(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 January 18, 2000 -- Decided June 5, 2000
PER CURIAM
This case involves a transitional application of the principles recently announced in Lowe v. Zarghami,
158 N.J. 606 (1999) governing the late notice of tort claims against public entity health-care providers under the Tort
Claims Act (TCA). The Appellate Division filed its judgment in this case fourteen days before this Court's decision
in Lowe.
Under the New Jersey Tort Claims Act, a party has ninety days from the time a claim accrues to file a
notice of claim. N.J.S.A. 59:8-8. The purpose of the 90-day limit is to permit a public entity to undertake an
investigation while witnesses are available and facts are fresh.
N.J.S.A. 59:8-9 allows the filing of a late notice of claim, provided that a public entity or employee would
not be substantially prejudiced. Application for permission to file a late notice of claim must demonstrate
“sufficient reasons constituting extraordinary circumstances” for the failure to file the notice within 90 days. The
statute does not define what circumstances are considered “extraordinary,” necessarily leaving it for a case-by-case
determination as to whether the reasons given rise to the level of “extraordinary.”
In Lowe, this Court found that extraordinary circumstances existed for a patient who was justifiably
unaware that her physician was a public employee. The defendant-physician in Lowe was a clinical professor
employed by the University of Medicine and Dentistry of New Jersey (UMDNJ), but practiced medicine at Robert
Wood Johnson University Hospital, a UMDNJ-affiliated private hospital. The Court found that the apparent status
of the defendant as a private physician obscured his true status as a public employee. The Court directed that in
future cases, physicians employed by a State teaching hospital as clinical professors must advise their patients, both
orally and in writing, that they are employees of a public entity.
The question before the Court is whether the Ventolas, like the plaintiffs in Lowe, have demonstrated
“extraordinary circumstances” for their failure to file a timely notice of claim.
Samuel Ventola has been a resident of the New Jersey Veteran's Memorial Home (VMH) at Paramus since
1993. At the time of these proceedings, he was a sixty-seven-year-old veteran of the U.S. armed forces who was
physically disabled. Josephine, Samuel's wife, was sixty-eight years old. During a visit to her husband on
November 9, 1997, Josephine observed that Samuel's foot was swollen. Samuel was transferred to another facility
for examination. The examination revealed that Samuel's leg was broken and badly infected. The physician who
treated Samuel rendered an opinion that Samuel had suffered from an undiagnosed broken leg for approximately
four weeks. Gangrene had set in by the time of the examination, and as a result, Samuel's leg was amputated below
the knee on November 13, 1997.
Josephine consulted an attorney in December 1997. Because the Ventolas understood the VMH to be a
federal hospital, and so advised their attorney, an administrative claim form was filed with the United States
Department of Veterans Affairs, pursuant to the Federal Tort Claims Act. The Department of Veterans Affairs
informed the attorney on May 6, 1998, that the facility was operated by the State of New Jersey.
On May 21, 1998, the Ventolas sought permission to file a late notice of claim against the State pursuant to
N.J.S.A. 59:8-9. In support, Josephine certified that because the facility is exclusively operated for veterans and
because Pentagon officials were regularly at the facility, she believed it was owned and operated by the federal
government.
VMH argued that Josephine's belief was not in good faith and, even if it was, that belief was unreasonable.
It presented documents signed by the Ventolas on Samuel's admission, approximately four years prior to the injury,
which indicated that VMH was operated by New Jersey. Among other things, these documents contained letterhead
with the words, “State of New Jersey, Department of Military and Veterans' Affairs, New Jersey Veterans'
Memorial Home at Paramus;” a statement at the bottom that “New Jersey is an Equal Opportunity Employer;” and
the Seal of the State at the top. In addition, Josephine made her monthly checks payable to “N.J. Veterans Home at
Paramus.”
The trial court denied the Ventolas' motion, concluding that they had failed to demonstrate extraordinary
circumstances. The court found that the Ventolas' belief that the institution was federally-run was unreasonable
because they had in their possession information that clearly indicated the facility is a State-run institution. The
court also found that no one had misled the Ventolas about the status of the facility.
The Appellate Division affirmed the denial in an unpublished opinion. It observed that the decision to
grant or deny an application to file a late notice of claim is discretionary and that the trial court did not misconstrue
the facts or applicable law. The Supreme Court granted the Ventolas' petition for certification.
HELD: In the circumstances presented here, the ninety-day notice provisions of the TCA should be tolled to allow
the claimant to seek compensation under the TCA.
1. The United States Veterans' Health Administration is perhaps the most visible of all veterans' benefits and
services. The VA health-care system includes medical centers, clinics, and nursing homes throughout the United
States. In New Jersey, there are twelve facilities that provide health care services to veterans under the Veterans'
Health Administration. The State of New Jersey, Department of Military and Veterans' Affairs, operates three
veterans' homes. The home at Paramus is one of these. The relationship between the State veterans' memorial
homes and the Veterans' Administration is close. Residents of the homes requiring more serious treatment are
sometimes referred to area VA facilities. In addition, the VA operates out-patient clinics at some of the homes on a
regular basis. (Pp. 10-12)
2. The Ventolas' confusion concerning the status of the veterans' home was understandable and should not bar the
presentation of their claim. In every respect other than their appreciation of the role of the New Jersey Department
of Military and Veterans' Affairs, the Ventolas were diligent in prosecuting their claims. This should be the last
occasion to apply the principles of Lowe. Presumably, if State health-care providers wish to rely on the notice
provisions of the TCA, they will have made their status clear to patients. (Pp. 12-14)
The judgment of the Appellate Division is REVERSED, and the matter is REMANDED to the Law
Division for further proceedings in accordance with this opinion.
CHIEF JUSTICE PORITZ and JUSTICES O'HERN, GARIBALDI, STEIN, COLEMAN and
LONG join in this opinion. JUSTICE VERNIERO did not participate.
SUPREME COURT OF NEW JERSEY
A-
119 September Term 1998
SAMUEL A. VENTOLA and
JOSEPHINE VENTOLA, his wife,
Plaintiffs-Appellants,
v.
NEW JERSEY VETERAN'S MEMORIAL
HOME, Paramus, New Jersey,
Defendant-Respondent.
Argued January 18, 2000-- Decided June 5, 2000
On certification to the Superior Court,
Appellate Division.
Craig W. Alexander argued the cause for
appellants (Mandelbaum, Salsburg, Gold,
Lazris, Discenza, Steinberg, attorneys).
Jerry Fischer, Assistant Attorney General,
argued the cause for respondent (John J.
Farmer, Jr., Attorney General of New Jersey,
attorney; Mary C. Jacobson, Assistant
Attorney General, of counsel; Valerie L.
Egar, Deputy Attorney General, on the
brief).
PER CURIAM
This case involves a transitional application of the
principles recently announced in Lowe v. Zarghami,
158 N.J. 606
(1999) that govern the late notice of tort claims against public
entity health-care providers under the Tort Claims Act (TCA),
N.J.S.A. 59:1-1 to 12-3. The Appellate Division decided this
case on May 24, 1999, fourteen days before our decision in Lowe.
In Lowe, the Court found that the status of a physician
health-care provider as an employee of the State was “obscured.”
158 N.J. at 630. This created the extraordinary circumstances
permitting notice of claim to be filed more than ninety days
after the cause of action accrues. The Court directed that in
future cases and to resolve patients' doubt surrounding the
status of their physician health-care providers, the State
teaching hospital must require clinical professors employed by it
to advise their patients, both orally and in writing, that they
are employees of a public entity. Such notice should be given to
a patient as soon as practicable. The Court held that “[t]hose
steps, if taken, . . . should make patients more aware that their
physicians are public employees [of the State] entitled to notice
under the TCA.” 158 N.J. at 631. This case arose before the
Court's decision in Lowe. Although there were in hindsight
indications of the status of the institution, no notice similar
to that suggested by Lowe was given by any of plaintiff's
attending physicians or administrators of the institution
involved. Rather than remand this case to the Appellate
Division, we are satisfied that in the circumstances here,
circumstances that should not recur because of Lowe, the ninety
day notice provisions of the TCA should be tolled to allow the
claimant to seek compensation under the TCA. In future cases,
compliance with Lowe will bar similar such claims.
I
A.
Under the New Jersey Tort Claims Act, a party has ninety
days, from the time a claim accrues, to file a notice of claim.
N.J.S.A. 59:8-8. Section 59:8-8 provides that:
A claim relating to a cause of action for
death or for injury or damage to person or to
property shall be presented as provided in
this chapter not later than the ninetieth day
after accrual of the cause of action. After
the expiration of six months from the date
notice of claim is received, the claimant may
file suit in an appropriate court of law.
The claimant shall be forever barred from
recovering against a public entity or public
employee if ... [h]e [or she] failed to file
his [or her] claim with the public entity
within 90 days of accrual of the claim except
as otherwise provided in section 59:8-9....
[Id. at 59:8-8(a).]
The purpose of the ninety-day limit is to “compel a claimant to expose his [or her] intention and information early in the process in order to permit the public entity to undertake an investigation while witnesses are available and the facts are fresh.” O'Neill v. City of Newark, 304 N.J.Super. 543, 549 (App. Div. 1997) (citing Lutz v. Township of Gloucester, 153 N.J. Super. 461, 466 (App. Div. 1977)).
N.J.S.A. 59:8-9 allows the filing of a late notice of claim. Before 1994, a plaintiff proceeding under section 59:8-9 was required to show "sufficient reasons" for failing to file within the ninety-day period. A 1994 amendment provides:
A claimant who fails to file notice of his [or her] claim within 90 days as provided in section 59:8-8 of this act, may, in the discretion of a judge of the Superior Court, be permitted to file such notice at any time within one year after the accrual of his [or her] claim provided that the public entity or the public employee has not been substantially prejudiced thereby. Application to the court for permission to file a late notice of claim shall be made upon motion supported by affidavits based upon personal knowledge of the affiant showing sufficient reasons constituting extraordinary circumstances for his [or her] failure to file notice of claim within the period of time prescribed by section 59:8-8 of this act or to file a motion seeking leave to file a late notice of claim within a reasonable time thereafter; provided that in no event may any suit against a public entity or a public employee arising under this act be filed later than two years from the time of the accrual of the claim.
B.
As noted, in Lowe v. Zarghami, supra, the New Jersey
Supreme Court found that extraordinary circumstances existed for
a patient who was justifiably unaware that her physician was a
public employee. 158 N.J. at 629. The defendant, plaintiff's
treating physician, was a clinical professor employed by the
University of Medicine and Dentistry of New Jersey ("UMDNJ") but
who practiced medicine at the Robert Wood Johnson University
Hospital, a UMDNJ-affiliated private hospital. The Court found
that the apparent status of the defendant as a private physician
obscured his true status as a public employee. Ibid. Because
the plaintiff had no reason to suspect that her doctor was
associated with the UMDNJ and acted with diligence in pursuing
her medical malpractice claim, the Court allowed the late notice
of claim in light of the “extraordinary circumstances.” Id. at
629-30.See footnote 11
The question before this Court is whether the Ventolas, like
the plaintiffs in Lowe, have demonstrated “extraordinary
circumstances” for their failure to file a timely notice of
claim.
II
Samuel Ventola has been a resident of the Respondent New
Jersey Veteran's Memorial Home (VMH) at Paramus since February of
1993. At the time of these proceedings, Samuel was a sixty
seven-year-old veteran of the U.S. armed forces who was
physically disabled. Josephine, Samuel's wife, was sixty-eight
years old. During a visit to her husband on November 9, 1997,
Josephine observed that Samuel's foot was swollen. Samuel was
transferred to another facility for an examination. The
examination revealed that Samuel's leg was broken and badly
infected. The physician who treated Samuel rendered an opinion
that Samuel had suffered with an undiagnosed broken leg for
approximately four weeks. Gangrene had set in by the time of the
examination, and as a result, Samuel's leg was amputated below
the knee on November 13, 1997.
Josephine consulted an attorney in December of 1997.
Because the Ventolas understood the VMH to be a federal hospital,
and so advised their attorney, an administrative claim form was
filed with the United States Department of Veterans Affairs,
pursuant to the Federal Tort Claims Act,
28 U.S.C.A. 1346 (b), on
April 27, 1998, a prerequisite to suit established by federal
law. The Department of Veterans Affairs notified the attorney
on May 6, 1998, that the facility in question was operated by the
State of New Jersey.
On May 21, 1998, the Ventolas sought permission to file a
late notice of claim against the State pursuant to N.J.S.A. 59:8
9. As a threshold requirement, the statute requires a claimant
seeking leave to file a late notice of claim to establish
“sufficient reasons constituting extraordinary circumstances,”
excusing the failure to file the notice within ninety days of the
accrual of the cause of action. N.J.S.A. 59:8-9.See footnote 22
In support of the motion, Josephine certified that she
believed that the facility was owned and operated by the federal
government. Josephine stated that she believed this because the
facility is exclusively operated for veterans and because
Pentagon officials were regularly at the facility.
VMH sought to show that Josephine's belief was not in good
faith, and even if it was in good faith, it was unreasonable.
VMH presented various documents that were signed by Josephine and
Samuel at the time of Samuel's admission, approximately four
years prior to the injury. One was an authorization directed to
the United States Department of Veterans' Affairs permitting that
agency to release information concerning Samuel's “V.A. Benefits
to the N.J. Veterans Memorial Home at Paramus, N.J. Department of
Military & Veterans Affairs.” Each of the documents contained a
letterhead with the words, “State of New Jersey, Department of
Military and Veterans' Affairs, New Jersey Veterans' Memorial
Home at Paramus.” Each document stated at the bottom that, “New
Jersey is an Equal Opportunity Employer” and contained the Seal
of the State of New Jersey at the top. The application for
admission to the VMH stated that eligibility for admission is
made in accordance with the “New Jersey Administrative Code.”
VMH also presented checks written each month by Josephine payable
to “N.J. Veterans Home at Paramus.” Finally, the VMH “Resident's
Handbook” is subtitled “Rules and Regulations for New Jersey's
Veterans Memorial Homes,” shows a map of New Jersey on the cover,
and the location of the three veterans' homes in the State. The
Handbook indicates that it had been published by the “State of
New Jersey, Department of Military and Veterans Affairs, Division
of Veterans Healthcare Services.”
The trial court found that the Ventolas had failed to
demonstrate extraordinary circumstances. The court stated that,
at best, this case presented a situation in which the plaintiff
had a good faith, but mistaken belief that the institution was a
federal-run facility. The court found the Ventolas' belief to be
unreasonable because the Ventolas had been in possession of
information that the court found clearly indicated that the
facility is a state-run institution. The court also found that
no one had misled the Ventolas to believe that the facility was
run by the Federal government. The trial court denied the
Ventolas' motion.
In an unpublished opinion, the Appellate Division affirmed
the trial court's denial of the Ventolas' application to file a
late notice of claim. The court observed that the decision
whether to grant or deny an application to file a late notice of
claim is discretionary and that the trial court did not
misconstrue the facts or the applicable law. The panel agreed
that the Ventolas had failed to carry their burden of
demonstrating “extraordinary circumstances” that is the new, more
stringent standard required by N.J.S.A. 59:8-9. Hence, the
court affirmed the denial of the Ventolas' application.
We granted the Ventolas' petition for certification.
161 N.J. 335 (1999).
III
The United States Veterans' Health Administration is perhaps
“the most visible of all veterans' benefits and services.”
Veterans Health Administration, (visited Feb. 3, 2000)
<
http://www.va.gov/About VA/Orgs/vha/index.htm>.
The VA health
care system has grown from fifty-four hospitals in 1930 to
include 173 medical centers with one in each of the forty-eight
contiguous states, Puerto Rico and the District of Columbia; more
than 391 out-patient community operation clinics; 131 nursing
care units and thirty domiciliaries. Ibid. These facilities
provide a wide range of medical, surgical and rehabilitative
care. Ibid.
VA is currently associated with 105 medical schools, fifty
four dental schools, and more than 1,140 other schools across the
United States. Ibid. In fact, over half of all practicing
physicians in this country have had a portion of their
professional education in the VA health-care system. Ibid.
Approximately 100,000 health-care professionals train in VA
medical centers each year. Ibid. In New Jersey, there are
twelve facilities that provide health-care services to veterans
of the armed forces of the United States. All of them fall under
the Veterans' Health Administration. They are the following:
Outpatient Clinics
1. Brick: James J. Howard Outpatient Clinic
2. Elizabeth: Elizabeth Health Practice
3. Hackensack: Hackensack Health Practice
4. Trenton: Trenton Health Practice
5. Ventnor: Ventnor Clinic
6. Vineland: Vineland Clinic
Veterans Affairs Medical Centers
1. East Orange: East Orange Campus of the VA
New Jersey Health Care System
2. Lyons: Lyons Campus of the VA New Jersey
Health Care System
Veterans Centers
1. Jersey City: Jersey City Veterans Center
2. Newark: Newark Veterans Center
3. Trenton: Trenton Veterans Center
4. Ventnor: Ventnor Veterans Center
The State of New Jersey, Department of Military and
Veterans' Affairs, operates three veterans' homes, a veterans'
cemetery and 18 veterans' services offices. The veterans'
memorial home at Paramus is one of the three.
The relationship between the veterans' memorial homes and
the Veterans' Administration is close. For example, Fitzgerald's
Legislative Manual, 129-130 (Skinder-Strauss Associates, ed.,
1998), states of the Veterans' Memorial Home in Vineland:
“Residents [of the home] requiring more serious treatment are
referred to area Veteran Administration facilities and local
hospitals. The facility operates an out-patient Veterans'
Administration Clinic on Wednesday of each week.”
The notice provisions of the Tort Claims Act are well-suited
to a fall on the steps of a courthouse or on an obstruction on a
public sidewalk. See Blank v. City of Elizabeth,
162 N.J. 150
(1999) (holding that extraordinary circumstances were not
present, although claimant did not speak English, given that
inspection of area within reasonable time following the accident
would have led to prompt identification of the Elizabeth Water
Department as the owner of the offending utility valve on which
plaintiff had tripped). The problem lies in applying these
simple concepts in more complex areas, such as medical
malpractice or toxic tort causation. See Lamb v. Global Landfill
Reclaiming, 111 N.J. 134 (1988) (holding under prior law that
failure to file claim against public entities within the 90 days
of accrual of their claims due to difficulties in identifying
parties responsible for creating toxic conditions at landfill, in
assessing severity of injuries, and in assessing toxicity of
landfill, stated sufficient reasons for failure to comply with 90
day filing requirement). We find echoes of this case in our
decision in Feinberg v. DEP,
137 N.J. 126 (1994). In that case a
claimant had given timely notice to the wrong agency of State
government. We found in the “singular context” of that case that
notification to the Department of Environmental Protection was
notification to the water authority involved. Id. at 135.
Although the Ventolas were perhaps not as sophisticated as
one would wish in perceiving the differences between the agencies
of government that provide services to veterans, their
understandable confusion concerning the status of the veterans'
home operated by the State Department of Military and Veterans'
Affairs should not bar the presentation of their claim.
Two things are clear: (1) the dominant agency in providing
veterans' benefits is the United States Department of Veterans'
Affairs; (2) in every respect other than their appreciation of
the role of the New Jersey Department of Military and Veterans'
Affairs, the Ventolas were diligent in prosecution of their
claims. They did not sleep on their rights and their conduct did
not prejudice VMH in its defense of the case. We can be certain,
as in Lowe, that the circumstances of this incident are fully
documented in the records of VMH. And, as we understand the
case, and note without deciding, there may be no fault on the
part of VMH in that a preexisting condition of Samuel may have
masked the symptoms of the fracture. Finally, we observe that,
after Lowe, this should be the last such occasion to apply its
principles. Presumably, if State health-care providers wish to
rely on the notice provisions of the TCA, they will have made
their status clear to patients.
It is a paradox that health-care providers who have a duty
to monitor the health of their patients should complain that they
did not have notice that a patient's health had been harmed. In
light of the harsh consequences of noncompliance, perhaps the
Legislature will wish to revisit the issue of late notice under
the Tort Claims Act in this context of State medical services and
other more complex areas of causation. There is something
unsettling about encouraging physicians to tell their patients at
first treatment: “I am your doctor. I am an employee of the
State of New Jersey. If you have reason to believe that I have
treated you improperly, you have ninety days within which to make
a claim against me.”
The judgment of the Appellate Division is reversed. The
matter is remanded to the Law Division for further proceedings in
accordance with this opinion.
CHIEF JUSTICE PORITZ and JUSTICES O'HERN, GARIBALDI, STEIN,
COLEMAN and LONG join in this opinion. JUSTICE VERNIERO did not
participate.
NO. A-119 SEPTEMBER TERM 1998
ON APPEAL FROM
ON CERTIFICATION TO Superior Court, Appellate Division
SAMUEL A. VENTOLA and
JOSEPHINE VENTOLA, his wife,
Plaintiffs-Appellants,
v.
NEW JERSEY VETERAN'S MEMORIAL
HOME, Paramus, New Jersey,
Defendant-Respondent.
DECIDED June 5, 2000
Chief Justice Poritz PRESIDING
OPINION BY PER CURIAM
CONCURRING OPINION BY
DISSENTING OPINION BY
Footnote: 1 1Lowe v. Zarghami, supra, and Eagan v. Boyarsky,
158 N.J. 632 (1999), were decided on the same day. The two cases,
involving plaintiffs allegedly injured by UMDNJ clinical
professors practicing in private hospitals, presented different
issues. In Eagan, the issue was whether to allow a suit to be
filed beyond the one-year time period provided in N.J.S.A.
59:8-9. The Court found that "[i]n such unique circumstances ...
the Legislature intended the one-year ban ... to be tolled," and
thus, the plaintiff was entitled to file a late notice of claim.
158 N.J. at 642-43.
Footnote: 2 2 In addition to this, there must not be any undue prejudice
to the governmental entity, and the plaintiff must file the claim
within the two-year statute of limitations. Those requirements
are not at issue here.