In its unpublished opinion filed on February 1, 2017, the Commonwealth of Massachusetts Appeals Court (“Appellate Court”) rejected as having been filed too late the plaintiff’s medical malpractice complaint that alleged that the defendant primary care physician had failed to advise the plaintiff with regard to a suspicious mass found on an abdominal CT scan in 2002 that was determined to be cancerous in 2013.
The Plaintiff’s Alleged Facts
In 2002, the medical malpractice plaintiff had a CT scan for complaints in his lower right abdomen that revealed a mass in his left kidney. The radiologist stated that medical follow-up was necessary but no one at the hospital told the plaintiff about the mass. The hospital sent the CT scan films and radiology report to the defendant primary care physician, who was the plaintiff’s primary care physician until 2011.
The plaintiff had periodic visits with the defendant primary care physician from 2002 to 2011 but the defendant failed to mention the mass to the plaintiff or discuss the need for further analysis or treatment (the plaintiff also had an X-ray in 2002 that revealed a lesion on his left kidney but believed that the lesion was scar tissue related to a bicycle accident that happened thirty years earlier that resulted in a severe injury to his left kidney, based on conversations he had with other physicians at that time).
The plaintiff switched primary care physicians in 2011. In 2013, the plaintiff began experiencing right-sided abdominal pain that he believed to be related to a hernia. During a work-up for the hernia, a CT scan was performed that revealed an 8.2 centimeter mass on the plaintiff’s left kidney. The mass was later determined to be cancerous and, due to its size, could not be excised. As a result, the plaintiff’s left kidney was surgically removed in 2014.
The plaintiff filed his Massachusetts medical malpractice lawsuit against his prior primary care physician in September 2014, alleging that the defendant was negligent in not following up on the CT scan and in not ordering a biopsy of the mass in 2002 or anytime thereafter. The defendant moved to dismiss, arguing that the plaintiff’s medical malpractice complaint was filed more than twelve years after the allegedly negligent acts occurred and therefore was barred by the applicable statute of repose (G. L. c. 260, § 4). The judge granted the defendant’s motion and the plaintiff appealed.
The Massachusetts Statute Of Repose
The Massachusetts Statute of Repose that applies to medical malpractice actions states that “in no event shall any such action be commenced more than seven years after occurrence of the act or omission which is the alleged cause of the injury upon which such action is based except where the action is based upon the leaving of a foreign object in the body.” G. L. c. 260, § 4, inserted by St. 1986, c. 351, § 30.
The Appellate Court stated that the purpose of a statute of repose is to place an absolute time limit on the liability of those within its protection and to abolish a plaintiff’s cause of action thereafter, even if the plaintiff’s injury does not occur, or is not discovered, until after the statute’s time limit has expired. In the case the Appellate Court was deciding, the act or omission that allegedly caused the plaintiff’s injury was the defendant’s failure in 2002 to follow up on the plaintiff’s CT scan and order a biopsy. Thus, the Appellate Court held, to be within the seven-year statute of repose, the plaintiff would have had to file his medical malpractice complaint no later than 2009, which he failed to do.
The Appellate Court rejected the plaintiff’s argument that, under the discovery rule, his claim did not accrue until 2013, when he was first told the mass was cancerous, because, the Appellate Court stated, the discovery rule does not apply to a statute of repose (as opposed to a statute of limitations). The Appellate Court also rejected the plaintiff’s argument that the continuing treatment doctrine saved his medical malpractice claim because statutes of repose are not subject to any form of equitable tolling.
Source Carr v. Pearl, 16-P-143.
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