                   NOT FOR PUBLICATION WITHOUT THE
                  APPROVAL OF THE APPELLATE DIVISION

                                     SUPERIOR COURT OF NEW JERSEY
                                     APPELLATE DIVISION
                                     DOCKET NO. A-2698-14T1

LISA R. WORTHY,

      Plaintiff-Appellant,              APPROVED FOR PUBLICATION

v.                                           June 22, 2016

                                          APPELLATE DIVISION
KENNEDY HEALTH SYSTEM; KENNEDY
MEMORIAL HOSPITAL-CHERRY HILL;
UNIVERSITY HEADACHE CENTER;
MILLICENT KING-CHANNELL, D.O.;
ROBERT F. HAHN, D.O.; COURTNEY
BAKER, D.O.; SEAN HUBBARD, D.O.;
ANTHONY BABE, D.O.; STEPHANIE
MARANO, R.N.; KRISTINE M. BROWN,
R.N., and JOAN MAZZARELLA, R.N.,

      Defendants,

and

JOSEPH P. CURRERI,1 D.O. and
THOMAS WETJEN, D.O.,

     Defendants-Respondents.
_______________________________

          Submitted March 14, 2016 - Decided June 22, 2016

          Before Judges Lihotz, Nugent and Higbee.

          On appeal from Superior Court of New Jersey,
          Law Division, Camden County, Docket No.
          L-4906-08.




1
     The caption mistakenly listed defendant's               surname   as
Currieri, which we have corrected in our opinion.
           Messa & Associates, P.C., attorneys for
           appellant (Joseph L. Messa, Jr., and A.
           Christine Giordano, on the briefs).

           Ronan, Tuzzio & Giannone, P.C., attorneys
           for respondent Joseph P. Curreri, D.O.
           (James M. Ronan, Jr., of counsel and on the
           briefs; Anthony M. Tracy, on the briefs).

           Blumberg   &  Wolk,   LLC,  attorneys   for
           respondent Thomas Wetjen, D.O. (Christopher
           M. Wolk and Jeffrey P. Catalano, on the
           brief).

    The opinion of the court was delivered by

LIHOTZ, P.J.A.D.

    Plaintiff     Lisa    R.   Worthy       filed   this   medical    negligence

matter, alleging various defendants failed to properly diagnose

and treat her medical condition.             On appeal, we examine whether

plaintiff met the requirements of Rule 4:26-4, the fictitious

name rule, to save her claims against one defendant, which the

trial judge dismissed as out of time.                  We also review proof

supporting      causation      regarding        another      defendant,          who

successfully    secured     dismissal,       arguing   despite     his     alleged

failure to diagnose and treat plaintiff's condition she would

not have experienced a better outcome.

    More      specifically,     plaintiff       appeals     from     two    orders

granting summary judgment dismissal in favor of two physician-

defendants.     The first is a June 2, 2011 order in favor of

defendant Thomas Wetjen, D.O., finding all claims barred by the




                                        2                                  A-2698-14T1
statute of limitations.                The second is an April 11, 2014 order,

concluding     plaintiff          failed       to     present       evidence       supporting

proximate cause regarding the conduct of defendant Joseph P.

Curreri, D.O.          On the date set to commence trial against the

remaining      defendants,             the     parties           resolved    all      claims.

Plaintiff      also        appeals      from        the    separate      motions     denying

reconsideration of the summary judgment orders.                              Following our

review of the parties' arguments, in light of the record and

applicable law, we reverse.

                                               I.

      This     matter        arises        from      medical       treatment       and   care

plaintiff received in October 2006.                        We limit our recitation of

facts and procedural history to the relevant issues presented on

appeal.

      Plaintiff,       who       had   a     history      of     migraine    headaches     and

cervical disc disease, sought treatment from Robert Hahn, D.O.

and defendant Millicent King-Channell, D.O. from September 17 to

October   6,    2006.            Despite      various       treatments,      her    ailments

persisted.        On       the    morning       of    October       6,   2006,     plaintiff

initially was treated by Dr. King-Channell, as a follow-up to

her   September       29    appointment         and       then    referred    to   defendant

Robert F. Hahn, D.O. for pain management and neck manipulation.




                                                3                                    A-2698-14T1
The   same     day    plaintiff    saw    Dr.    Hahn,   who   administered        an

injection and performed cervical spine manipulation therapy.

      Following       treatment,   plaintiff      took   Xanax      and   Flexeril,

which had been previously prescribed for her headaches, and went

to work.       After work, plaintiff and friends went to dinner,

during which she consumed two beers and two glasses of wine.                       In

the restaurant, plaintiff suffered "a syncopal episode," became

semi-conscious, developed slurred speech, an abnormal gait and

bilateral weakness.           Emergency Medical Services were called and

at 8:40 p.m., plaintiff was taken to Kennedy Memorial Hospital.

      Upon arrival, an intake nurse performed an assessment and

recorded plaintiff's report of a stabbing headache with nausea

and vomiting.         Plaintiff was coherent when answering questions,

her eyes were open, and she obeyed commands; however, the nurse

recorded symptoms of generalized weaknesses throughout her body,

which she attributed to the use of alcohol and Xanax.

      At   9:16      p.m.,   plaintiff     was   evaluated     by   an    emergency

medicine physician.           The physician was ultimately identified in

2010,   more    than    two    years     after   he   provided      treatment,     as

defendant Dr. Wetjen.

      Dr. Wetjen's notes stated plaintiff arrived at the hospital

by emergency medical services and was experiencing dizziness,

nausea, and vomiting after consuming two glasses of wine, two




                                          4                                A-2698-14T1
beers,   and    taking      Xanax     and    Flexeril.           Dr.    Wetjen   observed

plaintiff's pupils were sluggish as she followed commands and

answered questions, but he concluded plaintiff's neurological

examination     was    otherwise       unremarkable.              Dr.    Wetjen    opined

plaintiff suffered an accidental polydrug overdose.

    At      12:40      a.m.,    on     October        7,     2006,       plaintiff      was

administered anti-nausea medication and a CT scan was performed,

which proved negative.              At 6:30 a.m., the intake nurse noted

plaintiff      had    an    unstable        gait    and     was    having    difficulty

walking.       At    11:00     a.m.,    plaintiff          was    transferred     to    the

telemetry unit.            Upon arrival, Courtney Baker, D.O., a first-

year Kennedy staff resident, conducted a physical examination

and prepared a treatment plan for plaintiff, who was awake but

"nonresponsive."        Dr. Baker relied on the emergency room records

and family members' statements to formulate plaintiff's medical

history.     She diagnosed plaintiff with accidental polysubstance

overdose.

    Dr. Curreri first became involved when contacted by Dr.

Baker, more than fifteen hours after plaintiff arrived at the

emergency      room.          After     Dr.        Baker     discussed      plaintiff's

condition, Dr. Curreri accepted plaintiff as his patient.                                He

assumed responsibility for her at "around" noon on October 7,

2006.    He assumed Dr. Baker obtained and reviewed the emergency




                                             5                                    A-2698-14T1
room chart, which he did not review until noon on October 8,

2006.        Dr.    Curreri      concluded       plaintiff's          condition         was

consistent    with      polysubstance     overdose.         He       also      ordered    a

neurological       consultation,     which       was      not    directed         to     be

performed immediately, and prescribed aspirin.

    Twenty-four hours later, Dr. Curreri examined plaintiff.

At that time, his diagnosis included: aspirational bronchitis,

hypophosphatemia, hypokalemia and a polysubstance overdose.                              He

noted plaintiff's speech was incoherent, she was letheragic, and

her mental status remained unchanged.                  Dr. Curreri asked the

neurologist to examine plaintiff that day, which occurred.

    Following       a   neurological      consultation          by   defendant         Sean

Hubbard, D.O., plaintiff was transferred to Hahnemann University

Hospital, where an MRA and MRI revealed a narrowing of the right

vertebral artery, bilateral subacute thalamic infarcts, and left

cerebellar subacute infarct of the vertebral artery.                           In short,

plaintiff suffered a stroke.            A cerebral angiography revealed a

non-occlusive dissection of the right vertebral artery at C1-C2,

secondary to mild irregularity.                After receiving treatment at

various facilities, plaintiff was discharged home on November 4,

2006.

    On      September      26,    2008,       plaintiff     filed          a   complaint

asserting      medical        negligence,         alleging           the       negligent




                                          6                                      A-2698-14T1
manipulation of her neck caused vertebral artery dissection, a

tear in an artery in the neck that supplies blood to the brain,

which led to a stroke that was improperly diagnosed and treated.

She named as defendants not only Drs. Hahn and King-Channell,

but   also     Kennedy     Health        System         (Kennedy),        Kennedy    Memorial

Hospital – Cherry Hill, Joseph P. Curreri, D.O., along with

several other doctors and nurses involved with plaintiff's care

whose specific identities were not determined because plaintiff

was   unable    to    decipher      their          signatures        on    certain    medical

reports.

      The    complaint,      in    place       of       a    typed   name,    placed    these

defendants' signatures in the caption along with a fictitious

party reference.           As to each unknown professional, his or her

scanned undecipherable signature along with the identification

of his or her title, i.e., doctor or nurse.                          Further, throughout

the   body     of    the   complaint        the         signature     is     included     when

reciting factual underpinnings of alleged negligence for which

plaintiff asserted his or her liability.

      Kennedy       accepted      service          on       behalf   of    Kennedy     Health

System, Kennedy Memorial Hospital, and Stephanie Marano, RN, but

declined to accepted service on behalf of the remaining nine

defendants.         Returning the remaining summonses, Kennedy advised

the   named    physicians         must    be       served      through      their    offices.




                                               7                                     A-2698-14T1
Specifically       as     to   the      unidentified       defendants,    Kennedy

identified    one   intern     and   stated       "[t]he   remaining    names   and

signatures were unidentifiable."              Plaintiff's counsel requested

Kennedy's legal liaison identify "the individuals who authored

the medical records contained in [plaintiff's] chart."                    However,

she was unable to do so.

    On November 18, 2008, plaintiff wrote to Kennedy's legal

liaison, stating:

         You have refused to accept service of the
         [c]omplaints for several of the defendants.
         These   defendants    are     identified   with
         particularity in the [c]omplaint and are
         clearly agents, servants and/or employees of
         Kennedy Health System.        The identity of
         these individuals is information that is in
         the sole possession, custody and control of
         Kennedy Health System.          Therefore, any
         attempts by you to avoid service on these
         individuals is improper.       As such, kindly
         accept service on behalf of your agents,
         servants,   employees     and    identify   the
         individuals who authored the medical records
         contained in [plaintiff]'s chart.

    On November 16, 2009, plaintiff served twelve supplemental

interrogatories directing Kennedy and the other defendants to

provide the identity and job title of each of the six defendants

designated by their signature in the complaint, which again was

reproduced    in    the   discovery      request.      When    no    response   was

forthcoming    by       January   19,     2010,     additional      correspondence

renewed the request and sought voluntary compliance in an effort




                                          8                               A-2698-14T1
to avoid motion practice.            Kennedy "informal[ly]" responded on

February 17, 2010, stating "despite good faith efforts" it could

not identify three of the treatment providers, but noted their

job titles.         Two signatures were identified and no information

was provided regarding the remaining signature.                   Plaintiff moved

to strike Kennedy's answer and defenses for failure to provide

discovery, returnable on March 5, 2010.

     On March 3, 2010, Kennedy sent a second "informal response"

to plaintiff's supplemental interrogatories.                    It addressed the

one signature not mentioned in its prior response, stating the

document on which the signature appeared was not generated by

Kennedy,      but   was   believed   to       be   from   a   provider   rendering

treatment prior to plaintiff's admission to Kennedy.                       Kennedy

provided the identifications of Dr. Wetjen, a resident physician

and three nurses.          Within a week, plaintiff sought leave to

amend   the    complaint,    specifically          substituting   the    names   and

titles for the scanned signatures of defendants as revealed by

Kennedy, which was granted.          Plaintiff also moved to restore the

now identified defendants to the active trial status, which was

also granted.2




2
     The record also references plaintiff "had to seek court
intervention so that a witness could be produced [by Kennedy] to
identify signatures of the remaining defendants in the case."
                                                     (continued)


                                          9                                A-2698-14T1
      Dr. Wetjen answered the complaint on November 24, 2010,

and, thereafter, moved for summary judgment, arguing plaintiff's

claim was barred by the statute of limitations and the improper

use   of   the    fictitious      party    pleading        rule    did    not   save   her

complaint from being untimely filed.                   After oral argument, the

trial judge granted Dr. Wetjen's motion on June 2, 2011.

      Focusing      on    the     absence       of   efforts       to     identify     the

defendants prior to October 6, 2008, the trial judge rejected

plaintiff's contention the inclusion of defendants' signatures

sufficiently preserved her claims, making them timely.                          Although

finding no prejudice to Dr. Wetjen, the judge noted plaintiff

exercised no due diligence to ascertain Dr. Wetjen's identity

prior to initiating her legal action and, therefore, he rejected

reliance on the fictitious name procedure.                        Finally, the judge

was unpersuaded by plaintiff's alternative argument to apply the

discovery        rule,    delaying      commencement         of     the    statute      of

limitations       to     August    6,     2008,      the    date    plaintiff        first

consulted counsel, finding the assertion unsupported.




(continued)
The designated witness, deposed on May 14, 2010, identified Dr.
Wetjen's signature. These pleadings are not in the record.



                                           10                                    A-2698-14T1
       The June 2, 2011 order dismissed the complaint as to Dr.

Wetjen, with prejudice.          Reconsideration was denied.3

       On March 13, 2014, Dr. Curreri moved for summary judgment.

He   argued    plaintiff     failed      to   establish     his    conduct     was    a

proximate     cause    of   or    a   substantial       contributing     factor      to

plaintiff's injuries.           Dr. Curreri maintained "plaintiff had not

submitted sufficient expert proofs to establish that there was

treatment available as of . . . noon on October 7, 2006, (the

time   when    Dr.    Curreri    first   became    involved       in   the   care    of

plaintiff), that could have improved or otherwise changed the

ultimate outcome in some material respect."                 Because plaintiff's

expert identified noon on October 7, 2006 as a critical time

period   for    necessary       treatment     to   be   administered,        and    Dr.

Curreri actually saw plaintiff after that time on October 7,

2006, he argued had he administered any treatments as asserted

by plaintiff, the final outcome would not have changed.

3
     The orders entered on July 22, 2011 cause some confusion.
First, a July 22 order dismissed the complaint against Dr.
Wetjen with prejudice. A second order denied plaintiff's motion
for reconsideration of the summary judgment dismissal.    A July
28, 2011 order prepared by the court simply states, "The [o]rder
signed on July 22, 2011 in regard [to] the above captioned
matter referencing Thomas Wetjen, DO is hereby vacated."
Finally an order, which has an illegible date and no file stamp,
presumably entered on August 5, 2011, denied reconsideration of
the summary judgment dismissal of Dr. Wetjen.    Notwithstanding
the confusion created by these orders, plaintiff does not
dispute summary judgment was granted in favor of Dr. Wetjen, who
was dismissed from the case.



                                         11                                  A-2698-14T1
    In   response,    plaintiff     refuted   the     factual   assertions,

noting testimony from Dr. Baker stated she called Dr. Curreri

after plaintiff's admission on the evening of October 6, 2006 to

discuss a treatment plan, which he approved.                Dr. Baker again

consulted with Dr. Curreri by telephone when she resumed her

shift at 7 a.m. on October 7, 2006.           Dr. Curreri suggests the

call was not made until noon on that date.

    The trial judge concluded Dr. Curreri had no contact with

plaintiff until sometime after noon on October 7, 2006, stating:

               I don't see facts in dispute on that
          point, and that point being when Dr. Curreri
          came into contact with the patient. I find
          based on what is . . . in the evidence from
          the testimony of the parties, [Dr. Baker],
          as well as Dr. Curreri and the notes, his
          contact and his laying out a plan for the
          care of . . . [plaintiff] . . . that all
          attaches at . . . noon . . . timeframe on
          the 7th.

               And it's clear that the testimony from
          [plaintiff's expert] is that the potential
          options with respect to a patient of this
          nature at that point in time would have been
          the heparin treatment. . . .    And he cannot
          give an opinion that there would have been a
          better outcome had[,] at that point in
          time[,]    Dr.   Curreri   ordered    heparin
          treatment.   And without that in the record,
          I can't hold the doctor in. So I'm going to
          grant summary judgment as to Dr. Curreri.

Reconsideration was denied.

    Plaintiff   appealed     from   the    June   2   and   August    5,   2011

orders   dismissing    all   claims       against     Dr.   Wetjen.         She



                                    12                                A-2698-14T1
subsequently amended the notice of appeal to include the April

11 and May 23, 2014 orders dismissing all claims against Dr.

Curreri.

                                       II.

      We     "review[]   an    order      granting       summary    judgment     in

accordance with the same standard as the motion judge."                     Bhagat

v. Bhagat, 217 N.J. 22, 38 (2014).                See also Townsend v. Pierre,

221   N.J.    36,   59   (2015).       We     "must      review    the   competent

evidential     materials      submitted      by    the   parties    to   identify

whether there are genuine issues of material fact and, if not,

whether the moving party is entitled to summary judgment as a

matter of law."      Bhagat, supra, 217 N.J. at 38.                 See Brill v.

Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995); R.

4:46-2(c).

      Further, all facts are viewed in a light most favorable to

the non-moving party, "keeping in mind '[a]n issue of fact is

genuine only if, considering the burden of persuasion at trial,

the evidence submitted by the parties on the motion . . . would

require submission of the issue to the trier of fact.'"                    Schiavo

v. Marina Dist. Dev. Co., 442 N.J. Super. 346, 366 (App. Div.

2015) (alteration in original) (quoting R. 4:46-2(c)), certif.

denied, 224 N.J. 124 (2016).




                                       13                                 A-2698-14T1
       A motion for summary judgment will not be defeated by bare

conclusions     lacking   factual    support,         Petersen    v.    Twp.     of

Raritan, 418 N.J. Super. 125, 132 (App. Div. 2011), self-serving

statements, Heyert v. Taddese, 431 N.J. Super. 388, 413-14 (App.

Div.   2013),   or   disputed   facts     "of    an   insubstantial     nature."

Pressler & Verniero, Current N.J. Court Rules, cmt. 2.1 on R.

4:46-2 (2016).       "It is evidence that must be relied upon to

establish   a   genuine   issue     of    fact.       'Competent       opposition

requires competent evidential material beyond mere speculation

and fanciful arguments.'"         Cortez v. Gindhart, 435 N.J. Super.

589, 605 (App. Div. 2014) (quoting Hoffman v. Asseenontv.Com,

Inc., 404 N.J. Super. 415, 425-26 (App. Div. 2009)), certif.

denied, 220 N.J. 269 (2015).

       "The practical effect of this rule is that neither the

motion court nor an appellate court can ignore the elements of

the cause of action or the evidential standard governing the

cause of action."      Bhagat, supra, 217 N.J. at 38.               It is only

"when the evidence 'is so one-sided that one party must prevail

as a matter of law,' the trial court should not hesitate to

grant summary     judgment."      Brill,        supra,   142     N.J.    at    540

(citation omitted) (quoting Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 252, 106 S. Ct. 2505, 2512, 91 L. Ed. 2d 202, 214

(1986)).




                                     14                                  A-2698-14T1
      Once we agree no genuinely disputed fact exists, we "then

decide whether the trial court's ruling on the law was correct."

W.J.A. v. D.A., 210 N.J. 229, 238 (2012) (quoting Henry v. N.J.

Dept.    of    Human     Servs.,   204     N.J.    320,   330   (2010)).      Such     a

determination is "not entitled to any special deference," and is

subject to de novo review.            Manalapan Realty, L.P. v. Twp. Comm.

of Manalapan, 140 N.J. 366, 378 (1995).

                                           III.

      We      separately    review        plaintiff's     challenge     to   the    two

summary judgment orders.

                                            A.

      As to Dr. Wetjen, plaintiff initially argues her complaint

was timely filed under the discovery rule.                           She maintains a

material factual dispute exists whether the two-year statute of

limitations for medical negligence cases, N.J.S.A. 2A:14-2(a),

was   tolled      because   she    did     not    discover     the   right   to   legal

recourse until she spoke to counsel on August 6, 2008.                               We

disagree.

      "Under      special     circumstances         and    in    the    interest     of

justice, [New Jersey has] adopted the discovery rule to postpone

the accrual of a cause of action when a plaintiff does not and

cannot     know    the    facts    that    constitute     an    actionable    claim."

Grunwald v. Bronkesh, 131 N.J. 483, 492 (1993); see also Baird




                                            15                                A-2698-14T1
v. Am. Med. Optics, 155 N.J. 54, 65 (1998) ("The discovery rule

delays the accrual of a cause of action until 'the injured party

discovers,         or   by    an    exercise     of    reasonable      diligence      and

intelligence should have discovered that he may have a basis for

an actionable claim.'" (quoting Lopez v. Swyer, 62 N.J. 267, 272

(1973))).

       "The discovery rule is a rule of equity that ameliorates

'the often harsh and unjust results [that] flow from a rigid and

automatic adherence to a strict rule of law.'"                      Grunwald, supra,

131 N.J. at 492 (alteration in original) (quoting Lopez, supra,

62    N.J.    at    273-74).         "The    question      is    whether     the   facts

presented would alert a reasonable person exercising ordinary

diligence     that      he    or    she   was    injured   due    to   the    fault   of

another."      Martinez v. Cooper Hosp.-Univ. Med. Ctr., 163 N.J.

45, 52 (2000).           A plaintiff bears the burden of proving he or

she     was   aware      of    an    injury      and   "that     the   injury      [was]

attributable to the fault of another."                     Id. at 53.        However, a

plaintiff who merely lacks "knowledge of a specific basis for

legal liability or a provable cause of action" may not receive

the benefit of the discovery rule.                 Id. at 52.

       Certainly plaintiff knew she suffered a stroke in October

2006.     Nothing suggests she was misled regarding her diagnosis

or the nature of her care.                Lynch v. Rubacky, 85 N.J. 65, 67-69,




                                            16                                 A-2698-14T1
77    (1981).           In    fact,    her    certification          only       reflects       she

discovered she could pursue legal redress after she met with her

attorney, not that she was unaware of her injury.                               Szczuvelek v.

Harborside Healthcare Woods Edge, 182 N.J. 275, 280, 283 (2005).

"To accept the premise that the statute did not begin to run

until   she       was    advised       by    her    attorney    .    .     .    would     be    to

disregard     the        basic    policy      of    repose,     which          underlies       the

statute of limitations, thus extending the threat of litigation

indefinitely."               Rankin v. Sowinski, 119 N.J. Super. 393, 401

(App. Div. 1972).              As a result, we conclude the discovery rule

does not apply.

       However,         we     find    compelling       plaintiff's             argument       she

properly complied with the fictitious pleading rule, allowing

the cause of action against Dr. Wetjen to relate back to the

date her complaint was filed, which was within two years of her

injury.

       Pursuant to Rule 4:26-4, "if the defendant's true name is

unknown      to    the        plaintiff,      process     may       issue        against       the

defendant under a fictitious name, stating it to be fictitious

and     adding          an      appropriate         description          sufficient            for

identification."              "The fictitious defendant rule was promulgated

to address the situation in which a plaintiff is aware of a

cause   of    action         against    a    defendant    but       does       not   know   that




                                               17                                       A-2698-14T1
defendant's identity."              Gallagher v. Burdette-Tomlin Med. Hosp.,

318 N.J. Super. 485, 492 (App. Div. 1999), aff'd, 163 N.J. 38

(2000).       The rule's effect is to "render timely the complaint

filed by a diligent plaintiff, who is aware of a cause of action

against       an    identified           defendant      but    does     not        know    the

defendant's name."            Greczyn v. Colgate-Palmolive, 183 N.J. 5, 11

(2005).        When         the    plaintiff      discovers      the     party's          name,

"amendment of the complaint may relate back [to] allow an action

otherwise time-barred."              Brown v. Kennedy Mem'l Hosp.-Univ. Med.

Ctr., 312 N.J. Super. 579, 587 (App. Div.), certif. denied, 156

N.J.    426    (1998).            Accordingly,     if    a    defendant       is    properly

identified         by   a    fictitious      name       before   expiration          of     the

applicable limitations period, an amended complaint substituting

a fictitiously named defendant's true name will relate back to

the date of filing of the original complaint.                          Viviano v. CBS,

Inc.,   101    N.J.     538,       548   (1986);     Farrell     v.    Votator      Div.     of

Chemetron Corp., 62 N.J. 111, 120-23 (1973); see also R. 4:9-3

(allowing an amended complaint to relate back to the initial

complaint).

       The trial judge heavily relied on the principle that "[t]he

identification of a defendant by a fictitious name . . . may be

used only if a defendant's true name cannot be ascertained by

the exercise of due diligence prior to filing the complaint."




                                             18                                      A-2698-14T1
Claypotch v. Heller, Inc., 360 N.J. Super. 472, 479-80 (App.

Div. 2003) (citing Mears v. Sandoz Pharms. Inc., 300 N.J. Super.

622, 631-33 (App. Div. 1997)).                This requires a plaintiff to

proceed    with      due   diligence   in     ascertaining    the   fictitiously

identified defendant's true name.                 Farrell, supra, 62 N.J. at

120; Johnston v. Muhlenberg Reg'l Med. Ctr., 326 N.J. Super.

203, 208 (App. Div. 1999).

      Here,     the    judge   had     difficulty     accepting     the   use    of

signatures to identify the unknown professionals.                   He correctly

noted no specific authority allowed a party to paste a signature

in lieu of naming a party in the caption.                    Had plaintiff done

nothing more, we might easily reject such a practice.                     However,

fundamental fairness demands consideration of the totality of

the   facts    and    circumstances      before    the   ultimate    sanction    of

dismissal with prejudice issues.               Following such a review, we

conclude      these    facts   support      counsel   undertook     the   required

diligent inquiry.

      The complaint did much more than simply include the pasted

signatures in the caption.             Plaintiff utilized the information

available from Kennedy's records and identified not only the

professional's title, but also recited the factual basis for

liability.        She further included the more traditionally found

John and Jane Doe references and a separate count for those




                                         19                               A-2698-14T1
defendants.       These efforts were designed to relate as much known

information        as     possible       to       specify        the       unidentified

professionals.

       Regarding diligence, while Dr. Wetjen was not identified

before the complaint was filed, this was not because counsel was

dilatory.       The facts show plaintiff first understood she had a

right to file an action when she met with counsel on August 6,

2008, very near the expiration of the statute of limitations.

Counsel     proceeded      to   gather        Kennedy's     records,         obtain       an

affidavit of merit and file a complaint in less than two months.

From    that    point,    Kennedy     was     repeatedly        asked      formally     and

informally to identify the "agents, servants, [or] employees"

who signed its charts.          Letters, discovery requests and motions

to produce a witness to identify the signatures were issued.

For the most part, Kennedy ignored the requests, despite the

fact it exclusively controlled the pertinent information, at all

times.    Kennedy did not release identification information until

the return date of plaintiff's motion to strike Kennedy's answer

and    defenses    approached.         Only       then    did    Kennedy      issue       an

"informal response" to plaintiff's supplemental interrogatories.

Had Kennedy responded when plaintiff first asked, Dr. Wetjen

would    have   been     identified    and       served   within       a   week   of    the

original filing.




                                            20                                    A-2698-14T1
       Unlike      the        authority     relied      upon     by     Dr.    Wetjen,       see

Johnston, 326 N.J. Super. at 205 (describing how the plaintiff

did not seek to add the newly identified party after waiting

almost a year once identified), here, plaintiff moved to amend

her complaint within days of learning Dr. Wetjen's identity.

       Nor     can       we    conclude         plaintiff      failed    to        investigate

potential         claims       against      a     physician     whose      name      appeared

multiple times in her medical chart.                       See Matynska v. Fried, 175

N.J. 51, 54 (2002) (denying application of equitable tolling

principles when information was readily available).                                   In this

matter, the names were not easily obtained from the medical

records      and     Kennedy     was     not     forthcoming      in    providing       actual

identifications.

       Perhaps most importantly, Dr. Wetjen was not prejudiced by

the delay in formal identification as a potentially liable party

and the ultimate service of an amended complaint.                                     Farrell,

supra,    62      N.J.    at    122-23.          Nothing    impaired     his       ability   to

defend the action.             Mears, supra, 300 N.J. Super. at 631.

       "Justice impels strongly towards affording the plaintiff[]

[her] day in court on the merits" of her claims.                                     Farrell,

supra, 62 N.J. at 122; see also Fede v. Clara Maass Hosp., 221

N.J.   Super.        329,      339   (Law       Div.   1987)    (stating       a    motion    to

dismiss      on    statute-of-limitations              grounds     in    the       context   of




                                                 21                                   A-2698-14T1
fictitious      party   practice      is   governed    by    "the   interests      of

justice.").

      Following     our   review,     we    conclude      plaintiff     engaged     in

diligent efforts, which were continually thwarted by Kennedy.

For more than fifteen months, Kennedy declined to provide the

requested identification of the doctors and nurses who attended

to plaintiff in its facility, as confirmed by their signatures

on charts, records and reports.                 The delay here falls squarely

on Kennedy's gradual response, which fairness dictates shall not

be shouldered by plaintiff.            The motion judge's findings to the

contrary are not supported.            The decision to dismiss Dr. Wetjen

is   reversed     and   the   June    2    and   August     5,   2011   orders    are

vacated.

                                           B.

      We   turn   to    the   order    granting     summary      judgment   to    Dr.

Curreri.     Among the claims stated in her complaint, plaintiff

alleges Dr. Curreri failed to diagnose, order diagnostic testing

and treat her stroke, misdiagnosed her condition, and failed to

alter treatment despite her failure to improve for more than

seventeen    hours.       The   motion      judge   found    plaintiff's     expert

"c[ould] not give an opinion that there would have been a better

outcome had at that point in time Dr. Curreri ordered heparin

treatment."       Plaintiff argues this was an abuse of discretion




                                           22                               A-2698-14T1
because     materially         disputed     facts     were   presented         to   support

causation that would defeat summary judgment.

         "A medical malpractice case is a kind of tort action in

which the traditional negligence elements are refined to reflect

the professional setting of a physician-patient relationship."

Verdicchio v. Ricca, 179 N.J. 1, 23 (2004).                             To establish a

prima     facie    case       for   medical    negligence,         "a   plaintiff       must

present      expert       testimony        establishing       (1)       the    applicable

standard of care; (2) a deviation from that standard of care;

and (3) that the deviation proximately caused the injury[.]"

Koseoglu     v.    Wry,       431   N.J.   Super.     140,   156    (App.      Div.    2013)

(alteration in original) (quoting Gardner v. Pawliw, 150 N.J.

359, 375 (1997)), certif. denied, 216 N.J. 4 (2013).

         Under certain circumstances, a plaintiff "must prove that,

as   a    result   of     a    defendant's negligence,         she      experienced        an

increased     risk      of     harm    from    that    condition,        and    that      the

increased risk of harm was a substantial factor in causing the

injury ultimately sustained."                 Gardner, supra, 150 N.J. at 375

(citing Anderson v. Picciotti, 144 N.J. 195, 210 (1996)).

             The substantial factor test allows the
             plaintiff to submit to the jury not whether
             "but for" defendant's negligence the injury
             would not have occurred[,] but "whether the
             defendant's deviation from standard medical
             practice increased a patient's risk of harm
             or diminished a patient's chance of survival
             and whether such increased risk was a



                                              23                                    A-2698-14T1
          substantial factor in producing the ultimate
          harm."   [Gardner, supra, 150 N.J. at 376].
          Once the plaintiff demonstrates that the
          defendant's negligence actually increased
          the risk of an injury that later occurs,
          that conduct is deemed to be a cause "in
          fact" of the injury and the jury must then
          determine the proximate cause question:
          whether the increased risk was a substantial
          factor in bringing about the harm that
          occurred.

          [Verdicchio, supra, 179 N.J. at 24.]

    Plaintiff maintains her symptoms evident upon admission,

including her eyes gazing to the right, suggested a need for a

neurological consultation.       However, Dr. Curreri did not examine

plaintiff for twenty-four hours after she was admitted to his

service, and the neurological exam, although ordered, was not

deemed urgent and was further delayed.

    Plaintiff's expert Louis R. Caplan, M.D. stated there was a

need to consider a differentiated diagnosis before concluding

plaintiff suffered a polysubstance overdose.        In his report, he

opined   treating   physicians     ignored   plaintiff's   symptoms   as

suggesting the more serious condition, stating:

          If Dr. Hubbard and the other healthcare
          providers   at   Kennedy   Memorial  Hospital
          involved in [plaintiff]'s care and treatment
          had identified that this was a neurologic
          emergency then [plaintiff] would have been
          considered    for    thrombolytic   and    or
          anticoagulant treatment. As a result of the
          negligence of the defendants, [plaintiff]
          has permanent neurological injuries[,] which




                                    24                         A-2698-14T1
             could have been prevented had the defendants
             acted within the standard of care.

    In his deposition testimony, Dr. Caplan reiterated that no

tests   to   determine      whether       plaintiff    suffered      a    neurological

event   were    performed.              Consequently,      because       "no   adequate

investigation       [and]    no    adequate     differential         diagnosis"      was

performed, no treatment was administered.                        He also identified

other      investigative          procedures        aiding       a   differentiated

neurological diagnosis, such as an MRI or MRA, would lead to a

course of treatment.             Moreover, if the attending physician was

not trained in the area at issue, he or she was obligated to

call a trained and experienced neurologist to assist in the

diagnosis.

    Both the trial judge and Dr. Curreri rely on this colloquy

as demonstrating lack of causation:

                    [DR. CURRERI'S COUNSEL]: If Heparin had
             been   administered to this patient by 12:00
             noon   on October 7, can you state an opinion
             that    this patient's outcome probably would
             have   been better.

                    [DR. CAPLAN]: No.

However,     important      to    any    analysis     is   the    remainder     of   Dr.

Caplan's testimony, as follows:

                  Q.  If heparin had been administered
             by 12:00 noon on October 7, am I correct
             that you cannot, therefore, state that the
             failure to give heparin by 12:00 noon on
             October 7, was a substantial factor in



                                           25                                  A-2698-14T1
increasing     the   risk    and   harm   to   this
patient?

     . . . .

     A.   No, I don’t think that necessarily
follows.   You asked me if she'd been given
it at 12:00 noon.    I can't say that would
have . . . made a difference. It depends on
when it was given whether it was more likely
than not that it would have been helpful.
But that would cover the time period between
when she came into the hospital and 12:00
noon the next day.     That's the point at
issue.

      . . . .

     Q.   If heparin had been given at any
point between 11:00 p.m. on the 6th and
12:00 noon on October 7, can you state the
opinion that the patient's outcome probably
would have been better?

     A.   The difficulty in answering the
question – I'd say this: I can't answer yes
or no.     The reason I can't is we have
inadequate information.   So it would depend
on what the findings were.     As I said, we
don't   have    really   a   good     detailed
neurological full examination early.        We
don't have one really later. So I'm saying
that I think she got worse, but that's a
little hard to be absolutely certain.       We
don’t have an imaging test.       So we don’t
know if the imaging changed.     And we don't
know when it would have been given.

     So the answer is it would have given
her more chance depending on what the
findings were.    Now, we don't know the
findings.   So I can't really answer the
question.  I can't answer yes or no.    I
think it might have given her more of a
chance if it was given at the appropriate




                        26                            A-2698-14T1
            time after the appropriate imaging was done
            depending on what the findings were.

       When asked whether a decision to administer heparin at noon

on October 7 would have complied with the standard of care, Dr.

Caplan stated it would have made a difference and would have

complied with the standard of care.

       Other facts also impact this issue.                   Dr. Baker, a Kennedy

staff intern who treated plaintiff following her admission to

the hospital, contacted Dr. Curreri to accept plaintiff as his

patient.     Dr. Baker's memory of events is poor, but her hospital

notes   record     certain      symptoms       that    prompted       a    neurological

consultation.       Yet,     Dr.     Curreri    did    not    order       an    expedited

consultation, causing its performance to be delayed for more

than    twenty-four      hours.       Dr.      Curreri      accepted       Dr.    Baker's

diagnosis.        However,      he   agreed     if    any    evaluation          does   not

consider a diagnosis, tests would not be initially ordered.                             Dr.

Curreri    acknowledged         he      did    not     consider           an    alternate

neurological diagnosis and, therefore, did not order additional

testing.

       Viewing this record, in a light most favorable to plaintiff

as we must, we conclude the facts, including the expert opinion,

could support a finding Dr. Curreri deviated from the accepted

standard     of   care     in     failing      to     develop     a       differentiated

neurological      diagnosis      and,    therefore,         pursue    an       alternative



                                          27                                       A-2698-14T1
course of medical treatment, which was a substantial factor in

contributing        to       the    injuries       plaintiff         sustained.         Gardner,

supra, 150 N.J. at 375.

      The trial judge concluded Dr. Caplan did not assert "there

would have been a better outcome had[,] at that point in time[,]

Dr.   Curreri       ordered         heparin        treatment."             (Emphasis       added).

However,     this       is    not       the     legal    standard.           "The   substantial

factor test of causation requires the jury to determine whether

the   deviation,         in     the       context       of    the    patient's      preexistent

condition,        was     sufficiently            significant         in     relation      to    the

eventual harm to satisfy the requirement of proximate cause."

Roses v. Feldman, 257 N.J. Super. 214, 218 (App. Div. 1992)

(quoting     Battenfeld            v.     Gregory,      247    N.J.     Super.      538,    546-47

(App. Div. 1991)).              It then "becomes a jury question whether or

not   that    increased            risk    constituted         a     substantial      factor      in

producing the injury."                    Id. at 217 (quoting Battenfeld, supra,

247 N.J. Super. at 546-47).

      The motion judge's conclusion considered only a portion of

Dr.   Caplan's       factual         testimony.              The    expert    opined    had      Dr.

Curreri      acted       when      first        advised       of    plaintiff's      condition,

although     he    could        "not       be    certain"          because    no    testing      was

performed, he believed "it would have given her more of a chance

. . . depending on what the findings were."                                  Accordingly, the




                                                  28                                       A-2698-14T1
jury     must    determine      whether        Dr.     Curreri's       conduct     was     a

substantial factor in causing plaintiff's damages.                            Put another

way,   "plaintiff's        claim     .   .     .    from     delayed    diagnosis        and

treatment will not be diminished or defeated by a demonstration

that delay itself was not the cause of her ultimate physical

injury."        Evers v. Dollinger, 95 N.J. 399, 411 (1984).                             The

judge's erroneous analysis must be reversed and summary judgment

dismissal vacated.

                                             IV.

       In conclusion, we affirm the rejection of the discovery

rule   as    applicable        here,     but       reverse    the    summary     judgment

dismissal       of    claims   against        Dr.    Wetjen,       finding    plaintiff's

timely      complaint      properly       utilized           the     fictitious      party

procedure.           Plaintiff diligently pursued the identity of Dr.

Wetjen and promptly amended her pleadings when Kennedy finally

complied with discovery requests.                   Further, the judge improperly

granted summary judgment, dismissing Dr. Curreri.                            Not only did

the judge overlook evidence of causation provided by plaintiff's

expert, he employed the incorrect legal standard when assessing

the facts.

       Accordingly, we reverse the June 2, 2011 and April 11, 2014

summary     judgment       orders,       as     well    as     the     orders     denying




                                              29                                  A-2698-14T1
reconsideration.    The      matter   is   remanded   for   further

proceedings.

    Reversed and remanded.




                                30                          A-2698-14T1
