Plaintiff brought this medical malpractice action as a result of complications suffered following a hysterectomy. Plaintiff attempted to amend her Complaint to include an additional defendant physician, Daniel H. Tobias, M.D. The trial court entered an interlocutory Order denying plaintiff’s attempt to amend her Complaint, finding that the two-year statute of limitations had expired and plaintiff had not demonstrated at an evidentiary hearing that principles of equitable tolling justified an extension of the two-year statute of limitations.
Plaintiffs were then granted leave to appeal the trial court’s order. The Appellate Division, in a decision dated November 27, 2013, reversed the trial court’s order, finding that under the distinctive circumstances of the case, principles of equitable tolling warrant the inclusion of Doctor Tobias as a co-defendant. The Court found that these circumstances included: faulty medical recordkeeping that omitted Dr. Tobias from the operative report as one of the doctors who performed surgery on plaintiff; the lead surgeon’s failure to disclose Dr. Tobias’ involvement to the plaintiff when she consulted him about post-surgical complications; and incomplete, potentially misleading interrogatory responses by co-defendants which masked Dr. Tobias’ involvement. As plaintiff and her attorneys acted reasonably under the circumstances, and had scant reason to believe that another surgeon, Dr. Tobias, participated in the operation, equitable principles justified tolling the two-year statute of limitations.
The Appellate Court further rejected Dr. Tobias’ separate argument that the claims against him are barred because plaintiff’s original complaint did not name a fictitious “John Doe” physician as an additional defendant. The Court noted that Rule 4:26-4 merely read that a plaintiff “may” include potentially unknown defendants as fictitious John Does, but that it was not required.
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