HACKENSACK UNIV. MED. CTR. v. Rossi

• Decision Date: 13 July 1998
• Citation: 338 N.J. Super. 139,768 A.2d 254
• Parties: HACKENSACK UNIVERSITY MEDICAL CENTER, f/k/a Hackensack Medical Center, Plaintiff v. Josephine ROSSI, Defendant-Third-Party Plaintiff v. Greystone Park Psychiatric Hospital, St. Mary's Hospital and Priscilla Ilem, M.D., Third-Party Defendants
• Court: New Jersey Superior Court

768 A.2d 254

338 N.J. Super. 139

HACKENSACK UNIVERSITY MEDICAL CENTER, f/k/a Hackensack Medical Center, Plaintiff v. Josephine ROSSI, Defendant-Third-Party Plaintiff v. Greystone Park Psychiatric Hospital, St. Mary's Hospital and Priscilla Ilem, M.D., Third-Party Defendants

Superior Court of New Jersey, Law Division, Passaic County.

Decided: July 13, 1998.

Opinion corrected July 15, 1998.

Massood & Covello, Wayne, for Defendant/Third-Party Plaintiff (Joseph A. Massood and Frank Covello, Attorneys appearing, and Mr. Massood and Mr. Covello on the briefs).

Peter G. Verniero, Attorney General for the State of New Jersey for Third-Party Defendants (Jane F. Slowinski, Deputy Attorney General, appearing and on the brief).

DE LUCCIA, J.S.C.

This matter is before the court by way of motions and cross motions for reconsideration filed by defendant-third-party plaintiff and third-party defendants. The Attorney General, on behalf of the third-party defendant, Greystone Park Psychiatric Hospital (Greystone) seeks reconsideration of an order entered March 27, 1998 by a judge, now retired, which granted the third-party plaintiff, Josephine Rossi (Rossi) leave to file a late notice of tort claim as to Greystone, I.M. Siddiqui, M.D. and Teoman Koc, M.D., individual defendants who are public employees. The order also provided that a prior filing of a late notice of claim against Greystone and its employees be deemed filed and received in accordance with N.J.S.A. 59:8-8. Finally, the order granted Rossi permission to immediately file a separate lawsuit against Greystone and its employees, by deeming the mandatory six month waiting period, as required by N.J.S.A. 59:8-8, to have been satisfied.

Rossi seeks reconsideration of prior orders which resulted in the dismissal of Rossi's third-party complaint against Greystone and its employees for her failure to file a timely notice of tort claim. Rossi seeks to have prior notices deemed timely filed and to restore her third-party complaint to the trial calendar.

In order to place the court's decision in the appropriate context, a factual narrative is required. On or about June 10, 1993, Rossi appeared before the Family Part as a defendant in a domestic violence complaint filed by her former husband. Apparently as a consequence of her demeanor and deportment, the Family Part judge questioned Rossi's competency and appointed Joseph Massood, Esq. to represent her in respect of the domestic violence proceeding. Thereafter, on or about June 18, 1993, Rossi was admitted to Hackensack Medical Center (Hackensack). She now alleges that during her confinement at Hackensack, she was subjected to medical malpractice. Subsequently, on about July 19, 1993, Rossi was transferred from Hackensack to Greystone. Although the record is not clear, it appears that Rossi's commitment to Greystone was pursuant to N.J.S.A. 30:4-27.

On June 25, 1993, Rossi's husband filed a complaint for divorce. On July 27, 1993, the same Family Part Judge appointed Gail Mitchell, Esq. as Rossi's Guardian ad Litem in respect of the dissolution action. Subsequently, in or about April, 1994 a complaint pursuant to Rule 4:86 and N.J.S.A. 3B:12-24 was filed in Morris County seeking an adjudication of Rossi as an incompetent and the appointment of a guardian. On or about August 22, 1994, the Morris County Assignment Judge declared Rossi incompetent and appointed Gail Mitchell, Esq. as her guardian. Throughout this period of time, Rossi remained involuntarily committed at Greystone, diagnosed as suffering from Bi Polar I disorder.

Rossi alleges that during her confinement at Greystone, medical personnel improperly administered medication which caused her to suffer an adverse reaction. She contends that as a consequence of the alleged malpractice, her condition deteriorated. She further alleges that the malpractice continued until May, 1995. At that time Greystone altered her medication, which resulted in an amelioration of her psychotic condition.

Between May, 1995 and February, 1996, Rossi's condition apparently continued to improve. Finally on or about February 26, 1996, Rossi's condition was in a sufficient state of remission to permit her release from Greystone to her home and out-patient care. By that date, Rossi apparently no longer met the statutory requirement of presenting a danger to herself or others sufficient to justify her continued involuntary commitment.

In the latter part of March, 1996, Rossi was served with a summons and complaint by Hackensack, seeking payment for unpaid medical services rendered during Rossi's confinement at that institution. Rossi claims that when she consulted with her attorney about the lawsuit, she first began to articulate "in a limited way" the circumstances surrounding her confinement and treatment at Greystone. This is alleged to have occurred on or about April 5, 1996.

On April 24, 1996, Rossi, through her attorney, filed an answer to Hackensack's complaint and a third-party complaint against Greystone and its employees. A copy of Rossi's third-party complaint was served on Greystone on May 30, 1996. On June 28, 1996, a copy of the third-party complaint, together with a "tort claim notice", was delivered to the State of New Jersey. Thereafter, in response to a request from the Attorney General, an additional "tort claim notice" was served on the Attorney General on March 21, 1997. On September 30, 1997, the Attorney General in writing acknowledged Rossi's claim and requested her attorney to complete an additional tort claims form provided by the Attorney General's Office. The completed form was sent to the Attorney General on or about October 13, 1997.

On June 27, 1997, the Morris County Assignment Judge, in response to Rossi's application, entered an order pursuant to N.J.S.A. 3B:12-28 restoring Rossi to competency and discharging her guardian. Thereafter, in August, 1997, Greystone filed a motion for summary judgment seeking dismissal of Rossi's third-party complaint for failure to comply with the provisions of the Tort Claims Act. On October 10, 1997, the court heard argument on the motion, and thereafter entered an order dismissing Rossi's third-party complaint without prejudice.

It is conceded that Greystone is a public entity within the definition found in N.J.S.A. 59:1-3. Accordingly, any litigation commenced against Greystone is covered by the notice provisions of the Tort Claims Act, N.J.S.A. 59:8-1, et seq. A claimant must, within ninety days of the accrual of a cause of action, file a notice of claim with the public entity. N.J.S.A. 59:8-8. Furthermore, the Act prohibits a claimant from instituting litigation against the public entity until the expiration of six months from the date the notice of claim is received. Ibid.

In the present matter, it is undisputed that Rossi did not comply with the notice provisions of the Tort Claims Act prior to the filing of her third-party complaint on April 26, 1996. The filing of the third-party complaint, together with a purported notice of claim, is not a substitute for the notice required by the statute. See Guzman v. City of Perth Amboy, 214 N.J.Super. 167, 172, 518 A.2d 758 (App. Div.1986)

. See also Martin v. Tp. of Rochelle Park, 144 N.J.Super. 216, 221, 365 A.2d 197 (App.Div. 1976).

Furthermore, the third-party complaint filed in this matter purports to assert a direct claim against Greystone rather than a claim for contribution or indemnification. The litigation commenced by Hackensack is essentially an action on a book account. Rossi's third-party complaint, however, alleges medical malpractice. While consideration of the entire controversy doctrine may have compelled Rossi to implead Greystone by way of third-party complaint, the nature of her allegations against that entity remove this case from the exemptions to the notice requirement as found by the courts in Perello v. Woods, 197 N.J.Super. 539, 485 A.2d 350 (Law Div.1984) and Berretta v. Cannon, 219 N.J.Super. 147, 529 A.2d 1070 (Law Div. 1987). Accordingly, Rossi's motion seeking reconsideration of the order dismissing her third-party complaint, without prejudice, and directing the institution of a separate complaint against Greystone and its employees is denied. See Lameiro v. West New York Bd. of Ed., 136 N.J.Super. 585, 588, 347 A.2d 377 (Law Div.1975)

.

Greystone urges this court to reconsider a prior ruling permitting Rossi to file a late notice of claim and deeming prior notices actually filed by Rossi as complying with the late notice requirements of the Tort Claims Act. In his brief, the Attorney General argues that the court erred by applying the wrong legal standard and the court was "blind" to facts alleged to be relevant to the issue of Rossi's competency. The Attorney General further argues that the issue of whether Rossi's incompetency tolled the notice requirements under N.J.S.A. 59:8-8 was properly the subject of a hearing.

The time requirements contained in N.J.S.A. 59:8-8 for the presentation of claims are tolled for infants and incompetent persons during the period of their minority or disability. The statute provides that "nothing in this section shall prohibit an infant or incompetent person from commencing an action under this Act within the time limitations contained herein, after his coming to or being of full age or sane mind." N.J.S.A. 59:8-8. Unfortunately, the legislature failed to provide a definition of the phrase, "sane mind".

Rossi suggests that the phrase "sane mind" is the functional equivalent of competency. Rossi argues that her commitment to Greystone pursuant N.J.S.A. 30:4-27 as well as the subsequent determination of her mental incompetency and appointment of a guardian pursuant to N.J.S.A. 3B:12-24 constitute findings of fact that bind this court in respect of collateral considerations of her mental state. Rossi further contends that since the order restoring her to competency and discharging the guardian was...