Ramon A. Penn Jimenez, Etc. v. Robert Wood Johnson Barnabas Health

NOT FOR PUBLICATION WITHOUT THE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-1996-24

RAMON A. PENN JIMENEZ, as

Administratrix ad Prosequendum

for the ESTATE OF MATILDE

JIMENEZ PENN,

Plaintiff-Respondent,

v.

ROBERT WOOD JOHNSON

BARNABAS HEALTH,

JERSEY CITY MEDICAL

CENTER, JERSEY CITY

MEDICAL CENTER VASCULAR

CENTER, PA, SIMA SUHAS

PENDHARKAR, M.D.,

and MARIA J. GLODEK

SOLLECITO, R.N.,

Defendants,

and

JOE T. HUANG, M.D., EVAN

KESSLER, M.D., and

ELIZABETH GORMAN, M.D.,

Defendants-Appellants.

Submitted January 8, 2026 – Decided February 2, 2026

Before Judges Mawla and Marczyk.

On appeal from the Superior Court of New Jersey, Law

Division, Hudson County, Docket No. L-1548-24.

Buckley Theroux Kline & Cooley, LLC, attorneys for

appellants (Tess J. Kline and Charles C. Loughery, on

the briefs).

Christopher T. Howell, attorney for respondent.

PER CURIAM

Defendants Joe T. Huang, M.D., Evan Kessler, M.D., and Elizabeth

Gorman, M.D. (defendant physicians) appeal from the trial court's January 17,

2025 order denying their motion to dismiss plaintiff Ramon A. Penn Jimenez's1

complaint for failure to serve a timely notice of claim as required under the New

Jersey Tort Claims Act (TCA), N.J.S.A. 59:1-1 to :12-3. We reverse.

I.

On April 27, 2022, decedent underwent surgery, performed by defendant

physicians, at Jersey City Medical Center (JCMC). During the procedure, a fire

broke out near the operating table igniting the drapes covering decedent,

1

Plaintiff is named as the administratrix ad prosequendum for the estate of

Matilde Jimenez Penn (decedent).

A-1996-24

2

resulting in her sustaining burn injuries. Decedent subsequently died in May

2023, which plaintiff alleges was caused by defendant physicians' negligence.

On May 10, 2022, plaintiff's counsel served a notice of claim, pursuant to

N.J.S.A. 59:8-7, on JCMC.2 Plaintiff was not in possession of decedent's

medical records from JCMC when he served the notice of claim. JCMC

provided decedent's medical records to plaintiff on May 31, 2022.

Over the next two years, plaintiff's counsel communicated with JCMC and

its third-party administrator, VCM, LLC, which did not disclose defendant

physicians were employed by Rutgers. Counsel's efforts to obtain Dr. Huang's

insurance information were also unsuccessful.

Plaintiff filed a complaint on April 23, 2024, alleging several causes of

action, including medical malpractice. Dr. Kessler filed an answer on July 2,

2024, and Drs. Huang and Gorman answered on August 15, 2024. Dr. Kessler

asserted the following affirmative defenses:

[] Defendant was an employee of the State of New

Jersey during the time period in question—specifically,

[d]efendant was employed by Rutgers, The State

University of New Jersey on April 27, 2022.

[] Plaintiff has failed to comply with the notice

requirements of the [TCA] (N.J.S.A. 59:1-1 to [:]12-3).

2

No notice was served on Rutgers or defendant physicians.

A-1996-24

3

[] Plaintiff's claims are barred by the [TCA,]

N.J.S.A. 59:1-1 to [:]12-3.

Drs. Huang and Gorman advanced the same defenses in their answer.

Moreover, on August 15, defense counsel forwarded correspondence to

the court—and copied plaintiff's counsel—advising, "[d]efendants are insured

through a program of self-insurance governed by the State of New Jersey

[TCA]." The correspondence included a certification from the assistant director

of healthcare risk and claims management at Rutgers "to clarify [d]efendants'

employment status at the time of the negligence alleged" in this case. The

assistant director certified, "[a]t the time of the negligence asserted in the

[c]omplaint," defendant physicians were employed by "Rutgers New Jersey

Medical School." The certification further noted Dr. Huang was an associate

professor of surgery, and Drs. Kessler and Gorman were surgery fellows.

Defense counsel certified that on August 22, 2024, and again on

September 10 and September 12, plaintiff's counsel spoke with defense counsel

on the phone. The certifications assert plaintiff's counsel reached out because

he saw defendants' answers indicating defendants were employed by Rutgers.

Defense counsel further noted plaintiff's counsel was advised of defendants'

employment with Rutgers. Plaintiff's counsel was also advised decedent's

A-1996-24

4

medical records reflected Dr. Huang was affiliated with Rutgers, and defendants

would not waive the TCA's notice requirements.

On November 14, 2024, defendant physicians moved to dismiss plaintiff's

complaint for "failure to serve a [n]otice of [t]ort [c]laim pursuant to N.J.S.A.

59:8-8(a)." Plaintiff opposed the motion, arguing he "substantially complied"

with the TCA's notice requirement. In the alternative, plaintiff asserted

decedent's medical records did not clearly indicate defendant physicians were

employees of Rutgers. He further contended defendants' answers were

insufficient to put him on notice they were employed by Rutgers while operating

on decedent in April 2022. Plaintiff also argued the court should grant

permission to file a late tort claims notice. He maintained it was not until

November 13, 2024, when Dr. Huang answered interrogatories, that it was

clarified the capacity in which defendant physicians were employed while

operating on decedent. Plaintiff did not serve a notice of claim on defense

counsel until the day of oral argument—January 17, 2025.

On January 17, 2025, the motion judge issued an order denying defendant

physicians' motion to dismiss, stating:

Pursuant to Galik v. Clara Maass Medical Center, 167

N.J. 341, 353 (2001), the [c]ourt finds that [p]laintiff

substantially complied with the New Jersey [TCA]

notice [requirement] pursuant to N.J.S.A. 59:8-8.

A-1996-24

5

Plaintiff served a [t]ort [c]laims [n]otice o[n] [JCMC]

on May 13, 2022[,] at which point the doctors were on

notice of the suit. A reasonable, timely[,] and

statutorily compliant notice was sent to JCMC where

[defendant] doctors Huang, Kessler, and Gorman were

working as agents of the hospital but, unknown to

plaintiff at the time, were employed through Rutgers.

Plaintiff had no reason to suspect that her doctors were

even associated with a public entity while treating at a

private hospital. Plaintiff followed the procedures

necessary to claim medical malpractice against [a]

physician at JCMC in ordinary circumstances. At no

time within the one-year notice of late claim statutory

period did JCMC advise plaintiff of the [defendant]

doctors['] correct employment status, despite their duty

to do so.

[(Citation reformatted).]

II.

Defendant physicians argue on appeal the trial court erred in finding

plaintiff substantially complied with the TCA's notice requirement. They assert

the accrual date of plaintiff's claim was April 27, 2022, or alternatively, July 2

and August 14, 2024, when defendants' answers were filed, and plaintiff's failure

to file a timely notice of claim warranted dismissal of the complaint with

prejudice.

We review issues of law de novo and accord no deference to the trial

judge's legal conclusions. Nicholas v. Mynster, 213 N.J. 463, 478 (2013). For

mixed questions of law and fact, we give deference to the court's supported

A-1996-24

6

factual findings, but review de novo the court's application of any legal rules to

such factual findings. State v. Pierre, 223 N.J. 560, 577 (2015). "[Q]uestions

of fact as to when a cause of action is deemed to accrue for purposes of applying

a statute of limitations are ordinarily resolved by a judge . . . ." Berlen v. Consol.

Rail Corp., 291 N.J. Super. 542, 555 (App. Div. 1996) (citing Lopez v. Swyer,

62 N.J. 267, 272 (1973)). As we have explained, "[w]hether a cause of action

is barred by a statute of limitations is a question of law, also reviewed de novo."

Catena v. Raytheon Co., 447 N.J. Super. 43, 52 (App. Div. 2016) (citing Est. of

Hainthaler v. Zurich Com. Ins., 387 N.J. Super. 318, 325 (App. Div. 2006)); see

also Save Camden Pub. Schs. v. Camden City Bd. of Educ., 454 N.J. Super. 478,

487-88 (App. Div. 2018). Moreover, "we review de novo . . . whether the

doctrine of substantial compliance applies to preserve [a plaintiff's] claim[]."

H.C. Equities, LP v. Cnty. of Union, 247 N.J. 366, 381 (2021).

Defendant physicians assert the trial court erred in finding plaintiff

substantially complied with the requirements of the TCA because plaintiff had

"actual knowledge of [defendants'] status as . . . public . . . employees" prior to

or on August 15, 2024. They also contend plaintiff had the ability "to determine

[defendants'] public employee status through a bare modicum of diligence when

[decedent's] medical records were received [by plaintiff] on May 31, 2022."

A-1996-24

7

Furthermore, defendants insist "the trial court ignored every event that occurred

after the [c]omplaint was filed, any of which, individually, would have been

sufficient to unequivocally place [p]laintiff on notice of the need to serve a

[TCA] notice." They maintain "[t]he mere filing of a [c]omplaint does not

constitute substantial compliance with Title 59 notice requirements," and

"failure by a plaintiff to serve a [n]otice of [c]laim within ninety days of accrual

ordinarily results in that plaintiff being 'forever barred' from bringing a

particular action against a public entity." See Guzman v. City of Perth Amboy,

214 N.J. Super. 167, 171-72 (App. Div. 1986).

Defendant physicians maintain any alleged wrongful act took place on

April 27, 2022, the date of the fire in the operating room, and thus, "[t]he ninety -

day period for [p]laintiff's [n]otice of [c]laim ran [out] on July 26, 2022."

Additionally, they assert, "[e]ven assuming that [p]laintiff would be afforded

permission to file a [l]ate [n]otice based on a sufficient showing of good cause

and extraordinary circumstances, [p]laintiff would still be required to file a [l]ate

[n]otice within one year of the accrual date," which would have been April 27,

2023.

Alternatively, defendant physicians contend that even if the court finds

plaintiff was not on notice of defendants' status as public employees until July

A-1996-24

8

2, 2024, when Dr. Kessler answered the complaint, or August 15, 2024, when

Drs. Huang and Gorman served their answers, plaintiff was still required to

provide a notice of claim to defendants by September 30, 2024 and November

13, 2024, respectively. However, plaintiff's notice of claim was not filed until

January 17, 2025.

Defendant physicians acknowledge, under traditional equitable principles,

"the ninety-day period within which the injured party must file a notice of claim

against a public entity is . . . delayed until the injured party learns of the injury

or of the third party's responsibility for that injury." Ben Elazar v. Macrietta

Cleaners, Inc., 230 N.J. 123, 135 (2017); see also McDade v. Siazon, 208 N.J.

463, 475 (2011). They also concede when a claimant is injured by a third party

and does not know or has no reason to know a public entity is responsible for

that injury, "the discovery rule applies to toll the accrual date for triggering the

notice-of-claim requirement." Ben Elazar, 230 N.J. at 140.

Defendant physicians assert plaintiff had "actual notice" of their

employment status as public employees "from the very outset of this case," as

their employment with Rutgers was "clearly set forth in the medical records at

issue." At the latest, plaintiff had notice when defendants' answers to plaintiff's

complaint were served in July and August 2024. Moreover, they contend

A-1996-24

9

plaintiff failed to seek leave to file a late notice of claim as permitted by N.J.S.A.

59:8-9.

"The New Jersey [TCA], N.J.S.A. 59:1-1 to :12-3, is the statutory

mechanism through which our Legislature effected a waiver of sovereign

immunity." D.D. v. Univ. of Med. & Dentistry of N.J., 213 N.J. 130, 133 (2013).

"The guiding principle of the [TCA] is that 'immunity from tort liability is the

general rule and liability is the exception . . . .'" Coyne v. State, Dep't of Transp.,

182 N.J. 481, 488 (2005) (quoting Garrison v. Twp. of Middletown, 154 N.J.

282, 286 (1998)). "Among the most important limitations that the Act imposes

on would-be claimants are . . . the statutory provisions that govern a claimant's

obligation to file a notice of tort claim as a prerequisite to initiating litigation."

D.D., 213 N.J. at 134.

Under N.J.S.A. 59:8-8,

[a] claim relating to a cause of action for death or for

injury or damage to person or to property shall be

presented as provided in this chapter not later than the

[ninetie]th day after accrual of the cause of action. . . .

The claimant shall be forever barred from recovering

against a public entity or public employee if:

a. The claimant failed to file the claim with the

public entity within [ninety] days of accrual of

the claim except as otherwise provided in

N.J.S.A. 59:8-9 . . . .

A-1996-24

10

N.J.S.A. 59:8-9, in pertinent part, provides:

A claimant who fails to file [a] notice of [their] claim

within [ninety] days . . . may, in the discretion of a

judge of the Superior Court, be permitted to file such

notice at any time within one year after the accrual of

[their] claim provided that the public entity or the

public employee has not been substantially prejudiced

thereby. Application to the court for permission to file

a late notice of claim shall be made upon motion

supported by affidavits based upon personal knowledge

of the affiant showing sufficient reasons constituting

extraordinary circumstances for [their] failure to file

notice of claim within the period of time prescribed by

section 59:8-8 . . . .

"Ascertaining the timeliness of a [TCA] notice requires a . . . three-step

sequential analysis . . . ." McNellis-Wallace v. Hoffman, 464 N.J. Super. 409,

416 (App. Div. 2020) (citing Beauchamp v. Amedio, 164 N.J. 111, 118 (2000)).

"The first step is to determine when the cause of action accrued in accordance

with N.J.S.A. 59:8-1." Ibid. "Once the date of accrual is ascertained, one can

proceed to the second step, which 'is to determine whether a notice of claim was

filed within ninety days' as required by N.J.S.A. 59:8-8." Ibid. (quoting

Beauchamp, 164 N.J. at 118). "'If not, the third task is to decide whether

extraordinary circumstances exist justifying a late notice' under N.J.S.A. 59:8-

9." Ibid. (quoting Beauchamp, 164 N.J. at 118-19). In addition to extraordinary

circumstances, there must also be a showing that the public entity is not

A-1996-24

11

"substantially prejudiced" by the late notice. McDade, 208 N.J. at 477 (quoting

N.J.S.A. 59:8-9).

Our focus here relates to the first step—when the cause of action accrued

in accordance with N.J.S.A. 59:8-1. "The discovery rule is part and parcel of

such an inquiry because it can toll the date of accrual." McNellis-Wallace, 464

N.J. Super. at 416. In general, the discovery rule tolls the accrual of a cause of

action if the plaintiff "reasonably is unaware either that [they] ha[ve] been

injured, or that the injury is due to the fault or neglect of an identifiable

individual or entity." Caravaggio v. D'Agostini, 166 N.J. 237, 245 (2001)

(quoting Abboud v. Viscomi, 111 N.J. 56, 62 (1988)). Our Supreme Court has

also determined a sub-category of "knowledge of fault" cases exist "in which a

plaintiff knows [they] ha[ve] been injured and knows the injury was the fault of

another, but does not know that an additional party was also responsible for

[their] plight." Ben Elazar, 230 N.J. at 139. In other words, "[w]hen a plaintiff

is injured by a third party and has no reason to believe that another party,

specifically a public entity, is responsible for the injury, then the discovery rule

applies to toll the accrual date for triggering the notice-of-claim requirement."

Id. at 140.

A-1996-24

12

Plaintiff relies on Eagan v. Boyarsky, 158 N.J. 632 (1999), and Lowe v.

Zarghami, 158 N.J. 606 (1999), for the proposition that defendant physicians are

barred from invoking the protection of the TCA because decedent was not

properly advised of their employment status during her treatment. To avoid

confusion concerning physicians' status as public employees, the Court issued

the following directive in both Lowe and Eagan:

[Public medical schools] must require clinical

professors employed by them to advise their patients,

both orally and in writing, that they are employees of

[public medical schools]. Such notice should be given

to a patient as soon as practicable. It also would be

helpful if clinical professors wore badges identifying

themselves as [public medical school] employees.

Those steps, if taken together with this holding that

clinical professors are [public medical school]

employees, should make patients aware that their

physicians are public employees entitled to notice

under the TCA.

[Eagan, 158 N.J. at 643; see also Lowe, 158 N.J. at

631.]

Although there is a notation in the records Dr. Huang was a professor of

medicine at Rutgers, there is no indication he advised decedent "both orally and

in writing" of his employment status. Similarly, there is insufficient evidence

in the record to have put decedent on notice of the employment status of Drs.

Kessler and Gorman. Dr. Huang's consultation note references "NJMS Vascular

A-1996-24

13

Surgery Consultation" but nothing more. These notations in the medical records

were insufficient to have placed decedent on notice of defendant physicians'

employment status. Moreover, after JCMC was served with a notice of claim,

it did not advise plaintiff's counsel defendant physicians were employed by

Rutgers.

Accordingly, plaintiff did not know defendants' public employment status

prior to filing his complaint and therefore, was not required at that juncture to

serve Rutgers or defendant physicians with a notice of claim. However, that

does not end our inquiry. We must next address whether plaintiff was

subsequently placed on notice regarding defendant physicians' employment

status after plaintiff filed his complaint and whether the trial court properly

determined plaintiff substantially complied with the notice provisions of the

TCA.

To prevent technical defects from barring legitimate claims, courts have

applied the equitable doctrine of "substantial compliance." See D.D., 213 N.J.

at 159-60; Lebron v. Sanchez, 407 N.J. Super. 204, 214-15 (App. Div. 2009).

"[S]ubstantial compliance means that the notice has been given in a way, which

though technically defective, substantially satisfies the purposes for which

notices of claims are required." Lebron, 407 N.J. Super. at 216 (quoting Lameiro

A-1996-24

14

v. W. N.Y. Bd. of Educ., 136 N.J. Super. 585, 588 (Law Div. 1975)). Substantial

compliance is an equitable doctrine used "to avoid the harsh consequences that

flow from technically inadequate actions that nonetheless meet a statute's

underlying purpose." Galik, 167 N.J. at 352. Parties seeking to apply the

substantial-compliance doctrine must demonstrate they took "a series of steps

. . . to comply with the statute involved," id. at 353 (quoting Bernstein v. Bd. of

Trs. of the Tchrs.' Pension & Annuity Fund, 151 N.J. Super. 71, 76-77 (App.

Div. 1977)), and "those steps achieved the statute's purpose, as for example,

providing notice," Cnty. of Hudson v. State, Dep't of Corr., 208 N.J. 1, 22

(2011). Substantial compliance applies only if the other party is not prejudiced

and there is "a reasonable explanation why there was not a strict compliance

with the statute." Galik, 167 N.J. at 353; see also Bernstein, 151 N.J. Super. at

77.

Application of the substantial-compliance doctrine in the tort-claims

context "has been limited carefully to those situations in which the notice,

although both timely and in writing, had technical deficiencies that did not

deprive the public entity of the effective notice contemplated by the statute."

D.D., 213 N.J. at 159; see, e.g., Lebron, 407 N.J. Super. at 217-19 (holding

notice that did not expressly assert a negligent-supervision theory of liability

A-1996-24

15

nevertheless substantially complied with the notice requirement of the TCA

given that it identified the plaintiff and her attorney, described and identified the

date of the incident, listed the injuries of the plaintiff, and demanded damages);

Henderson v. Herman, 373 N.J. Super. 625, 633 (App. Div. 2004) (finding notice

of claim against police dispatch and emergency transport personnel substantially

complied even though the plaintiff failed to include names of specific

dispatchers).

Here, plaintiff's claims arise from the alleged negligence of defendant

physicians who were employed by Rutgers, which was never served with a

notice of claim. Although plaintiff could be excused for not initially filing a

notice of claim on Rutgers because he was not on notice of defendant physicians'

employment status, plaintiff was put on notice after defendant physicians

answered his complaint, thereby triggering the statutory ninety-day notice

period. However, plaintiff failed to file a notice of claim during this period and

did not move to file a late notice. Despite being on notice since, at the latest,

August 2024, plaintiff took no steps to ensure the correct entity, Rutgers, was

served with a notice of claim, even though at that point, he knew of defendant

physicians' affiliation with Rutgers. Plaintiff also failed to remedy the improper

service upon JCMC, which is not a public agency.

A-1996-24

16

Even accepting the identity of defendant physicians' employer was unclear

from the medical records, that issue was clarified upon the filing of defendants'

answers, coupled with the certification from Rutgers' assistant director of

healthcare risk and claims management. Nevertheless, plaintiff failed to take

appropriate action at that juncture to serve a notice of claim on Rutgers. Plaintiff

also provides no reasonable explanation as to why he did not move to file a late

notice of claim upon learning of defendant physicians' employment status.

Relying on Lowe, plaintiff contends because defendant physicians did not

initially advise decedent about their employment status, they are now precluded

from relying on the TCA's notice defense. Lowe involved the applicability of

the TCA and its notice requirement for a doctor employed by the University of

Medicine and Dentistry of New Jersey (UMDNJ), a public entity, who treated

the plaintiff at a private hospital. 158 N.J. at 610. In reviewing the record, the

Court found "no evidence supporting the conclusion that [the plaintiff] knew

[the defendant doctor] was a UMDNJ employee." Id. at 629-30. The

"unanticipated revelation" that the doctor was a public employee was sufficient

to support a finding of extraordinary circumstances. Id. at 630.

However, in Lowe, the doctor's motion to dismiss provided the plaintiff

with her first knowledge of the doctor's employment status. See id. at 613. Here,

A-1996-24

17

however, notice was provided in defendants' answers and the certification of

Rutgers' assistant director of claims management. We deem this distinction

important because, as one commentator has observed:

The 1994 amendment of [N.J.S.A. 59:8-9] established

the requirement that a late notice of claim be filed

within a reasonable time. This makes clear that having

sufficient reasons for not filing within the [ninety]-day

period of [N.J.S.A.] 59:8-8 does not create an absolute

right to wait until the end of the one[-]year period to

seek leave to file a late notice. Rather, leave to file

must be sought within a reasonable time after the

abatement of whatever conditions created sufficient

reasons for late filing in the first place. See, e.g., Wood

v. Cnty. of Burlington, 302 N.J. Super. 371, 380 (App.

Div. 1997) (unexplained nine-month delay in filing

motion for leave to file late notice contributed to denial

of motion, brought at the end of the one-year period, for

leave to file a late notice).

[Margolis & Novack, Title 59: Claims Against Public

Entities, cmt. on N.J.S.A. 59:8-9, at 277 (2025)

(citations reformatted).]

Because plaintiff had actual knowledge of defendant physicians'

employment status upon the filing of their answers, he was obligated at that time

to move to file a late notice. However, he took no action until he responded to

defendants' motion to dismiss. Plaintiff failed to offer any explanation for the

delay other than to contend at oral argument that serving a notice of claim earlier

would "undermine" his substantial compliance argument. We are unpersuaded

A-1996-24

18

by this argument. Unlike in Lowe, the interim period here, before defendants

sought dismissal, afforded plaintiff an opportunity to remedy the prior defective

notice served on JCMC.

Defendant physicians asserted in their answers plaintiff failed to comply

with the TCA's notice provisions. Once plaintiff was provided with defendants'

answers, or the certification of the assistant director of healthcare risk and claims

management, he was vested with notice of defendants' employment status. At

that juncture, he could not idly sit by and rely on the original notice of claim

that was served on a private hospital. Plaintiff originally recognized the need to

file a notice of claim but never took steps to serve the proper entity, even after

being provided with sufficient information regarding defendants' employment

status. Therefore, plaintiff failed to demonstrate he generally complied with the

purpose of the statute or that he took a series of steps to comply with the TCA

when he was clearly advised of defendants' employment status. Accordingly,

we conclude the trial court erred in finding plaintiff substantially complied with

the TCA.

For these reasons, we reverse and remand with the direction the trial court

enter an order dismissing defendant physicians with prejudice. We do not retain

jurisdiction.

A-1996-24

19