                                 NOT FOR PUBLICATION WITHOUT THE
                                APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited . R. 1:36-3.




                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-0526-18T4

RAHEIM SMITH and
MICHELLE SMITH,

          Plaintiffs-Appellants,

v.

ST. JOSEPH'S HOSPITAL AND
MEDICAL CENTER, t/d/b/a
ST. JOSEPH'S REGIONAL
MEDICAL CENTER and t/d/b/a
ST. JOSEPH'S UNIVERSITY
MEDICAL CENTER, ST.
JOSEPH'S HEALTHCARE, INC.,
ST. JOSEPH'S HEALTHCARE
SYSTEM, INC., ST. JOSEPH'S
PHYSICIANS HEALTHCARE
GROUP, INC., ST. JOSEPH'S
PHYSICIANS, INC., ST. JOSEPH'S
FACULTY PHYSICIANS, INC.,
UNIVERSITY SPINE CENTER,
PC, and MICHAEL J. FALOON,
M.D.,

          Defendants-Respondents,

and

VIRTUAL RADIOLOGIC
PROFESSIONALS, LLC, VIRTUAL
RADIOLOGIC PROFESSIONALS
OF NEW JERSEY, PA, VIBHU
KAPOOR, M.D., and SETON HALL
UNIVERSITY,

     Defendants.
______________________________

           Argued November 27, 2018 – Decided March 19, 2019

           Before Judges Fisher and Suter.

           On appeal from Superior Court of New Jersey, Law
           Division, Essex County, Docket No. L-1489-16.

           Jillian A.S. Roman argued the cause for appellants
           (Cohen, Placitella & Roth, PC, attorneys; Jillian A.S.
           Roman, on the brief).

           Charles E. Murray, III, argued the cause for
           respondents St. Joseph's Hospital and Medical Center,
           St. Joseph's Healthcare, Inc., St. Joseph's Healthcare
           System, Inc., St. Joseph's Physicians Healthcare Group,
           Inc., St. Joseph's Physicians, Inc. and St. Joseph's
           Faculty Physicians, Inc. (Farkas & Donohue, LLC,
           attorneys; Charles E. Murray, III, on the brief).

           Richard J. Tamn argued the cause for respondents
           Michael J. Faloon, M.D. and University Spine Center,
           PC (Krompier & Tamn, LLC, attorneys; Richard J.
           Tamn, of counsel and on the brief; Elizabeth G.
           Thompson, on the brief).

PER CURIAM

     Plaintiffs Raheim and Michelle Smith were granted leave to appeal from

an order denying the amendment of their medical malpractice complaint that

                                                                     A-0526-18T4
                                     2
would have added Kumar G. Sinha, M.D. and Leah Abucay, R.N. as additional

defendants, and a subsequent order that denied their motion for reconsideration.

We reverse the denial of the amendment because the discovery rule should have

been applied.1 We also reverse the denial of reconsideration.

                                       I

      We relate facts pertinent to this opinion. Raheim,2 who was sixteen in

2015, suffered from severe "idiopathic scoliosis"3 of the spine. Michelle is his

mother. On April 7, 2015, defendant Michael J. Faloon, M.D. (Dr. Faloon) and

Kumar G. Sinha, M.D. (Dr. Sinha), who practiced together in defendant

University Spine Center, PC, performed scoliosis reconstruction surgery on

Raheim's spine. The operation was performed at defendant St. Joseph's Hospital

and Medical Center. Raheim had normal feeling and strength in his legs and

arms right after the surgery. By about 10:00 p.m. that evening, however, Raheim

complained of lack of feeling or movement in his legs or feet. Neurological



1
  We do not reverse the part of the order that amended the caption to allow
Raheim Smith to bring the action individually on his own behalf.
2
  We use first names in this opinion to avoid confusion because plaintiffs share
the same surname.
3
  Scoliosis is defined as an abnormal lateral and rotational curvature of the
vertebral column (spine). Stedman's Medical Dictionary 1734 (28th ed. 2005).
                                                                        A-0526-18T4
                                       3
testing confirmed he had lost feeling below the nipple line, movement in his legs

and feet and some strength in his left hand. He received medical treatment and

an MRI was performed. While at the MRI, Raheim regained movement and

sensation.

      A decision was made to transfer Raheim to the Pediatric Intensive Care

Unit (PICU) rather than operate on him further that night. When Raheim was

admitted to PICU at about 2:20 a.m., he reported feeling pain stimulation in both

legs but his left hand grasp was a little less. Leah Abucay, R.N. (Nurse Abucay),

who was on duty in PICU, performed a number of medical checks throughout

the rest of the night, but did not wake Raheim to conduct neurological tests to

monitor his movements or feeling. At 6:30 a.m., an orthopedic resident who

examined Raheim, found he had lost motor function and sensation in his legs

and feet. Drs. Faloon and Sinha were notified and later that morning they

operated on Raheim to remove the implants they had inserted in the earlier spinal

surgery. Raheim did not regain sensation or movement thereafter and now

suffers from paraplegia.   Plaintiffs contend the MRI was misread and that




                                                                         A-0526-18T4
                                       4
Raheim experienced a post-operative epidural hematoma 4 that compressed the

spinal cord.

      In March 2016, Michelle filed a malpractice lawsuit for Raheim in her

capacity as his guardian and for herself individually. Dr. Faloon and others were

named as defendants. Discovery progressed; there were multiple motions to

address discovery issues.

      In late May 2018, plaintiffs filed a motion to amend their complaint to add

Dr. Sinha and Nurse Abucay as defendants and, because Raheim no longer was

a minor, to amend the complaint's caption to reflect that the claims were brought

by him individually. Plaintiffs claimed they first learned on October 25, 2017,

when Dr. Sinha was deposed, that he and Dr. Faloon decided jointly not to

operate on Raheim but to place him in PICU based on the MRI and on Raheim's

regained movement. None of the medical records had shown that Dr. Sinha

participated in the decision not to operate a second time.

      Plaintiffs claimed they learned on November 17, 2017, that Dr. Faloon

had ordered PICU to perform hourly neurological testing of Raheim. The

medical records did not show that order, so plaintiffs were not aware of this


4
  An epidural hematoma occurs when a mass of blood forms on or outside of
the dura matter (the outer most membrane enveloping the brain and spinal cord).
Stedman's Medical Dictionary 654, 863, and 592 (28th ed. 2005).
                                                                         A-0526-18T4
                                        5
prior to the deposition of a resident where this information was revealed. Also,

on February 20, 2018, plaintiffs obtained a copy of the hospital's policy that

PICU patients should be assessed every one to two hours or more frequently as

needed. Plaintiffs' motion sought to add Nurse Abucay as a defendant because

they alleged she violated her duty of care by not performing hourly neurological

checks or following the hospital's policy.

      The trial court denied plaintiffs' motion to add Dr. Sinha and Nurse

Abucay as defendants, rejecting their argument that the discovery rule applied.

The court concluded plaintiffs had "a basis to bring Sinha and . . . Abucay into

this case long before now." "Dr. Sinha was the assistant in the operation. Nurse

Abucay was monitoring during the three hours . . . [t]here was enough to put

you on notice." Plaintiffs were not diligent; the court noted that "the concept of

due diligence appli[ed] in the discovery rule context." Also, plaintiffs did not

supply the court with legal authority to support their arguments. However, the

judge did grant plaintiffs' motion to amend the caption to reflect that Raheim's

claims now were brought in his individual capacity.

      The    court   subsequently    denied   plaintiffs'   motion   for    partial

reconsideration because plaintiffs' arguments previously had been raised,




                                                                           A-0526-18T4
                                        6
considered and rejected by the court. We granted plaintiffs' motion for leave to

appeal.

      On appeal, plaintiffs contend the trial court erred by holding they could

not rely on the discovery rule to amend their complaint when previously they

were not aware of facts demonstrating medical negligence by Dr. Sinha and

Nurse Abucay. They also contend the court erred in finding they were dilatory

in conducting discovery and filing a motion to amend even though their motion

was filed within two years of discovering the alleged negligence by Dr. Sinha

and Nurse Abucay and within two years of Raheim reaching eighteen.

                                     II

      We review the trial court's ruling on a motion to amend the pleadings

under the abuse of discretion standard. Fisher v. Yates, 270 N.J. Super. 458,

467 (App. Div. 1994). The same standard governs our review of decisions on

motions for reconsideration. Cummings v. Bahr, 295 N.J. Super. 374, 389 (App.

Div. 1996).

      After a responsive pleading has been served, a party may amend a

pleading "by written consent of the adverse party or by leave of court, which

shall be freely given in the interest of justice." R. 4:9-1. Kernan v. One

Washington Park Urban Renewal Assocs., 154 N.J. 437, 456-57 (1998). This


                                                                        A-0526-18T4
                                          7
decision is committed to the sound discretion of the trial court. Ibid. The

"exercise of discretion requires a two-step process: whether the non-moving

party will be prejudiced, and whether granting the amendment would

nonetheless be futile." Notte v. Merchs. Mut. Ins. Co., 185 N.J. 490, 501 (2006).

"[T]he factual situation in each case must guide the court's discretion,

particularly where the motion is to add new claims or new parties late in the

litigation." Bonczek v. Carter-Wallace, Inc., 304 N.J. Super. 593, 602 (App.

Div. 1997). "'[C]ourts are free to refuse leave to amend when the newly asserted

claim is not sustainable as a matter of law.'" Notte, 185 N.J. at 501 (quoting

Interchange State Bank v. Rinaldi, 303 N.J. Super. 239, 256-57 (App. Div.

1997)).

      Plaintiffs contend the court erred in denying their motion because the

discovery rule applied. Under that rule, they had two years from when they

discovered the negligence by Dr. Sinha and Nurse Abucay to file suit. Because

their motion was filed within that timeframe, it was not "futile" as defendants

argued.

      Medical malpractice actions must be instituted within two years from the

date of the alleged negligence. N.J.S.A. 2A:14-2. However, the discovery rule

was adopted "[t]o prevent the sometimes harsh result of a mechanical


                                                                         A-0526-18T4
                                       8
application of the statute of limitations." Martinez v. Cooper Hosp. Univ. Med.

Ctr., 163 N.J. 45, 52 (2000) (citing Vispisiano v. Ashland Chem. Co., 107 N.J.

416, 426 (1987), and Fernandi v. Strully, 35 N.J. 434, 449-50 (1961)). As a rule

of equity, it provides that a cause of action will not accrue "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" against

another party. Lopez v. Swyer, 62 N.J. 267, 272 (1973). It "prevents the statute

of limitations from running when injured parties reasonably are unaware that

they have been injured, or, although aware of an injury, do not know that the

injury is attributable to the fault of another." Baird v. American Medical Optics,

155 N.J. 54, 66 (1998) (citing Tevis v. Tevis, 79 N.J. 422, 432 (1979)). Further,

"where a plaintiff knows of an injury, but fault is not self-evident or implicit in

the injury itself, it must be shown that a reasonable person would have been

aware of such fault in order to bar the plaintiff from invoking the discovery

rule." Martinez, 163 N.J. at 55.

      The trial court rejected application of the discovery rule because plaintiffs

knew about Raheim's paralysis, that Dr. Sinha was involved in the original

operation and that Nurse Abucay was on duty that night in PICU. It was not

persuaded to apply the rule just because plaintiffs were not aware until much


                                                                           A-0526-18T4
                                        9
later in discovery of Dr. Sinha and Nurse Abucay's alleged fault during the

overnight hours. However:

            knowledge of fault for purposes of the discovery rule
            has a circumscribed meaning: it requires only the
            awareness of facts that would alert a reasonable person
            exercising ordinary diligence that a third party's
            conduct may have caused or contributed to the cause of
            the injury and that conduct itself might possibly have
            been unreasonable or lacking in due care.

            [Savage v. Old Bridge-Sayreville Medical Group, 134
            N.J. 241, 248 (1993).]

      Plaintiffs limit their malpractice claim against Dr. Sinha and Nurse

Abucay to "the post-surgical care received by [Raheim] during the overnight

hours of April 7, 2015 to April 8, 2015." Although they were aware that Dr.

Sinha assisted in the reconstructive surgery on April 7, there was nothing in the

medical records to show that he was involved in any of the decisions during or

after the MRI. Defendants do not dispute that. Dr. Sinha's involvement with

that subsequent period was not known until his deposition in October 2017.

Therefore, although plaintiffs knew the nature of the injury, they reasonably did

not know that the injury was attributable to the alleged fault of Dr. Sinha.

      The same is true for Nurse Abucay.         Plaintiffs were aware she was

involved with Raheim's care in the early morning of August 8 and that the

medical records did not reflect neurological testing. Plaintiffs did not know

                                                                          A-0526-18T4
                                       10
until November 2017 about Dr. Faloon's order for hourly neurological tests.

Nurse Abucay acknowledged not waking Raheim to perform neurologic tests.

We are satisfied that the discovery rule applies because a reasonable person

exercising ordinary diligence would not have been aware that Dr. Sinha and

Nurse Abucay's conduct "may have caused or contributed to the cause of the

injury and that conduct itself might possibly have been unreasonable or lacking

in due care." Savage, 134 N.J. at 248.

      We also are satisfied plaintiffs acted diligently in pursuing these claims.

There were multiple discovery motions and request to produce documents.

Discovery was still on-going in the Fall of 2017 when this information was

obtained. Defendants do not allege they were prejudiced by the time elapsed

from when the depositions were taken to the time this motion was filed.

      The case is similar to Gallagher v. Burdette-Tomlin Mem. Hosp., 163 N.J.

38 (2000), where the Court affirmed an application of the discovery rule. In

Gallagher, plaintiff had surgery to alleviate incontinence, but after the operation

she developed an infection and abscess resulting in her total incontinence. The

Court applied the discovery rule, recognizing that the statute of limitations for a

medical malpractice case can run at different times for different defendants. 163

N.J. at 43. The Court stated "[t]he patient here had no reasonable basis to


                                                                           A-0526-18T4
                                       11
suspect that her crippling condition was caused by anything other than the

original surgery." Ibid. There was "[n]o readily apparent indication of the

[doctor's] potential contribution to the patient's medical deterioration

materialized until [the expert physician] brought the failure to treat plaintiff's

infection to light." Id. at 44. The Court held that "[t]he benefit of the discovery

rule should be available to this plaintiff who remained reasonably 'unaware . . .

that the injury [wa]s due to the fault or neglect of an identifiable individual or

entity.'" Id. at 43-44 (alterations in the original) (quoting Abbond v. Viscomi,

111 N.J. 56, 62 (1988)).

      Even if the discovery rule did not apply, Raheim should have been able to

amend the complaint to add these claims based on equitable tolling. N.J.S.A.

2A:14-21 provides:

            If a person entitled to commence an action or
            proceeding specified in [N.J.S.2A:14-2] . . . is under the
            age of [eighteen] years . . . the person may commence
            the action or make the entry, within the time as limited
            by [the] statute[], after reaching majority or having the
            mental capacity to pursue the person's lawful rights.

            [N.J.S.A. 2A:14-21.]

      In LaFage v. Jani, 166 N.J. 412, 430-31 (2001), where the children's

mother filed a wrongful death action twenty-seven days after the statute of

limitations had run, the court permitted equitable tolling. More recently in A.T.

                                                                           A-0526-18T4
                                       12
v. Cohen, 231 N.J. 337 (2017), the Supreme Court addressed the effect of an

untimely affidavit of merit, filed on behalf of a minor by her parent, on the

dismissal of the minor's malpractice action.     In that case, the Court found

extraordinary circumstances to permit reinstatement of that complaint, reversing

the Appellate Division's majority opinion that had relied on Kubiak v. Robert

Wood Johnson Univ. Hosp., 332 N.J. Super. 230, 238 (App. Div. 2000) to affirm

dismissal of the complaint.      The denial of Raheim's motion to amend his

complaint was not consistent with the "solicitude the law affords minors,"5 or

the equitable tolling statute.

      We are mindful of the potential for prejudice, but in this case defendants

have been aware of plaintiff's injury and the malpractice lawsuit for a number

of years, records have been obtained, depositions taken, the additional parties

have been deposed and the claims against them are limited to their involvement

in the overnight hours following the reconstructive operation.

      Therefore, we conclude the trial court misapplied its discretion in denying

plaintiff's motion to amend the complaint to add Dr. Sinha and Nurse Abucay as




5
  A.T. v. Cohen, 445 N.J. Super. 300, 310 (App. Div. 2016) (Fisher, P.J.A.D.,
dissenting) (reversed and remanded by A.T., 231 N.J. 337).
                                                                         A-0526-18T4
                                      13
defendants. We reverse those portions of the orders and remand for further

proceedings consistent with this decision. We do not retain jurisdiction.

      Reversed and remanded.




                                                                        A-0526-18T4
                                      14
