Cafferata v. Peyser

• Citation: 597 A.2d 1101,251 N.J.Super. 256
• Decision Date: 17 October 1991
• Docket Number: No. A-2931-90T5,A-2931-90T5
• Parties: William CAFFERATA and Sheryl Cafferata, his wife, Plaintiffs-Appellants, v. Irving G. PEYSER, M.D. and Mitchell S. Carter, M.D., Defendants-Respondents.
• Court: New Jersey Superior Court – Appellate Division

Page 256

251 N.J.Super. 256

597 A.2d 1101

William CAFFERATA and Sheryl Cafferata, his wife Plaintiffs-Appellants, v. Irving G. PEYSER, M.D. and Mitchell S. Carter, M.D. Defendants-Respondents.

No. A-2931-90T5

Superior Court of New Jersey,

Appellate Division.

Submitted Oct. 1, 1991.

Decided Oct. 17, 1991.

Seeber, Bowkley, Greb & Zelante, attorneys for plaintiffs-appellants (C. William Bowkley, Jr., on the brief), Dover.

Giblin & Combs, attorneys for defendants-respondents (Jeremy P. Cooley and Steven G. Schwesinger, on the brief), Morristown.

Before Judges PRESSLER, SHEBELL and D'ANNUNZIO.

The opinion of the court was delivered by

PRESSLER, P.J.A.D.

The question raised by this appeal is whether plaintiff's medical malpractice action is barred by the entire controversy doctrine by reason of his pro se settlement of a prior Special Civil Part action brought against him by the defendants-physicians' professional association to recover its bill for services for the same medical procedure of which the malpractice suit complains. We are satisfied that under the circumstances here, application of the entire controversy doctrine is entirely inapposite. Accordingly, we reverse the summary judgment dismissing the malpractice action on that preclusionary ground.

The relevant facts are not in dispute. Plaintiff William Cafferata, whose wife Sheryl Cafferata sues per quod, consulted defendant Irving G. Peyser, a vascular surgeon, late in 1986 complaining of ulcers on his left leg. Peyser recommended surgery and, assisted by his partner, defendant Mitchell S. Carter, he performed a surgical procedure in January 1987 consisting of bilateral varicose vein ligation and stripping. Plaintiff continued under defendants' post-operative treatment for the next several months. In March 1987, however, because of his dissatisfaction with his progress, plaintiff consulted another physician who took over his care and apparently told him, after reviewing the medical records, that Dr. Peyser had done inadequate pre-operative testing.

In the interim, plaintiff had apparently transmitted Peyser's bill, in the amount of $1,275, to his health insurance carrier. Although the record does not indicate when the carrier finally paid the bill, it is at least clear that it was not paid as of June 1987, when a complaint was filed, as an apparently routine collection matter in the Special Civil Part, by "Irving G. Peyser, M.D. & Mitchell S. Carter, M.D., P.A." against plaintiff and his wife demanding payment. They promptly responded by the filing of a "To Whom It May Concern" letter, stating that:

We are responding to the summons and complaint in [sic] which we received on June 24, 1987. We have submitted the bill to the Ins. Company. The payment will be mailed to Dr. Peyser directly from the Ins. Company, as soon as possible.

Thank you,

William R. Cafferata

Sheryl Cafferata

The next recorded notation respecting the progress of the Special Civil Part collection action informs that a settlement conference was conducted on April 15, 1988, by the trial judge's law secretary, participated in by plaintiff and, for the professional association, by one Susan Ellison, who is neither an attorney nor, apparently, a principal or professional employee of the association. Nor does the record indicate whether she is a lay employee of the professional association itself or of the agency which collects the association's bills. While there is no record of the conference itself, it appears that by that time, plaintiff's carrier had paid the bulk of the bill directly to the physicians, leaving only an uncovered balance of $160.80. As a result of the conference, plaintiff agreed to pay that difference and a written stipulation of settlement was then executed by plaintiff and Ellison and witnessed by the law clerk. It provided, in relevant portion, that:

It is hereby stipulated and agreed by and between the parties that the above captioned matter is settled on the following terms: Defendant agrees to pay $160.80 to settle this case.

The stipulation bears the further notation "Received in Full" accompanied by Ellison's initials. No releases were apparently proffered or executed, nothing was placed on the record in open court, there was no direct judicial intervention at any point, and no lawyer for either party appeared or was consulted.

Some four months later, plaintiff, increasingly unhappy with the consequences of his surgery, consulted his present attorneys, who then sought an expert opinion on the question of whether those consequences were attributable to malpractice by Drs. Peyser and Carter in performing the surgery. Receiving an affirmative expert's report in December 1988, they commenced this action in early January 1989, several weeks prior to the expiration of two years from the date of the surgery. Defendants then moved for summary judgment relying on the entire controversy doctrine as codified by R. 4:30A and contending that the disposition of the Special Civil Part collection case without plaintiff having counterclaimed therein on his malpractice action barred the later institution of this action.

In considering the motion, the trial judge focused on the issue, explored by defendants in deposing plaintiff, of whether plaintiff knew or was chargeable with knowledge of his malpractice claim prior to the settlement of the collection case. Because plaintiff had admitted on his deposition that he had by then already suspected that defendants had "done something wrong" and was disinclined for that reason to pay the uncovered balance of their bill, the trial judge concluded that plaintiff had sufficient knowledge of his malpractice cause to require him to raise it in the collection case on pain of preclusion under the entire controversy doctrine.

The reason for the judge's focus on plaintiff's knowledge is plain. Clearly, whatever else the preclusionary scope of the entire controversy doctrine may be, it is well settled that it does not bar transactionally related claims of which a party was unaware during the pendency of the prior litigation. See Mauro v. Raymark Industries, Inc., 116 N.J. 126, 135-136, 561 A.2d 257 (1989); Ayers v. Jackson Tp., 106 N.J. 557, 583, 525 A.2d 287 (1987); Zaromb v. Borucka, 166 N.J.Super. 22, 27, 398 A.2d 1308 (App.Div.1979); Devlin v. Johns-Manville Corp., 202 N.J.Super. 556, 569, 495 A.2d 495 (Law Div.1985). And cf. Brown v. Brown, 208 N.J.Super. 372, 506 A.2d 29 (App.Div.1986) (the entire controversy doctrine ordinarily bars claims arising during the course of litigation if not therein reserved). The court did not, however, deal appropriately with that issue. The knowledge of the existence of a cause of action which will invoke the entire controversy doctrine is the same as the knowledge which will trigger the running of the statute of limitations in those cases to which the discovery rule of deferred accrual is applicable. See Mauro and Ayers, supra. The record before the trial judge was at least ambiguous as to whether plaintiff had such knowledge when he settled the collection case for $160.80. Certainly his admission that he sensed something was wrong with his treatment hardly indicates requisite knowledge, and he did not in fact consult an attorney until some months following the settlement. See, e.g., Graves v. Church & Dwight Co., Inc., 115 N.J. 256, 558 A.2d 463 (1989); Abboud v. Viscomi, 111 N.J. 56, 543 A.2d 29 (1988); Lynch v. Rubacky, 85 N.J. 65, 424 A.2d 1169 (1981). Consequently an evidential Lopez ¹ hearing would in any event have been required for resolution of the knowledge question. We are persuaded, however, that that question need not be resolved since we conclude that even if plaintiff then had knowledge of the existence of his malpractice claim, his settlement of the collection case did not bar its later prosecution.

The joinder requirements of the entire controversy doctrine are designed to achieve economy in litigation by avoiding the waste, inefficiency, delay and expense of piecemeal and fragmented litigation. Cogdell v. Hospital Center at Orange, 116 N.J. 7, 15, 560 A.2d 1169 (1989); Brown v. Brown, supra, 208 N.J.Super. at 377-378, 506 A.2d 29. The doctrine is equitable in nature and is fundamentally predicated upon "judicial fairness and will be invoked in that spirit." Crispin v. Volkswagenwerk, A.G., 96 N.J. 336, 343, 476 A.2d 250 (1984), quoted with approval by Cogdell, supra, at 27, 560 A.2d 1169. Thus, as in the case of all other preclusionary doctrines, its application requires, as a matter of first principle, that the party whose claim is...