News: In September 2017, a patient was treated for leg cellulitis with a leg debridement, and subsequently developed abdominal problems. After undergoing rehabilitation and separate treatment for those abdominal problems for two years, the patient discovered in June 2019 that his condition may have been a surgical complication following the debridement, and thus attributable to the doctor’s negligence. The patient filed a notice of claim and complaint against the doctor and hospital.

Although patients typically must submit a notice of claim within 90 days of the negligent act causing injury, the patient was allowed to file the notice nearly two years later because a reasonable person in his position would not have known his injuries could have been caused by another person. Because the patient filed suit within 90 days of discovering facts, his lawsuit was not time-barred.

Background: On Sept. 11, 2017, a patient in New Jersey was admitted to a hospital and diagnosed with right leg cellulitis (bacterial skin infection). A doctor performed drainage procedures and debridement. A few days later, while still hospitalized, the patient also was diagnosed with colonic obstruction. As a result, the doctor and his surgical team performed an exploratory laparotomy, lysis of adhesions, and subtotal colectomy and creation of end ileostomy. The patient was discharged a week later and was readmitted after a few days; he was discharged again three weeks later. Immediately thereafter, the patient received almost continuous treatment from various wound care centers and rehabilitation facilities for about two years. At the time of the appeal, the patient still was receiving treatment for his injuries.

On July 22, 2019, the patient went to lunch with a physician friend. The patient told his friend about his abdominal problems. The friend was concerned by what he heard. The patient also became concerned and asked the friend to write a letter expressing his concerns about the patient’s treatment.

In a letter dated Sept. 2, 2019, the friend detailed his discussion with the patient about his abdominal problems. He wrote that 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 the patient about a phone app called UpToDate that provides “detailed medical information for clinical diagnosis and treatment of various conditions.” Upon searching UpToDate for postsurgical complications following a leg debridement, the app identified the standard diagnostic approach as placing a nasogastric tube and conducting a CT scan of the abdomen without contrast before performing abdominal surgery.

On Sept. 5, the patient retained counsel and filed a notice of claim under the New Jersey Tort Claims Act (TCA), and ultimately filed a malpractice suit. The TCA establishes that public entities generally are immune from tort liability, except in certain limited circumstances. If those circumstances apply, a patient must first file a notice of claim with the public entity within 90 days of accrual of the cause of action to preserve the right to file a lawsuit. Then, the claimant must 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. In the complaint, the patient attested that before speaking with the friend in July 2019, he never had reason to suspect the doctor had injured him, and no other medical professional had ever indicated that another person could have caused his conditions. However, after reading the friend’s letter, he believed for the first time that he was the victim of medical malpractice.

The doctor and the medical facility moved to dismiss the case as a matter of law, but the trial court denied the motion based on the patient’s allegation 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” the friend, given the patient was receiving treatment for two consecutive years after the alleged malpractice and had never been informed or had any reason to believe the original doctor could be at fault. The trial court found that at the earliest, the patient received notice of a possible cause of action when he met with his friend in July 2019. Therefore, plaintiff’s September 2019 TCA notice of claim was timely.

On appeal, the original doctor and the medical facility argued the patient’s notice of claim was not timely. The TCA does not define the time at which a cause of action accrues, but generally, 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 or omission took place. However, an exception to this standard is the “discovery rule,” which applies “where the victim either is unaware that he has been injured or, although aware of an injury, does not know that a third party is responsible.” When applying the discovery rule, the proper inquiry is whether the facts presented would alert a reasonable person, exercising ordinary diligence, that he was injured due to the fault of another.

The court of appeal affirmed the trial court’s findings, rejecting the defense arguing the notice of claim was not timely because the patient received continuous treatment for almost two years. During that time, no doctor or healthcare professional treating the plaintiff told him the doctor was possibly at fault for his continued complications, and no other facts in the record gave rise to any duty to investigate. In essence, there were no facts indicating the plaintiff should have questioned the doctor’s diagnosis and treatment. The court also found that while the patient did not comply with the TCA’s six-month waiting period requirement, his premature filing of the complaint did not prejudice the original doctor or the medical facility. Therefore, it affirmed the trial court’s denial of the motion to dismiss in its entirety.

What this means to you: One defense tool often available to medical providers is preclusion of litigation where statutory filing requirements are not properly observed. This case is important to learn how time restraints are applied in medical malpractice suits. All states use specific statutes of limitations, and some states enacted additional time requirements to prevent a patient from waiting too little or too long before notifying the medical provider of intention to file suit. These statutory requirements were enacted to protect public hospitals from unfair prejudice caused by a patient’s unreasonable delay. Such statutes require the patient to provide the public entity with prompt notification of a claim to allow the hospital to adequately investigate the facts and prepare a defense.

The general rule is the clock starts when the negligent act or omission took place. However, in certain situations like this case, the accrual date is tolled from the date of the tortious act or injury because the injured patient either does not know of the injury, or does not know the injury was caused by a third person. It is rare for a surgeon to perform an open abdominal procedure without the benefit of diagnostic data and radiologic imaging. This places the patient, surgeon, and hospital at extreme risk and should be considered negligence, and any untoward outcome malpractice. Regardless of the cause of the injury, the reckless way this case was managed needs to be addressed by the courts as soon as the patient realizes the harm he suffered was unnecessary or could be mitigated through a more thoughtful approach that fell within the standard of care.

This ruling is based on notions of fairness, which often are considered when calculating time constraints for lawsuits. The appeals court reasoned the mere fact the patient was admitted to the hospital for one condition and subsequently underwent treatment for an additional condition would not necessarily cause a reasonable person to suspect his or her physician committed malpractice. A patient could be treated for a second condition and still receive appropriate treatment and care. To hold otherwise would be to hold that all patients must second-guess medical treatment, even if no facts suggest malpractice occurred. Here, the patient “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.”

Moreover, this case shows that even where a patient does not abide by the statutorily required six-month waiting period between notifying the hospital of his claim and filing suit, the complaint still might survive unless the hospital can concretely show prejudice. Here, although the patient waited only one single day between filing a notice of claim and filing his complaint, the hospital could only speculate this failure to wait six months would negatively affect the hospital’s investigation. The appeals court found “[d]ismissal without prejudice would have little impact other than consuming the parties’ and court’s resources.”


  • Decided March 15, 2021, in the Superior Court of New Jersey, Appellate Division, Case Number A-2357-19.