D.D. v. University of Medicine and Dentistry of New Jersey, A-29/30 September Term 2011; opinion by Hoens, J.; dissent by LaVecchia, J.; decided March 12, 2013. On appeal from the Appellate Division. [Sat below: Judges Fuentes, Ashrafi and Newman in the Appellate Division; Judge Rivas in the Law Division.] DDS No. 36-1-9289 [61 pp.]

In this appeal, the court considers (1) whether the inattention of counsel retained by a plaintiff, or plaintiff’s medical condition, meet the statutory standard of extraordinary circumstances to excuse an untimely notice of tort claim under the New Jersey Tort Claims Act (TCA); and (2) whether a claim that was reported orally within the 90-day time frame can be found, through the application of the doctrine of substantial compliance, to have been timely filed.

During a meeting with staff members of defendants Rutgers University and the University of Medicine and Dentistry of New Jersey (UMDNJ), plaintiff D.D. disclosed private health information that she requested be kept confidential. On Nov. 24, 2009, D.D. discovered press releases issued by defendants that disclosed her private health information and sent a cease-and-desist letter to defendants. In December 2009, plaintiff, accompanied by counsel, met with representatives of defendants, accompanied by counsel. According to plaintiff, based on apologies and assurances made during the meeting, she believed the matter could be handled privately.

Although her attorney assured her that he would "take care of everything," he was thereafter unresponsive to her efforts to contact him and plaintiff retained new counsel in April 2010. On April 27, 2010, plaintiff’s new attorney filed a motion seeking leave to file a late notice of tort claim. Plaintiff’s motion was supported by certifications stating that defendants lulled her into inaction and failed to tell her that she needed to file a tort claim notice during their December 2009 meeting; her first attorney failed to explain the statutory requirement and was unresponsive; and the release of her personal information caused various health problems.

Using a totality of the circumstances approach, the trial court found "extraordinary circumstances" and permitted plaintiff to file a late notice of claim. The court considered plaintiff’s medical conditions, that plaintiff promptly sought legal advice, and her first attorney’s failures. The court also found that defendants were not prejudiced by the delay and that the purposes of the notice provision were satisfied when the parties met in December 2009.

In a divided decision, the Appellate Division affirmed. This appeal was taken as of right.

Held: Neither attorney inattention nor incompetence constitutes an extraordinary circumstance sufficient to excuse failure to comply with the 90-day filing deadline under the TCA. Plaintiff’s medical proofs were insufficient to meet the extraordinary-circumstances standard. The doctrine of substantial compliance cannot serve to relieve a claimant of the TCA’s written-notice requirement.

Although the TCA originally required a showing of "sufficient reasons" to file a late notice, the Legislature amended the statute in 1994 to require a demonstration of "extraordinary circumstances," a more exacting standard. Plaintiff’s proofs in support of extraordinary circumstances relate to her medical conditions and her first attorney’s shortcomings.

Appellate Division decisions have concluded that medical conditions meet the extraordinary-circumstances standard if they are severe or debilitating, impacting the claimant’s ability to pursue redress and attend to the filing of a claim. Applying these precedents to the record, plaintiff’s medical state did not meet the statutory threshold of extraordinary circumstances.

In Beauchamp v. Amedio, the court addressed the implications of an attorney’s misadvise about filing a tort claims notice. The plaintiff’s attorney advised her not to file a tort claims notice because her doctor could not yet determine whether her injuries would be permanent. After the 90-day time period had expired, plaintiff learned that her injuries were permanent. The court permitted her to file a late tort claims notice, explaining that the Appellate Division’s suggestion in Ohlweiler v. Twp. of Chatham, that the cause of action did not accrue until the injuries were found to be permanent and serious, misled the plaintiff’s attorney into believing that an earlier filing of a tort claims notice would not be permitted. The court found that general confusion about the law created sufficient reason for the attorney’s inaccurate advice.

Although plaintiff points to the failures of her first attorney, the court finds no basis to read into the statute any requirement that plaintiff be advised of the technical requirements for pursuing a claim. An attorney’s inattention to a file, or even ignorance of the law, does not equate with extraordinary circumstances for tort claims purposes. Beauchamp was not based on the attorney’s shortcoming, but rather on a reasonable, albeit mistaken, perception of the TCA’s requirements derived from a published Appellate Division opinion.

The court’s review of the statutory language establishing the essential requirements of a valid notice and its consideration of the underlying purposes that are served by the notice compel the conclusion that there is no basis to extend the substantial-compliance theory to relieve plaintiffs of their obligation to file a written notice.

The judgment of the Appellate Division is reversed and the matter is remanded to the Law Division for entry of judgment consistent with this opinion.

Justice LaVecchia, dissenting, joined by Justice Albin, expresses the view that the majority’s holding is too restrictive, undervalues the totality-of-the-circumstances analysis, and misapplies the abuse-of-discretion standard of review.

Chief Justice Rabner and Justice Patterson join in Justice Hoens‘s opinion. Justice LaVecchia filed a separate, dissenting opinion in which Justice Albin joins.

For appellants: Rutgers, The State University of New Jersey — Nicholas F. Pellitta (Norris McLaughlin & Marcus; Pellitta, Edward G. Sponzilli and Bradford W. Muller on the briefs); University of Medicine and Dentistry of New Jersey — Stuart M. Feinblatt, Assistant Attorney General (Jeffrey S. Chiesa, Attorney General; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Peter D. Wint, Assistant Attorney General, on the briefs). For respondent — Susan Schleck Kleiner (Kleiner and Erin P. Drew on the brief). For New Jersey Association for Justice — E. Drew Britcher (Britcher, Leone & Roth; Britcher and Jessica E. Choper on the brief).