Med Mal complaint permitted to proceed under the discovery rule Talian v. Peck
Defendants appealed the denial of their motion to dismiss plaintiff's medical malpractice action for failure to file a timely Tort Claims Act notice.
Defendants appealed the denial of their motion to dismiss plaintiff's medical malpractice action for failure to file a timely Tort Claims Act notice. Plaintiff was treated in September 2017 for acute right leg cellulitis. Doctor performed drainage and debriding procedures. While hospitalized, patient was also diagnosed with colonic obstruction and same doctor performed surgery. Plaintiff had received continuous treatment for wound care and rehabilitation ever since. Plaintiff described his treatment to a physician friend over a lunch in 2019 and friend wrote plaintiff a letter expressing his concerns over treatment plaintiff had received. Plaintiff retained counsel and filed his notice of claim in September 2019. Trial judge applied the discovery rule, found a reasonable person in plaintiff's position would not have recognized doctor might have been at fault for his injuries and the notice was timely. Defendants argued trial court erred in applying the discovery rule. Court found the record supported trial court's findings. Plaintiff had received continuous care for two years, but no medical professional treating him during that time alerted him to the possibility defendant was at fault for his continued complications. However, although plaintiff's notice of claim was timely, he did not comply with TCA's six-month waiting period before filing his complaint. Trial court found, and court agreed, the premature filing did not prejudice defendants. source https://www.law.com/njlawjournal/almID/1615833834NJA235719/
