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Matynska v. Fried

Supreme Court of New Jersey
Dec 18, 2002
175 N.J. 51 (N.J. 2002)

Summary

holding that plaintiff lacked diligence, and obfuscatory tactics by defendants should not be considered

Summary of this case from Derienzo v. Harvard Industries, Inc.

Opinion

A-83 September Term 2001

Argued September 23, 2002

Decided December 18, 2002

On certification to the Superior Court, Appellate Division.

Richard Galex argued the cause for appellant (Galex, Tortoreti Tomes, attorneys; Mr. Galex and Frances A. Tomes, on the briefs).

Gary L. Riveles argued the cause for respondent Steven H. Fried, M.D. (Dughi, Hewit Palatucci, attorneys).

Kenneth M. Brown argued the cause for respondents Michael Azzoni, M.D. and David Adams, M.D. (Reiseman Sharp Brown Rosenberg, attorneys).

Paul F. Schaaff, Jr. argued the cause for respondent Erwin Mermelstein, M.D. (Orlovsky, Moody Schaaff, attorneys; Jill R. O'Keeffe, on the brief).


Plaintiff, Helena Matynska suffered complications following hip replacement surgery, which she attributed to negligent postoperative medical treatment. She filed a complaint against Robert Wood Johnson University Hospital, eleven doctors and nurses, and "John Doe, M.D. and Jane Doe, R.N." Not named as a defendant was Dr. Mark Feierstein, who for nearly three days after her surgery, "covered" hospital rounds for his partner, Matynska's orthopedic surgeon, Dr. Steven H. Fried.

Although Dr. Feierstein's name appeared twice in Matynska's hospital chart, she claims that she did not timely know that he was in any way responsible for her treatment because she never met him, was not advised that he would be "covering" for Dr. Fried, and because the brief and vague hospital chart references to Dr. Feierstein did not disclose his role in her care and treatment.

Two years after the institution of this action, and four years after the alleged negligence, Matynska filed a motion to amend that complaint to name Dr. Feierstein in place of John Doe, M.D. pursuant to R. 4:26-4. The trial court denied the motion and the Appellate Division affirmed, essentially concluding that if Matynska had undertaken adequate investigation and preparation, she would have discovered Dr.

Feierstein's involvement prior to the expiration of the statute of limitations or within a reasonable time thereof. We granted certification, 171 N.J. 442 (2002), and now affirm.

The Appellate Division was correct in concluding that Matynska's efforts to discover the role of all parties complicit in her injury were wholly inadequate at least insofar as Dr. Feierstein was involved. As the Appellate Division noted, the doctor's name appeared twice in Matynska's hospital records as a physician having participated in her care. Even a cursory look at the telephone book or a call to Dr. Fried or the hospital would have uncovered Dr. Feierstein's status as a partner of Dr. Fried, thus alerting Matynska to his role. She had an obligation to investigate all potentially responsible parties in a timely manner but did not do so. In short, Matynska failed to cross the due diligence threshold, and thus the lower courts properly denied her the right to amend the complaint.

That is not to suggest that we approve of the tactics of Dr. Fried and his counsel. Sharp practice came into play in the answers to interrogatories and in Dr. Fried's dissembling responses to the questions propounded during depositions. Those answers, although late in the game, were given prior to Matynska's motion to add Dr. Feierstein as a defendant. They were obfuscatory, and arguably calculated to mislead Matynska regarding Dr. Feierstein's connection to the case, thus paving the way for the so-called "empty chair" defense. Emblematic was Dr. Fried's refusal in interrogatory answers to even identify the members of his group or to acknowledge that Dr. Feierstein was covering for him on the dates in question.

We abhor such tactics, which, in an appropriate case, could well be considered lulling, if not deliberate concealment. In this case, because Matynska failed in her primary obligation to investigate Dr. Feierstein's involvement in a diligent and timely fashion, the defense's later tactics are not material to our disposition. We nevertheless caution attorneys to avoid such conduct or risk the potential consequences.

The judgment of the Appellate Division is affirmed.

CHIEF JUSTICE PORITZ and JUSTICES COLEMAN, LONG, VERNIERO, LaVECCHIA, ZAZZALI, and ALBIN join in this opinion.


Summaries of

Matynska v. Fried

Supreme Court of New Jersey
Dec 18, 2002
175 N.J. 51 (N.J. 2002)

holding that plaintiff lacked diligence, and obfuscatory tactics by defendants should not be considered

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holding that plaintiff did not exercise diligence because he "could have easily discovered" the identity of the unknown defendant "[b]y merely looking in a telephone book or contacting [the known parties]"

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denying application of equitable tolling principles when information was readily available

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affirming the denial of the plaintiff's motion to replace a fictitious party name where the name of the defendant was identified in the plaintiff's medical records

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reasoning that plaintiff's failure to ascertain defendant's name from plaintiff's own hospital records constituted a lack of diligence

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reasoning that plaintiff's failure to ascertain defendant's name from plaintiff's own hospital records constituted a lack of diligence

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In Matynska, the plaintiff invoked the Fictitious Party Rule to add a doctor as a defendant after commencing an action for medical malpractice.

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reasoning that plaintiff's failure to ascertain defendant's name from plaintiff's own hospital records constituted a lack of diligence

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dismissing the amended complaint because the plaintiff failed to investigate the involvement of a defendant within the statutory period where the name of the previously unknown defendant appeared in the plaintiff's medical record

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referring to the "due diligence threshold"

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In Matynska, the Supreme Court concluded a plaintiff had failed to act with due diligence in failing to name in her complaint a physician who had covered for one of his surgeon partners.

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referring to the "due diligence threshold"

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In Matynska v. Fried, 175 N.J. 51, 53 (2002), the Court determined that the plaintiff did not "cross the due diligence threshold" under Rule 4:26-4 where the physician's name appeared twice in the plaintiff's medical records and even "a cursory look at the telephone book or a call to... the hospital" would have yielded the identity of the fictitiously named defendant.

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referring to the "due diligence threshold"

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noting that the plaintiff has an "obligation to investigate . . . in a diligent and timely fashion"

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admonishing counsel and litigants to refrain from providing misleading discovery responses, such as the refusal of a defendant physician to identify the members of his practice group or to disclose the involvement of his partner in the patient's care

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referring to the "due diligence threshold"

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Case details for

Matynska v. Fried

Case Details

Full title:HELENA MATYNSKA, Plaintiff-Appellant, v. STEVEN H. FRIED, M.D., MICHAEL…

Court:Supreme Court of New Jersey

Date published: Dec 18, 2002

Citations

175 N.J. 51 (N.J. 2002)
811 A.2d 456

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