A plaintiff may proceed with a medical malpractice law suit, despite a late tort claim notice, when the court finds “extraordinary circumstances” existed.

The trial court dismissed the plaintiff’s case for failure to provide a timely notice of tort claim. On appeal, the Appellate Division reversed the trial court’s decision, finding that “extraordinary circumstances” existed due to a “perfect storm” of factors that contributed to the plaintiff’s late filing. In this fact sensitive case, the Appellate Division detailed the series of life-threatening infections the plaintiff faced after childbirth. These infections, combined with her duties in caring for her newborn son, as well as her status as a recent immigrant, “does constitute a combination of facts which together total extraordinary circumstances.” The Appellate Division held that the effect of these factors warranted a waiver of the 90-day notice of claim deadline under the Tort Claims Act. The Appellate Division found the trial court judge had misapplied her discretion in failing to consider and appreciate “the significance of probative, competent evidence” relating to the “collective impact” of all of the circumstances. Therefore, the Appellate Division reversed the trial court’s decision, holding the combination of factors in the plaintiff’s life to equal extraordinary circumstances.

This decision demonstrates a willingness by the Appellate Division to examine a number of factors to reach what constitutes “total extraordinary circumstances.” Also of note, the trial court judge failed to make any factual findings on the record. If the trial court had made the requisite findings, the Appellate Division implied in its decision that it would have utilized an abuse of discretion of standard. However, because no factual findings were made, a less stringent standard was utilized. 

_{Case Law Alerts, 3rd Quarter, July 2019}

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