super. at 217-19 (holding notice

that did not assert expressly a negligent-supervision theory of liability

substantially complied given that it identified the plaintiff and her attorney,

described and identified the date of the incident, listed the injuries incurred, and

demanded damages); Henderson v. Herman, 373 N.J. Super. 625, 633 (App. Div.

2004) (finding notice of claim against police dispatch and emergency transport

personnel substantially complied even though plaintiff failed to include names

of specific dispatchers).

This case isn't about "technical deficiencies that did not deprive the public

entity of the effective notice," D.D., 213 N.J. at 159, or about "the sufficiency

of detail" provided in a notice of claim, Lebron, 407 N.J. Super. at 209. It is

about a failure to provide any notice to the public entity at issue, directly

defeating the purpose of the TCA's notice requirements.

Contrary to plaintiffs' argument, service on the Treasury Department is

not the equivalent of service on Rutgers. In enacting the TCA, the Legislature

expressly "required that the notice of claim be filed directly with the specific

local entity at issue." McDade, 208 N.J. at 476. N.J.S.A. 59:8-7 provides:

A claim for damage or injury arising under this act
against the State shall be filed either with (1) the
Attorney General or (2) the department or agency
involved in the alleged wrongful act or omission. A

A-2267-19
11
 claim for injury or damages arising under this act
against a local public entity shall be filed with that
entity.

To accept plaintiffs' argument, we would have to ignore that language –

something we cannot do. We "must presume that every word in a statute has

meaning," In re Att'y Gen.'s "Directive on Exit Polling: Media & Non-Partisan

Pub. Int. Grps.", 200 N.J. 283, 297-98 (2009), and we "give effect to every

word," Med. Soc'y of N.J. v. N.J. Dep't of Law & Pub. Safety, 120 N.J. 18, 26

(1990).

Plaintiffs' claims arise from the alleged negligence of employees of a local

public entity,5 Rutgers, which plaintiffs never served. Even if plaintiffs were

making a claim directly against the State, they would have had to serve a notice

of claim on either the Attorney General or the "department or agency involved

in the alleged wrongful act," which they also failed to do. See N.J.S.A. 59:8-7.

Instead, they served the Department of Treasury, which had nothing to do with

the alleged negligence at issue, and RWJUH, which is not a public entity and

did not employ the defendant doctors.

5
N.J.S.A. 59:1-3 provides "'State' shall mean the State and any office,
department, division, bureau, board, commission or agency of the State, but shall
not include any such entity which is statutorily authorized to sue and be sued."
N.J.S.A. 59:8-2 provides "[f]or purposes of this chapter 'local public entity'
means a public entity other than the State."
A-2267-19
12
 Plaintiffs recognized the necessity of filing a tort-claim notice within

ninety days of the decedent's death. They simply served the wrong entities and

never took steps to ensure they had served the correct entity, even though (1)

they knew of the individual defendants' affiliations with Rutgers from the

consent forms they had received in October 2013 and the answers defendants

had filed in October and November 2015 and (2) they knew RWJUH was not a

state entity from the Department of Treasury's December 13, 2013 letter and the

answer RWJUH had filed in October 2015. By failing to serve Rutgers –

initially and even after they knew it employed the defendant doctors – plaintiffs

deprived Rutgers of its statutory right to notice. See D.D., 213 N.J. at 159.

Judge Happas correctly determined that plaintiffs had not actually or

substantially complied with the notice requirements of the TCA and properly

dismissed their claims as to these defendants.

Affirmed.

A-2267-19
13