In this medical malpractice case, the trial court ruled the fictitious pleading process under Rule 4:26-4 did not justify plaintiff's addition of three defendant physicians to the lawsuit after the statute of limitations had run. Nevertheless, the court equitably estopped the physicians from obtaining dismissal of the claims against them, finding they had had unduly delayed in moving for such dispositive relief after about a year of costly discovery had occurred.
The panel reverses the trial court's fictitious pleading ruling as to one of the three co-defendants, because decedent's hospital records did not legibly reveal that particular doctor's name and involvement in decedent's care. It was unreasonable to expect plaintiff to have ascertained that particular doctor's identity and negligent conduct until her counsel received a post-suit affidavit from the defense clarifying which doctors had actually been involved in treating decedent.
The panel affirms the trial court's fictitious pleading ruling as to the other two co-defendants. Plaintiff could have reasonably ascertained the respective identities and involvement of those two doctors who took part in decedent's care.
As an important caveat, the panel allows plaintiff's claims to proceed against those two doctors to the extent they may have acted as the decedent's "attending physician." The hospital records misleadingly and erroneously identified a different doctor, who was actually on vacation at the time, as decedent's attending physician.
Lastly, the panel overturns the court's application of principles of equitable estoppel. In the absence of a case management order or court rule prescribing an earlier deadline for filing such a motion, or an express misrepresentation made to plaintiff, defendants did not forfeit their rights to file a limitations-based dismissal motion near the end of the discovery period.