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New Jersey Tort Claims Act-“A Trap for the Unwary?” - Part I


Rights of the medical malpractice plaintiff in New Jersey are limited by the provisions of the New Jersey Tort Claims Act (“TCA”), also known as Title 59. The Act requires that anyone intending to sue The University of Medicine and Dentistry of New Jersey in Newark (“UMDNJ”), Rutgers Medical School and/or any of its closely affiliated hospitals, or its faculty, fellows or residents needs to file a Notice of Claim within 90 days of the “accrual of the action.” A medical malpractice action has been found to accrue when the patient discovers not only the injury, but also reasonably should have known that this injury was due to the negligence of another. If the plaintiff misses the 3 month window, then the TCA will bar him forever from filing his claim, unless he can demonstrate “extraordinary circumstances” for his failure to file within the period of time prescribed.

The New Jersey Legislature enacted the TCA with the intent of allowing public entities to investigate claims while evidence is fresh and to allow them to settle meritorious claims early. Difficulty with its notice provisions arises because the status of an UMDNJ or Rutgers hospital or physician employee is not always clear. Employee physicians frequently practice at private hospitals or free-standing surgical centers. In addition, physicians-in-training rotate through dozens of hospitals with only the loosest of affiliations with the State. Recently, the situation has become more complicated as UMDNJ of Newark and Rutgers Medical School have become separate entities both providing health care to NJ residents.

The New Jersey Supreme Court has examined the provisions of the physician notice requirement of the TCA in three key cases: Eagan v. Boyarsky, 158 N.J. 632 (1999),Lowe v. Zarghami, 158 N.J. 606 (1999) and Ventola v. N.J. Veteran’s Memorial Home, 164 N.J. 74 (2000). The Court has held that UMDNJ needs to inform its patients that their attending physicians are public employees protected by the Act. In Eagan, the Court reiterated that the notice provisions of the TCA were not intended as “a trap for the unwary.”

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