SYLLABUS
(This syllabus is not part of the opinion of the Court. It has
been prepared by the Office of the Clerk for the convenience of the
reader. It has been neither reviewed nor approved by the Supreme Court. Please
note that, in the interests of brevity, portions of any opinion may not
have been summarized).
Argued September 23, 2002 -- Decided December 18, 2002
PER CURIAM
Helena Matynska suffered complications following hip replacement surgery that she contends resulted from negligent post-operative care. Matynska filed suit against Robert Wood Johnson University Hospital, eleven doctors and nurses, and “John Doe, M.D. and Jane Roe, R.N.” Dr. Mark Feierstein was not a named defendant, although, for about three days after her surgery, Dr. Feierstein “covered” hospital rounds for his partner, Matynska’s treating orthopedic surgeon, Dr. Steven Fried.
Dr. Feierstein’s name appears twice in Matynska’s hospital chart, yet she claims that
she was unable to timely know that he was in any way responsible
for her treatment because she never met him, was not advised that he
would be “covering” for Dr. Fried, and because the hospital chart references to
Dr. Feierstein did not disclose his role in her care and treatment.
Two years after the institution of suit, and four years after the alleged
negligence, Matynska filed a motion to amend her complaint to name Dr. Feierstein
as a direct defendant in place of John Doe, M.D., pursuant to the
fictitious-name rule, R 4:26-4. The trial court denied the motion and, on appeal,
the Appellate Division affirmed, concluding that if Matynska had undertaken adequate investigation and
preparation, she would have discovered Dr. Feierstein’s involvement before the expiration of the
statute of limitations or within reasonable time to comply with fictitious-party practice.
The Supreme Court granted certification.
HELD: Helena Matynska’s motion to amend her complaint to name Dr. Feierstein as
a defendant pursuant to the fictitious-name rule was properly denied. Her efforts to
discover the role of all parties complicit in her injurious post-operative care were
wholly inadequate, specifically in relation to Dr. Feierstein.
1. Dr. Feierstein’s name appears twice in the hospital record as a physician
participating in Matynska’s care. She had an obligation to investigate all potentially responsible
parties in a timely manner but failed to do so. Because Matynska failed
to cross the due diligence threshold, the lower courts properly denied her the
right to amend her complaint. (Pp. 2-3)
2. The Court notes its disapproval of the tactics of Dr. Fried and
his attorney. Dr. Fried’s answers to interrogatories and responses to deposition questioning were
obfuscatory and arguably calculated to mislead Matynska regarding Dr. Feierstein’s connection to the
case, thus paving the way for an “empty chair” defense. In his interrogatory
answers, Dr. Fried failed to identify members of his group or acknowledge that
Dr. Feierstein covered him on the dates in question. (P. 4)
3. While the Court abhors the kind of tactics used by the defense,
Matynska failed in her primary obligation to diligently and timely investigate the identity
of those responsible for her negligent care and treatment. Thus, the defense’s tactics
are immaterial to its disposition. Nevertheless, the Court cautions attorneys to avoid such
conduct or risk potential consequences. (P. 4)
Judgment of the Appellate Division is AFFIRMED.
CHIEF JUSTICE PORITZ and JUSTICES, COLEMAN, LONG, VERNIERO, LaVECCHIA,
ZAZZALI, and ALBIN join in this PER CURIAM opinion.
SUPREME COURT OF NEW JERSEY
A- 83 September Term 2001
HELENA MATYNSKA,
Plaintiff-Appellant,
v.
STEVEN H. FRIED, M.D., MICHAEL AZZONI, M.D., DAVID ADAMS, M.D. and ERWIN MERMELSTEIN,
M.D.,
Defendants-Respondents,
and
MARC CARDLIA, M.D., GERALD WEISFOGEL, M.D., KATHLEEN REED, R.N., KAILAS TANNA, L.P.N., LYNANN
WALLACE, R.N., CELESTE ARDONA, L.P.N., ROBERT WOOD JOHNSON UNIVERSITY HOSPITAL, JOHN DOES, M.D.
(1 thru 15) and JANE DOES, R.N. (1 thru 15), (said names being
fictitious for other medical personnel who treated plaintiff as true identities are unknown,
Defendants.
Argued September 23, 2002 – Decided December 18, 2002
On certification to the Superior Court, Appellate Division.
Richard Galex argued the cause for appellant (Galex, Tortoreti & Tomes, attorneys; Mr.
Galex and Frances A. Tomes, on the briefs).
Gary L. Riveles argued the cause for respondent Steven H. Fried, M.D. (Dughi,
Hewit & Palatucci, attorneys).
Kenneth M. Brown argued the cause for respondents Michael Azzoni, M.D. and David
Adams, M.D. (Reiseman Sharp Brown & Rosenberg, attorneys).
Paul F. Schaaff, Jr. argued the cause for respondent Erwin Mermelstein, M.D. (Orlovsky,
Moody & Schaaff, attorneys; Jill R. O’Keeffe, on the brief).
PER CURIAM
Plaintiff, Helena Matynska suffered complications following hip replacement surgery, which she attributed to
negligent post-operative medical treatment. She filed a complaint against Robert Wood Johnson University
Hospital, eleven doctors and nurses, and “John Doe, M.D. and Jane Doe, R.N.”
Not named as a defendant was Dr. Mark Feierstein, who for nearly three
days after her surgery, “covered” hospital rounds for his partner, Matynska’s orthopedic surgeon,
Dr. Steven H. Fried.
Although Dr. Feierstein’s name appeared twice in Matynska’s hospital chart, she claims that
she did not timely know that he was in any way responsible for
her treatment because she never met him, was not advised that he would
be “covering” for Dr. Fried, and because the brief and vague hospital chart
references to Dr. Feierstein did not disclose his role in her care and
treatment.
Two years after the institution of this action, and four years after the
alleged negligence, Matynska filed a motion to amend that complaint to name Dr.
Feierstein in place of John Doe, M.D. pursuant to R. 4:26-4. The trial
court denied the motion and the Appellate Division affirmed, essentially concluding that if
Matynska had undertaken adequate investigation and preparation, she would have discovered Dr. Feierstein’s
involvement prior to the expiration of the statute of limitations or within a
reasonable time thereof. We granted certification,
171 N.J. 442 (2002), and now affirm.
The Appellate Division was correct in concluding that Matynska’s efforts to discover the
role of all parties complicit in her injury were wholly inadequate at least
insofar as Dr. Feierstein was involved. As the Appellate Division noted, the doctor’s
name appeared twice in Matynska’s hospital records as a physician having participated in
her care. Even a cursory look at the telephone book or a call
to Dr. Fried or the hospital would have uncovered Dr. Feierstein’s status as
a partner of Dr. Fried, thus alerting Matynska to his role. She had
an obligation to investigate all potentially responsible parties in a timely manner but
did not do so. In short, Matynska failed to cross the due diligence
threshold, and thus the lower courts properly denied her the right to amend
the complaint.
That is not to suggest that we approve of the tactics of Dr.
Fried and his counsel. Sharp practice came into play in the answers to
interrogatories and in Dr. Fried’s dissembling responses to the questions propounded during depositions.
Those answers, although late in the game, were given prior to Matynska’s motion
to add Dr. Feierstein as a defendant. They were obfuscatory, and arguably calculated
to mislead Matynska regarding Dr. Feierstein’s connection to the case, thus paving the
way for the so-called “empty chair” defense. Emblematic was Dr. Fried’s refusal in
interrogatory answers to even identify the members of his group or to acknowledge
that Dr. Feierstein was covering for him on the dates in question.
We abhor such tactics, which, in an appropriate case, could well be considered
lulling, if not deliberate concealment. In this case, because Matynska failed in her
primary obligation to investigate Dr. Feierstein’s involvement in a diligent and timely fashion,
the defense’s later tactics are not material to our disposition. We nevertheless caution
attorneys to avoid such conduct or risk the potential consequences.
The judgment of the Appellate Division is affirmed.
CHIEF JUSTICE PORITZ and JUSTICES COLEMAN, LONG, VERNIERO, LaVECCHIA, ZAZZALI, and ALBIN join
in this opinion.
SUPREME COURT OF NEW JERSEY
NO. A-83 SEPTEMBER TERM 2001
ON CERTIFICATION TO Appellate Division, Superior Court
HELENA MATYNSKA,
Plaintiff-Appellant,
v.
STEVEN H. FRIED, M.D.,
MICHAEL AZZONI, M.D., DAVID
ADAMS, M.D. and ERWIN
MERMELSTEIN, M.D.,
Defendants-Respondents.
DECIDED December 18, 2002
Chief Justice Poritz PRESIDING
OPINION BY Per Curiam
CONCURRING OPINION BY
DISSENTING OPINION BY
CHECKLIST