JOSEPH D. MILLS VS. DR. RICHARD J. MILLSÂ (L-5549-15, BERGEN COUNTY AND STATEWIDE), A-2191-15T4

Background

Joseph D. Mills (plaintiff) sued his brother Dr. Richard J. Mills, Dr. Philip H. Tsai, Homewell Senior Care (Homewell), and a Homewell employee, claiming negligent infliction of emotional distress arising from his father’s death on May 24, 2009.
Plaintiff alleged Dr. Mills provided negligent care and manipulated staff and physicians, and that Homewell’s live-in aide fell asleep, allowing the father to remove his oxygen mask and die; plaintiff claims he witnessed the death and suffered ongoing emotional harm.
Actions: Homewell moved for summary judgment (granted Sept. 18, 2015); plaintiff’s reconsideration denied; Dr. Mills moved for summary judgment (granted Dec. 4, 2015); Dr. Tsai moved to dismiss for failure to file an affidavit of merit under the Affidavit of Merit Statute (AMS) (granted Dec. 18, 2015).
The trial judge held plaintiff’s claims against Homewell and Dr. Mills were time-barred because the causes of action accrued on May 24, 2009, and the discovery rule, substantial compliance, and equitable tolling did not apply.
The AMS required an affidavit of merit as to Dr. Tsai; plaintiff did not provide one, and plaintiff did not contest that dismissal ground on appeal.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether a Lopez (discovery-rule) hearing was required to decide accrual of plaintiff’s negligent-infliction-of-emotional-distress claims	Lopez hearing required because plaintiff claims he discovered defendants’ fault only in 2015 after reviewing records	Accrual occurred May 24, 2009; plaintiff knew or should have known then; no tolling or discovery-rule relief	Court: No Lopez hearing required; accrual was May 24, 2009; claims are time-barred
Whether plaintiff’s negligent-infliction claim survives summary judgment on substantive Portee elements	Plaintiff contends he witnessed death and suffered severe distress (but emphasizes discovery/tolling)	Defendants argue plaintiff either did not observe the death or did not suffer compensable severe distress; also barred by limitations	Court: did not reach Portee merits for Dr. Mills because statute-of-limitations bar dispositive; affirmed summary judgment on timeliness
Whether equitable doctrines (substantial compliance or equitable tolling) save plaintiff’s claims	Plaintiff argues late discovery and delay should toll limitations	Defendants argue plaintiff had requisite knowledge in 2009 and took no timely steps; equities do not favor tolling	Court: Neither substantial compliance nor equitable tolling applies; dismissal affirmed
Whether claims against Dr. Tsai were properly dismissed for failure to file an affidavit of merit under the AMS	Plaintiff did not challenge AMS dismissal on appeal	Dr. Tsai: AMS applies to alleged professional negligence and plaintiff failed to file affidavit	Court: Affirmed dismissal for failure to serve affidavit of merit

Key Cases Cited

Lopez v. Swyer, 62 N.J. 267 (1973) (discovery-rule principles governing accrual)
Globe Motor Co. v. Igdalev, 225 N.J. 469 (2016) (standard of appellate review for summary judgment)
Bhagat v. Bhagat, 217 N.J. 22 (2014) (summary judgment review standard discussed)
Henry v. N.J. Dept. of Human Servs., 204 N.J. 320 (2010) (discussion of discovery rule and accrual)
W.J.A. v. D.A., 210 N.J. 229 (2012) (viewing evidence in favor of nonmoving party on summary judgment)
Vispisiano v. Ashland Chemical Co., 107 N.J. 416 (1987) (formulation of the discovery rule)
Burd v. N.J. Tel. Co., 76 N.J. 284 (1978) (discovery rule authority)
Staub v. Eastman Kodak Co., 320 N.J. Super. 34 (App. Div. 1999) (application of discovery rule requiring reasonable diligence)
Galik v. Clara Maass Med. Ctr., 167 N.J. 341 (2001) (substantial compliance doctrine in limitations context)
Bernoskie v. Zarinsky, 344 N.J. Super. 160 (App. Div. 2001) (equitable tolling where tortfeasor was unknown for extended period)
Portee v. Jaffee, 84 N.J. 88 (1980) (elements required for negligent infliction of emotional distress claim)
Gormley v. Wood-El, 218 N.J. 72 (2014) (issues not briefed on appeal are forfeited)