Presented by the Public Entity & Civil Rights Litigation Practice Group

Discovery Rule Applied to Permit Notice of Tort Claim Two Years After Alleged Malpractice

In Talian v. Peck, Docket No. A-2357-19, the New Jersey Appellate Court permitted a plaintiff to file a notice of a tort claim pursuant to the Tort Claims Act two years after the alleged malpractice occurred.

In September 2017, the plaintiff was admitted to Robert Wood Johnson University Hospital and diagnosed with acute right leg cellulitis. Dr. Peck performed a procedure to treat that condition. While at the hospital, the plaintiff was also diagnosed with colonic obstruction and had surgery. Over the next two years, the plaintiff had almost continuous treatment from various wound care centers and rehabilitation facilities due to these two medical conditions and treatment.

In July 2019, the plaintiff was having lunch with a friend who was a doctor. During the lunch, the plaintiff described his medical problems that had developed after his stay in the hospital, and his doctor friend was concerned about the medical treatment and care provided by Dr. Peck. The plaintiff then did his own research and discovered that Dr. Peck did not follow the standard diagnostic approach for treatment of his condition. After the plaintiff retained an attorney, a notice of tort claim was served against the public entity, Robert Wood Johnson University Hospital, and its public employee, Dr. Peck.

The New Jersey Appellate Division affirmed the lower court’s denial of the hospital’s and Dr. Peck’s motion to dismiss for failure to file a timely notice of tort claim. The Division explained the Tort Claims Act and the notice requirement (N.J.S.A. 59:8-8) to file a tort claims notice within 90 days of accrual of the cause of action: The date of accrual is generally the date of the incident on which the negligent act or omission took place. An exception to this standard is the discovery rule, which applies “where the victim either is unaware that he (or she) has been injured, or although aware of an injury, does not know that a third person is responsible.” Id. at *9 (quoting Beauchamp v. Amadio, 164 N.J. 111, 117-19 (2000)).

Prior to having lunch with his friend in July 2019, the plaintiff was never alerted that Dr. Peck may be at fault for his continual complications. The plaintiff reasonably believed that his complications were as a result of his own health issue, rather than potential malpractice of Dr. Peck. As a result, the Appellate Division tolled the accrual date by operation of the discovery rule; therefore, the plaintiff was not required to file a notice of motion to permit a late notice of claim since the notice of tort claim was timely because the plaintiff was not aware that a third person was responsible for his injuries.

The Tort Claims Act is a powerful defense for public entities and public employees; in particular, a claimant’s filing requirement to file within 90 days of an incident. It is important to consult an attorney regarding all available defenses under the Tort Claims Act if your public entity or your public employee has been sued. Please do not hesitate to contact me to discuss any issue under the Tort Claims Act. I can be reached at 856-414-6048 or you can email me at


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