Parr v. Rosenthal , 475 Mass. 368 ( 2016 )

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SJC-12014
MICHAEL PARR1 & another2 vs. DANIEL ROSENTHAL.
Essex. April 5, 2016. - September 2, 2016.
Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, &
Hines, JJ.3
Limitations, Statute of. Medical Malpractice, Statute of
limitations. Negligence, Doctor, Medical malpractice.
Civil action commenced in the Superior Court Department on
March 9, 2009.
The case was tried before Thomas R. Murtaugh, J., and a
motion for a new trial was heard by him.
After review by the Appeals Court, the Supreme Judicial
Court granted leave to obtain further appellate review.
Myles W. McDonough (James S. Hamrock, Jr., with him) for
the defendant.
David J. Gallagher for the plaintiffs.
1
As parent and next friend of William Parr.
2
Michele Parr, as parent and next friend of William Parr.
3
Justice Cordy participated in the deliberation on this
case and authored his separate opinion prior to his retirement.
Justices Spina and Duffly participated in the deliberation on
this case prior to their retirements.
2
Annette Gonthier Kiely, Adam R. Satin, & Thomas R. Murphy,
for Massachusetts Academy of Trial Attorneys, amicus curiae,
submitted a brief.
John J. Barter, for Professional Liability Foundation,
Ltd., amicus curiae, submitted a brief.
GANTS, C.J. The plaintiffs commenced this medical
malpractice action against the defendant in the Superior Court
for his alleged negligence in connection with a "radio frequency
ablation" (RFA) procedure he performed on the leg of their minor
son, which caused severe burning and eventually resulted in the
amputation of the child's leg. The jury did not reach the issue
of negligence because they found that, more than three years
before the plaintiffs filed the action, they knew or reasonably
should have known that the child had been harmed by the
defendant's conduct, so the action was barred by the statute of
limitations for medical malpractice claims.
The plaintiffs contend that the jury should have been
instructed on the so-called "continuing treatment doctrine"
applicable to medical malpractice claims, a doctrine that
heretofore has not been recognized under Massachusetts law.
Generally speaking, the doctrine states that a cause of action
does not accrue, and therefore the statute of limitations clock
does not begin to run, for medical malpractice claims during the
period that an allegedly negligent physician continues to treat
the patient for the same or a related condition. See, e.g.,
3
Borgia v. New York, 12 N.Y.2d 151, 156-157 (1962). We now
recognize the doctrine under Massachusetts law and hold that the
statute of limitations for a medical malpractice claim generally
does not begin to run while the plaintiff and the defendant
physician continue to have a doctor-patient relationship and the
plaintiff continues to receive treatment from the physician for
the same or a related condition. We also hold that the
continuing treatment exception to the discovery rule terminates
once a patient (or the parent or guardian of a minor patient)
learns that the physician's negligence was the cause of his or
her injury. We further hold that, once the allegedly negligent
physician no longer has any role in treating the plaintiff, the
continuing treatment doctrine does not apply even if the
physician had at one time been part of the same "treatment team"
as the physicians who continue to provide care. Here, where the
jury found that the plaintiffs knew or reasonably should have
known more than three years before commencing suit that they had
been harmed by the conduct of the defendant, and where the
defendant's participation in treating the plaintiff ended more
than three years before the suit was filed, the cause of action
accrued more than three years before the action was commenced
and therefore was not timely under the statute of limitations.
We thus affirm the judgment in favor of the defendant.4
4
We acknowledge the amicus briefs submitted by the
4
Background. We recite the facts in the light most
favorable to the plaintiffs. See Lipchitz v. Raytheon Co., 434
Mass. 493, 499 (2001). William Parr was born on September 3,
1994.5 At birth, he had a large lump at the back of his right
calf. Within a few weeks, he was taken by his parents, Michele
Parr and Michael Parr, to Massachusetts General Hospital (MGH),
where he was referred to the "sarcoma group" for imaging studies
and a biopsy. The sarcoma group is a team of orthopedic
surgeons, general surgeons, radiation oncologists, medical
oncologists, and others who treat tumors of the connective
tissues, including bones, muscles, fat, nerves, and other
tissues. The sarcoma group works on an interdisciplinary model.
The team members meet twice weekly and have "very close
interdisciplinary relationships."
Initially, William's lump was diagnosed by the sarcoma
group as a "hamartoma."6 By January, 2003, when William was
eight years old, the size of the lump had increased, causing
Massachusetts Academy of Trial Attorneys and the Professional
Liability Foundation, Ltd.
5
Because the child and his parents have the same last name,
we refer to each by his or her first name.
6
A "hamartoma" is a benign tumor-like malformation
resulting from faulty development in an organ and composed of an
abnormal mixture of tissue elements that develop and grow at the
same rate as normal elements but are not likely to compress
adjacent tissue. See Stedman's Medical Dictionary 849 (28th ed.
2006).
5
William occasionally to limp. At that time, Dr. Mark Gebhardt,
a member of the sarcoma group at MGH, performed a biopsy in
which he removed pieces of the lump for the pathologist to
examine. Gebhardt determined that the lump was engulfing much
of William's calf muscle and was having an impact on his nerves
and blood vessels. At this time, it was determined that the
lump was a "desmoid tumor." Desmoid tumors are relatively rare,
benign tumors but can grow in such a way as to infiltrate normal
tissue and impair bodily functions.
Soon after the biopsy, Gebhardt left MGH. William's care
was assumed by Dr. David Ebb, a pediatric oncologist, and Dr.
Kevin Raskin, an orthopedic surgeon, both of whom were on the
staff at MGH and were members of the sarcoma group. At some
point prior to November, 2005, Raskin and Ebb proposed and
scheduled a surgery on William's tumor, which at this point had
caused abnormality in his gait. Meanwhile, Michele continued to
research other options, and she discussed the possibility of RFA
treatment with Ebb and Raskin.7 After one of the meetings of the
7
Radio frequency ablation (RFA) involves the insertion of a
long probe with expandable heating tines that generate high
frequency electrical current to burn or "cook" the target, here
the tumor. There are a number of limitations to the procedure:
(1) the "ablation" or burn zone is constrained by the size of
the device used and the blood flow to the area, limiting the
ablation to the spherical area immediately surrounding the
tines; (2) the RFA procedure does not distinguish between a
targeted tumor and other healthy, critical structures -- it
burns everything in its reach; and (3) it is impossible to
6
sarcoma group, Raskin and Ebb approached the defendant, Dr.
Daniel Rosenthal, about the possibility of performing RFA on
William's desmoid tumor. Rosenthal was a board certified
radiologist on the staff at MGH and had been a member of the
sarcoma group since 1978. He "invented" RFA, meaning that he
was the first physician to use RFA to treat a tumor, and was a
recognized leader in the field.8 Through the sarcoma group, he
was generally familiar with William's case. Raskin and Ebb then
put Michele in touch with Rosenthal. They told Michele that
Rosenthal "was the best doctor in the business basically. He
was . . . one of the founders of radiofrequency ablation and had
worked at [MGH] for a long time." Rosenthal eventually agreed
predict precisely the extent of the zone of ablation. The
procedure involves the use of a tourniquet to limit the blood
flow into the area of the procedure.
8
Dr. David Ebb testified that he and Dr. Kevin Raskin
"regularly worked with [Dr. Daniel Rosenthal] in the context of
[their] delivering care to patients . . . and were both well
aware that Dr. Rosenthal had been one of the pioneers in
applying this technique . . . and felt that he was the best
resource [they] had with whom to confer regarding this option in
[William's] case." Raskin testified that, when Michele first
inquired about the possibility of treating William with RFA, he
told her, in effect, "[I]t turns out we have . . . the world's
expert here at MGH who does radiofrequency ablation and maybe we
can come up with a plan to use radiofrequency ablation to treat
this tumor." Raskin further testified that he knew Rosenthal
"as part of [their] group at MGH." He continued, "[W]e have
. . . very close interdisciplinary relationships. I mean, I
can't function as an orthopedic oncologist without . . . Dr.
Rosenthal, the radiology group helping me interpret imaging, or
the pathologists helping me interpret slides." He described his
relationship with Rosenthal and the group as a "very close, very
active relationship."
7
to perform the procedure and it was presented and approved at
subsequent sarcoma group meetings. Rosenthal had never
performed RFA on a desmoid tumor before performing the procedure
on William, and as of the date of trial had not performed
another RFA on a desmoid tumor.
Prior to the procedure, Rosenthal told Michele that the
procedure was reasonable and could help William. Michele
testified that Rosenthal told her that RFA could "kill" the
tumor, but he did not explain any risks of the procedure.
Rosenthal said the procedure would be a day surgery, that
William would come out with "band-aids" at the sites where the
probe had gone in, and that he would be home by the afternoon.
Michael brought William to MGH on the morning of November
4, 2005, for the RFA procedure, and Michele arrived soon
thereafter. Rosenthal briefly showed Michael and William a
drawing describing the procedure, demonstrating the location of
the tumor and other areas he was going to treat. Michael signed
a consent form, which listed the risks of the procedure,
including bleeding, infection, nerve damage, and failure to
cure. The form did not disclose any risk of burns to the skin,
blood vessels, or other vital structures. Moreover, the risks
associated with the use of a tourniquet were not mentioned.
Rosenthal completed the first three of his planned four
ablations when he noticed what he described as "superficial skin
8
blisters" in the area behind William's knee. At that point,
despite not having completed all of the planned ablations,
Rosenthal realized that he had already burned more than the
entire planned treatment area. On seeing the burned area behind
William's knee, Rosenthal then stopped the procedure and called
two other sarcoma group members, Ebb and Raskin, to the
operating room. A decision was made to discontinue the
procedure.
Ebb explained to Michael and Michele that there had been a
complication during the procedure, and that William had suffered
a burn above the tumor site. Michele testified that she was not
told the cause of the burn or how serious it was, but was told
that William "would recover and be fine." Michael testified
that he and Michele did not know how serious the burn was at
first and that he "never knew" how bad the burn was. Rosenthal
originally described it to them as a "superficial burn." Raskin
referred to the burn as a "superficial blister" in his notes on
the day of the RFA procedure.
William was admitted to MGH for one week after the RFA
procedure and was then transferred to Spaulding Rehabilitation
Hospital (Spaulding) for an additional five weeks. Rosenthal
visited William every day during his week-long stay at MGH and
several more times at Spaulding. Rosenthal's last note in
William's medical file, made during a visit on November 7, 2005,
9
states that there was "clear improvement in his nerve function."
In fact, by that time, the nerves had been irreparably damaged
from the burn. The burned area ultimately grew to full
thickness, creating a very foul smelling, necrotic blackened
hole in the back of William's knee that spanned the entire area
of the knee from medial to lateral. The nerves were destroyed.
When William returned home from Spaulding, he received in-
home physical therapy, and a visiting nurse provided medical
care. He also continued to receive care from the sarcoma group.
The burn did not heal during this period despite efforts
throughout the winter that were directed by Raskin. The burn
eventually became infected, and William was readmitted to MGH in
February, 2006. Raskin performed debridements of the burn. On
March 19, 2006, after the seventh debridement, it became clear
that William's leg could not be saved, and his parents were told
that amputation below the knee was necessary. On March 20,
2006, William's leg was amputated below the knee.
About two years later, a second amputation, this one above
the knee, became necessary because of continued infections, and
because there was insufficient muscle preserved to enable use of
a prosthesis or to make the knee functional. Thus, on March 12,
2008, Raskin performed an amputation above the knee on William's
right leg. According to Rosenthal's testimony at trial, the
need for the amputations was a direct result of the complication
10
that occurred during the RFA procedure. Neither Ebb, Raskin,
nor Rosenthal at any time described to the Parrs what had caused
the burn and the resulting injuries. Michael was told that it
was simply an "anomaly." The Parrs did not know what had
happened, despite asking repeatedly. As Michael testified, "We
trusted them, we worked with them and we did not know."
Michele and Michael, as parents and next friends of
William, filed a civil complaint in the Superior Court on March
9, 2009, alleging malpractice by Rosenthal with respect to the
RFA procedure performed by him on November 4, 2005.9 The case
proceeded to a jury trial. Because, under G. L. c. 231, § 60D,
a medical malpractice action brought on behalf of a minor who is
at least six years old must "be commenced within three years
from the date the cause of action accrues," the defendant argued
that he was entitled to judgment because the action was not
timely filed. At the charge conference and in his proposed jury
instructions, the plaintiffs' counsel argued that the statute of
limitations was tolled while William's treatment was continuing.
Relying on the continuing treatment doctrine, he argued that a
cause of action for medical malpractice does not accrue until
9
The action was brought solely on behalf of William;
neither Michele nor Michael claimed loss of consortium.
11
treatment of a plaintiff by a defendant doctor, or doctors with
whom he works, has terminated.10
The judge declined to give such an instruction. He
correctly stated that Massachusetts had not yet recognized the
continuing treatment doctrine. He further stated that he "would
suggest" that Massachusetts would not "adopt that theory," and
that, in any event, the doctrine would not apply to the facts of
this case. The judge said the defendant "rendered a very
specific treatment" and "[t]hat was it"; "[h]e was not involved
in the treatment of William after that." In response to
counsel's argument that the cause of action did not accrue while
the plaintiff was being treated by the "treatment team" of which
the defendant was a member, the judge noted that no
Massachusetts case had taken that position in a medical
malpractice case.
10
The jury instruction proposed by the plaintiffs, which
quoted the legal malpractice case of Murphy v. Smith, 411 Mass.
133, 137 (1991), quoting Greene v. Greene, 56 N.Y.2d 86, 94
(1982), stated:
"Further, the law recognizes that, 'a person seeking
professional assistance has a right to repose confidence in
the professional's ability and good faith and realistically
cannot be expected to question and assess the techniques
employed or the manner in which services are rendered,'
while he is still being treated for the same injuries. The
law recognizes that it is not reasonable to expect a
patient to sue her doctor while she is being treated by
him, or doctors with whom he works, while she is being
treated by them for the same injury. The [p]laintiff's
cause of action does not accrue until treatment for the
injuries has been terminated." (Footnotes omitted.)
12
As to the question whether the claim was timely brought
within the statute of limitations, the judge instructed the jury
as follows:
"Ordinarily a personal injury claim must be
brought within three years of the date the cause of
action accrues or arises. Here, this case was
commenced on March 6, 2009.[11] The question is whether
the claim was brought within three years after the
date on which the cause of action arose. The general
rule is that a cause of action accrues on the date of
the plaintiff's injury[,] in this case, William's
injury. However, that rule does not apply where the
plaintiff did not know or could not reasonably have
known of the cause of action. . . . [T]he question
comes down to whether the plaintiffs knew or should
have known that William Parr had been harmed to an
appreciable or not insignificant extent by Dr.
Rosenthal's conduct."
The judge also explained the meaning of "should have known"
in this context:
"An action for medical malpractice accrues when a
reasonably prudent person in the plaintiff's position
reacting to any suspicious circumstances for which
they might have been aware should have discovered that
his medical care given by the physician may have
caused . . . William appreciable or not insignificant
injury or harm. Certainty of causation is not
required. Rather, notice of likely cause is
sufficient to start the statute running[,] imposing on
the potential litigant the duty to discover from
legal, scientific and medical communities whether a
theory of causation supports a legal claim."
11
The complaint was actually filed on March 9, 2009, but no
12
counsel objected to the reference to March 6. The
limitation and repose periods for medical malpractice claims
brought on behalf of adults, established by G. L. c. 260, § 4,
are essentially identical. Section 4 provides in relevant part:
13
Plaintiffs' counsel timely objected to the judge's decision not
to give a continuing treatment instruction regarding the statute
of limitations.
The jury answered "yes" to the first special verdict
question: "Did the plaintiffs know or should they reasonably
have known prior [to] March 6th, 2006, that they had been . . .
harmed by the conduct of the defendant?" Because they answered
"yes" to this question, they did not reach the other questions,
including whether the defendant was negligent and, if so,
whether his negligence was a substantial contributing factor in
causing William's injury. Judgment entered for the defendant.
The plaintiffs moved for a new trial, claiming that the judge
erred by failing to furnish the jury with the continuing
treatment instruction. The judge denied the motion. The
plaintiffs appealed from the judge's decision not to give the
continuing treatment instruction, and from the denial of their
motion for a new trial.
The Appeals Court reversed the judgment and remanded the
case for a new trial. Parr v. Rosenthal, 87 Mass. App. Ct. 787
(2015). Relying by analogy on this court's adoption of the
"continuing representation" doctrine in legal malpractice cases,
see, e.g., Murphy v. Smith, 411 Mass. 133, 137 (1991), the
Appeals Court recognized the "continuing treatment" doctrine in
medical malpractice cases. The court held that the limitations
14
period does not begin to run during the continuing treatment of
a patient for the same injury on which the action for medical
malpractice is based. See Parr, supra at 788, 792-793. The
court also declared that the continuing treatment doctrine "will
toll the statute of limitations so long as the patient remains
in continuous treatment for the injury by the same physician or
group, or under the general control of that physician or group,
subject to the statute of repose." Id. at 797.
In cases alleging legal malpractice, the statute of
limitations, although tolled under the continuing representation
doctrine, nevertheless begins to run once a client acquires
actual knowledge that he or she has suffered appreciable harm as
a result of the attorney's conduct. See, e.g., Lyons v. Nutt,
436 Mass. 244, 249-250 (2002). The Appeals Court, however, held
that in medical malpractice cases "actual knowledge should not
bar application of the continuing treatment doctrine so long as
the patient is continuing treatment in good faith and not solely
to allow more time to develop their malpractice case." Parr,
supra at 798. We granted the defendant's application for
further appellate review.
Discussion. To state a claim for medical malpractice, a
plaintiff must demonstrate that (1) the plaintiff suffered harm;
(2) the harm was caused by the defendant physician's conduct;
and (3) the defendant physician was negligent, which in medical
15
malpractice cases means that the physician committed a breach of
the "standard of care and skill of the average member of the
profession" practicing in his or her specialty. See Bradford v.
Baystate Med. Ctr., 415 Mass. 202, 206-208 (1993), quoting Brune
v. Belinkoff, 354 Mass. 102, 109 (1968). Where a defendant
raises the statute of limitations as an affirmative defense, the
plaintiff also bears the burden of proving that the action was
timely commenced. See Franklin v. Albert, 381 Mass. 611, 619
(1980). The limitation and repose periods for medical
malpractice claims brought on behalf of minors over the age of
six are established by G. L. c. 231, § 60D, which provides in
relevant part:
"[A]ny claim by a minor against a health care
provider stemming from professional services or health
care rendered, whether in contract or tort, based on
an alleged act, omission or neglect shall be commenced
within three years from the date the cause of action
accrues . . . , but in no event shall 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."12
12
The limitation and repose periods for medical malpractice
claims brought on behalf of adults, established by G. L. c. 260,
§ 4, are essentially identical. Section 4 provides in relevant
part:
"Actions of contract or tort for malpractice,
error or mistake against physicians [and] surgeons . .
. shall be commenced only within three years after the
cause of action accrues, but in no event shall any
such action be commenced more than seven years after
occurrence of the act or omission which is the alleged
16
The statute of repose is not at issue in this case. The
plaintiffs' claim clearly was brought within seven years of
William's RFA treatment. The defendant does not claim
otherwise. The key question is whether the claim was timely
brought within the statute of limitations, i.e., within three
years of when the cause of action accrued.
A statute of limitations typically prescribes the time
period when an action must be commenced after the cause of
action "accrues." The statute sets the limitations period, but
in the absence of explicit legislative direction, it is our
common law that determines when a cause of action accrues, and
hence when the limitations period actually begins to run. See
Franklin, 381 Mass. at 617 ("Absent explicit legislative
direction, the determination of when a cause of action accrues,
causing the statute of limitations to run, has long been the
product of judicial interpretation in this Commonwealth"). In
Franklin, supra at 619, we held that the discovery rule applies
to the statute of limitations for medical malpractice claims.13
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."
13
By the time we decided Franklin v. Albert, 381 Mass. 611,
619 (1980), we had already applied the discovery rule to other
causes of action. See, e.g., Friedman v. Jablonski, 371 Mass.
482, 485 (1976) (fraudulent misrepresentations in sale of real
estate); Hendrickson v. Sears, 365 Mass. 83, 83-84 (1974) (legal
malpractice).
17
Under the discovery rule, medical malpractice claims "accrue"
"when the plaintiff learns, or reasonably should have learned,
that he has been harmed by the defendant's conduct." Id. "In
determining whether a party has sufficient notice of causation,
our inquiry is whether, based on the information available to
the plaintiff, a reasonably prudent person in the plaintiff's
position should have discovered the cause of his or her
injuries." Lindsay v. Romano, 427 Mass. 771, 774 (1998),
quoting McGuinness v. Cotter, 412 Mass. 617, 628 (1992). "We do
not require that a plaintiff have notice of a breach of a duty
before a cause of action may accrue . . . ." Bowen v. Eli Lilly
& Co., 408 Mass. 204, 208 (1990). See Lindsay, supra ("It is
not necessary that the plaintiff have notice that the defendant
was actually responsible for the injury, only that she have
knowledge or sufficient notice that the medical care given by
the defendant may have caused the injury"). In essence, under
our common law, once a patient knows or reasonably should know
that he or she has suffered harm and that the harm was caused by
the physician's conduct, the statute of limitations clock starts
to run, and the patient then has three years to discover whether
the physician committed a breach of the standard of care and
whether the theory of causation is supported by the evidence,
and, if so, to commence a civil suit. See Bowen, supra at 208,
quoting Fidler v. Eastman Kodak Co., 714 F.2d 192, 199 (1st Cir.
18
1983) ("Thus on notice, the potential litigant has the duty to
discover from the legal, scientific, and medical communities
whether the theory of causation is supportable and whether it
supports a legal claim").
1. Continuing treatment doctrine. The plaintiffs argue
that Massachusetts should recognize the continuing treatment
doctrine, which provides that a cause of action does not accrue
while the patient is continuing to receive treatment for the
same or related injury or illness from the same physician who
allegedly caused the patient harm. See Otto v. National Inst.
of Health, 815 F.2d 985, 988 (4th Cir. 1987), and cases cited
(in claims brought under Federal Tort Claims Act, "where there
has been a course of continuous medical treatment, a claim may
not accrue until the end of that course of treatment, if the
treatment has been for the same illness or injury out of which
the claim for medical malpractice arose"). See also Borgia, 12
N.Y.2d at 155-156. The rationale for the doctrine appears to be
two-fold. First, a patient who continues a physician-patient
relationship impliedly continues to have trust and confidence in
the physician, and this trust and confidence put "the patient at
a disadvantage to question the doctor's techniques," Barrella v.
Richmond Mem. Hosp., 88 A.D.2d 379, 384 (N.Y. 1982), and impair
"the patient's ability to make an informed judgment as to
negligent treatment." Harrison v. Valentini, 184 S.W.3d 521,
19
525 (Ky. 2005). See Otto, supra ("The continuous treatment
doctrine is based on a patient's right to place trust and
confidence in his physician. . . . [T]he patient is excused
from challenging the quality of care being rendered until the
confidential relationship terminates"). Second, where there is
a poor medical result from a physician's treatment or procedure,
a patient is entitled to allow the physician an adequate
opportunity to remedy or mitigate the poor result without
needing to risk interruption of that course of treatment by
exploring whether the poor result arose from that physician's
negligence. See id. ("the doctrine permits a wronged patient to
benefit from his physician's corrective efforts without the
disruption of a malpractice action"); Barrella, supra (patient
is entitled "to rely upon the doctor's professional skill
without the necessity of interrupting a continuing course of
treatment by instituting suit").
In Murphy v. Smith, 411 Mass. 133, 137 (1991), we adopted
an analogous "continuing representation" rule for legal
malpractice claims. The plaintiffs in that case had received a
letter from their neighbors' attorney in 1983, informing them
that they did not have good title to property they had
purchased. Id. at 135. The plaintiffs then contacted the
defendant, the bank's attorney who had certified good record
title when they purchased the property. Id. The defendant
 20
assured them that the letter "did not present a cause for
concern and that he would take care of it." Id. at 137. The
court determined that the defendant's legal representation of
the plaintiffs began with this assurance, and ended in 1985,
when they retained a new attorney. Id. at 135, 137. They
commenced a legal malpractice action against the defendant in
1987. Id. at 135. If the discovery rule applied without
exception, the three-year statute of limitations would have
begun to run at the time the plaintiffs received the letter from
their neighbors' attorney, i.e., when they were put on notice of
the alleged defect in their title, and their malpractice claim
against the defendant would have been time barred.
The court in Murphy adopted the continuing representation
doctrine as an exception to the discovery rule, holding that the
doctrine "tolls the statute of limitations in legal malpractice
actions where the attorney in question continues to represent
the plaintiff's interests in the matter in question." Id. at
137. The statute of limitations in that case thus did not begin
to run until 1985, when the defendant's representation of the
plaintiffs ended. The continuing representation doctrine
"recognizes that a person seeking professional assistance has a
right to repose confidence in the professional's ability and
good faith, and realistically cannot be expected to question and
assess the techniques employed or the manner in which the
21
services are rendered." Id., quoting Cantu v. Saint Paul Cos.,
401 Mass. 53, 58 (1987).
The reasoning we embraced in Murphy, supra, in adopting the
continuing representation exception to the discovery rule in
legal malpractice claims also justifies the adoption of a
continuing treatment exception to the discovery rule in medical
malpractice claims. Under the discovery rule, we ordinarily
start the clock when the patient knows or has reason to know
that he or she has been harmed by the physician's conduct; we
consider such knowledge or reason to know sufficient to trigger
the patient's "duty to discover" within the three-year
limitations period whether the physician committed a breach of
the standard of care and was the legal cause of the patient's
injury. See Bowen, 408 Mass. at 208-210. However, while that
physician continues to treat the patient for the same or related
injury or illness, the physician's patient, like an attorney's
client, "realistically cannot be expected to question and assess
the techniques employed or the manner in which the services are
rendered." Murphy, supra at 137. Just as we recognize that a
represented party is entitled to retain confidence in his or her
legal counsel's "ability and good faith" while the
representation continues, so, too, do we recognize that a
patient is entitled to retain confidence in his or her
physician's ability and good faith while continuing treatment
22
with that physician. The legal client is disadvantaged in
learning whether his or her attorney has committed a breach of
the standard of care while that attorney continues to represent
the client, and so, too, is a patient disadvantaged in learning
whether a physician has committed a breach of the standard of
care while the physician continues to treat the patient. And
just as a wronged client is permitted to benefit from his or her
attorney's efforts to correct a problem without the disruption
of exploring the viability of a legal malpractice action, so,
too, is a patient permitted that same benefit without the
disruption of exploring the viability of a medical malpractice
action.
Moreover, there is no "explicit legislative direction" that
precludes us from recognizing a continuing treatment exception
in determining when a medical malpractice cause of action
accrues. See Franklin, 381 Mass. at 617. As the Appeals Court
correctly noted, the Legislature used almost identical language
to describe the limitations period for medical malpractice
claims and for legal malpractice claims. See Parr, 87 Mass.
App. Ct. at 793. Compare G. L. c. 231, § 60D (medical
malpractice claim by minor who is at least six years old "shall
be commenced within three years from the date the cause of
action accrues"), and G. L. c. 260, § 4, second par. (medical
malpractice claim by adult "shall be commenced only within three
23
years after the cause of action accrues"), with G. L. c. 260,
§ 4, first par. (legal malpractice claim "shall be commenced
only within three years next after the cause of action
accrues"). See generally Harlfinger v. Martin, 435 Mass. 38, 49
(2001) (noting that discovery rule principles applicable to
other types of tort claims also applied to medical malpractice
claims). The only differences in the language of the statutes
are slight and insignificant. Given the nearly identical
wording of the provisions, there is no reason to conclude that
our interpretation of when a cause of action "accrues" in legal
malpractice cases should not have its analog in medical
malpractice claims.
The defendant argues that the adoption of the continuing
treatment doctrine would constitute "improper judicial
legislation," urging us to infer from the absence of legislation
on the doctrine that the Legislature has rejected it. The
defendant points to nothing in the record of the Legislature,
however, that suggests that its silence on the subject reflects
a conscious choice to reject the continuing treatment doctrine.
We decline to interpret the absence of legislative action as an
affirmative rejection of the doctrine that bars us from adopting
the continuing treatment doctrine as a common-law interpretation
24
of when a cause of action "accrues" in a medical malpractice
case.14
Our adoption of the continuing treatment doctrine does not
affect the statute of repose that applies to medical malpractice
claims, which provides that "in no event shall 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. 231, § 60D.
The effect 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" (citation omitted).
Rudenauer v. Zafiropoulos, 445 Mass. 353, 357 (2005).
14
The defendant has not identified any proposed bill to
create a continuing treatment exception to the discovery rule in
medical malpractice cases that the Legislature failed to enact.
But even if the Legislature had, we would not necessarily
interpret its failure to enact such legislation as demonstrating
an affirmative legislative rejection of such an exception. In
Franklin v. Albert, 381 Mass. 611, 617 (1980), we noted that
several bills that would have amended G. L. c. 260, § 4, to
include a discovery rule had been proposed and rejected by the
Legislature, but we declined to "read the failure to enact these
bills as necessarily disapproving, in principle, a discovery
rule." We recognized that, "[t]he practicalities of the
legislative process furnish many reasons for the lack of success
of a measure other than legislative dislike for the principle
involved in the legislation." Id. at 615-616, quoting Berry v.
Branner, 245 Or. 307, 311 (1966).
25
Therefore, in this case, the plaintiffs' cause of action would
have been barred by the statute of repose had it been brought
more than seven years after November 4, 2005, the date of the
RFA procedure, even if the cause of action had yet to accrue
under the continuing treatment doctrine.15,16
15
The defendant contends, in a single short paragraph at
the end of his brief, that if we adopt the continuing treatment
doctrine we should only do so prospectively because it would be
"a drastic change" in the current law on accrual of causes of
action. Assuming that this constitutes adequate appellate
argument, we disagree. As the foregoing discussion shows, the
continuing treatment doctrine in medical malpractice cases is a
logical and foreseeable application of the same basic principles
that underlie the continuing representation doctrine in legal
malpractice cases, which has been in effect at least twenty-five
years. See Murphy, 411 Mass. at 137. There is nothing
"drastic" or radically new about it.
16
The dissent claims that our recognition of the continuing
treatment doctrine "intrudes into a critically important sphere
of health care policymaking and makes [our] own preferred policy
judgment without any inkling of the effect it might have on the
cost of health care in Massachusetts, a matter of acute concern
to the executive and legislative branches of government." Post
at . This criticism rests on three fallacies. First, the
dissent assumes that the continuing treatment doctrine will
dramatically increase the cost of health care by significantly
increasing the cost of medical malpractice insurance to health
care professionals. Some perspective is in order. The
continuing treatment doctrine will permit adjudication on the
merits of medical malpractice claims that were filed more than
three years after a plaintiff learned, or reasonably should have
learned, that he or she has been harmed by a physician's
conduct, but fewer than seven years after the occurrence of the
allegedly negligent act, where the patient continues to be
treated for the same or related condition by the allegedly
negligent physician. There is no reason to believe, let alone
adequate factual information in the record to support a belief,
that adoption of the doctrine will affect enough claims to have
any meaningful impact on the cost of medical malpractice
insurance.
26
2. Effect of actual knowledge on continuing treatment
doctrine. In Lyons v. Nutt, 436 Mass. 244, 250 (2002), we held
that the continuing representation exception to the discovery
rule in a legal malpractice case terminates once "the client
actually knows that he suffered appreciable harm as a result of
his attorney's conduct." We reasoned that once "the client has
such knowledge, then there is no 'innocent reliance which the
continued representation doctrine seeks to protect.'" Id.,
quoting Cantu, 401 Mass. at 58. The defendant urges us to apply
Second, the dissent assumes, without any factual basis,
that the Legislature prefers that the few patients who would be
affected by the continuing treatment doctrine should be denied
the opportunity to receive any compensation for their
physician's negligence in order to avoid the remote possibility
that adoption of the continuing treatment doctrine would
significantly affect the cost of medical malpractice insurance.
Third, although the Legislature has consistently remained
silent as to when a cause of action accrues, leaving that to be
determined by the courts under the common law, and although the
dissent recognizes that we made clear in Franklin, 381 Mass. at
617, that "[a]bsent explicit legislative direction, the
determination of when a cause of action accrues, causing the
statute of limitations to run, has long been the product of
judicial interpretation in this Commonwealth," the dissent
assumes that we can and should infer from the Legislature's
silence that it has made a "policy judgment" to reject the
continuing treatment doctrine. To adopt the dissent's inference
from silence would contradict this statement in Franklin and
invite all the confusion that arises from an inference based on
legislative silence. Moreover, if any inference is to be made
from silence, we can infer from the absence of "explicit
legislative direction" as to when a cause of action accrues that
the Legislature has been content to leave this matter to
judicial interpretation, and has instead barred older claims
only through enactment of a statute of repose.
27
an analogous rule for the continuing treatment exception in
medical malpractice cases.
In deciding whether to adopt this "actual knowledge" rule,
we first consider the logic and purpose behind it. We declared
in Lyons, 436 Mass. at 247, quoting Williams v. Ely, 423 Mass.
467, 473 (1996), that "[t]he statute of limitations applicable
to a legal malpractice claim begins to run when a client 'knows
or reasonably should know that he or she has sustained
appreciable harm as a result of the lawyer's conduct.' . . .
This is the so-called discovery rule." The consequence of the
termination rule in Lyons is that, even where the client
continues to be represented by the attorney, the statute of
limitations clock for legal malpractice claims begins when a
client actually knows that he or she has sustained appreciable
harm as a result of the lawyer's conduct. If a client
reasonably should know that the attorney has caused the client
appreciable harm, but does not actually know it, the continuing
representation rule continues to apply.
However, in the practice of law, actual knowledge that an
attorney caused a client appreciable harm generally means actual
knowledge that the attorney committed legal malpractice.
Indeed, in Lyons, 436 Mass. at 247-248, 251, we affirmed the
judge's ruling that the continuing representation exception did
not apply after the client realized that his law firm "didn't
28
know what they were doing" once the offeror "walked away from
the deal." See Hendrickson v. Sears, 365 Mass. 83, 91 (1974)
("A client's cause of action against an attorney for negligent
certification of title to real estate does not 'accrue' . . .
until the misrepresentation is discovered or should reasonably
have been discovered, whichever first occurs . . .").
But with medical malpractice, a patient's actual knowledge
that the physician has caused the patient appreciable harm does
not necessarily mean that the patient knows that the physician
was negligent, because every medical procedure carries with it a
risk of complications that may occur naturally without any
breach of the standard of care by the physician. The instant
case is a classic example: there was no question that the
defendant's RFA procedure caused appreciable harm to William,
but actual knowledge of that fact shed little light on whether
the harm arose from a mere complication or from the defendant's
breach of the standard of care. Therefore, in contrast with an
attorney's client, it is simply incorrect to say that, once a
physician's patient knows that the physician has caused the
patient appreciable harm, there can be no "innocent reliance"
that the continuing treatment doctrine seeks to protect. A
patient who continues under the care of the same physician will
still have the same challenges in learning whether the harm the
patient suffered from the physician's treatment arose from the
29
physician's negligence. Thus, we conclude that the continuing
treatment exception to the discovery rule terminates only when
the plaintiff has actual knowledge that his or her treating
physician's negligence has caused the patient's appreciable
harm, because it is only then that there can no longer be the
kind of "innocent reliance" that the continuing treatment
doctrine seeks to protect. Once a patient learns that the
physician's negligence was the cause of his or her injury, the
patient has acquired sufficient information to initiate
litigation, and there is no longer adequate reason to continue
to toll the statute of limitations.17
17
The Appeals Court held that the continuing treatment
doctrine does not end, and continues to apply, even if the
patient becomes aware of the physician's negligence, stating
that there is a "compelling reason to continue to protect the
physician-patient relationship even after the plaintiff arguably
has actual knowledge. The patient could in 'good faith . . .
know[] that the physician has rendered poor treatment, but
continue[] treatment in an effort to allow the physician to
correct any consequences of the poor treatment.'" Parr v.
Rosenthal, 87 Mass. App. Ct. 787, 798 (2015), quoting Harrison
v. Valentini, 184 S.W.3d 521, 525 (Ky. 2005). We decline to
place so great an emphasis on the protection of the physician-
patient relationship once the patient has actually learned of
the physician's negligence. Where a physician has acted
negligently in the patient's treatment, the benefit of promoting
the continuation of that relationship is questionable. Faced
with the prospect of the patient suing for malpractice, the
physician has competing interests -- on one hand to see that the
patient gets the best treatment, and on the other hand to
protect his or her own interest by avoiding exposure to
liability. While there may be circumstances where the
physician's unique familiarity with the patient's medical
history enables the physician to treat the patient's condition
most effectively, there may well be others where the physician's
30
To be clear, by declaring that the tolling of the statute
of limitations ends under the continuing treatment doctrine only
when a plaintiff obtains actual knowledge of a physician's
negligence, we are not revising the discovery rule in medical
malpractice. Where the continuing treatment doctrine does not
apply, the statute of limitations clock begins to run on a
medical malpractice claim when the plaintiff learns, or
reasonably should have learned, that he or she has been harmed
by the defendant's conduct. Franklin, 381 Mass. at 619. Where
the continuing treatment doctrine does apply and, but for the
application of the doctrine the statute of limitations clock
would have started under the discovery rule, the tolling arising
from the doctrine ends once the plaintiff has actual knowledge
that the physician's negligence was the cause of his or her
injury.
3. Applicability of continuing treatment doctrine during
treatment by physicians other than the defendant. In this case,
there is no evidence that Rosenthal continued to treat William
at any point after William returned home from Spaulding in
December, 2005. If the continuing treatment doctrine applies to
Rosenthal's treatment only, then the doctrine would not toll the
statute of limitations period long enough to render the
negligence is indicative of inferior knowledge or skill that
will continue to adversely affect the patient's recovery.
31
plaintiffs' action timely. The question becomes whether the
doctrine continued to apply, and continued to toll the statute
of limitations for a claim against Rosenthal, for the additional
period that Raskin and Ebb treated William thereafter, as they
continued to try to remedy the damage done during the RFA
procedure.
The plaintiffs in their proposed jury instruction claimed
that the continuing treatment doctrine applies during the
ongoing treatment by a defendant physician "or doctors with whom
he works." See note 8, supra. On appeal, the plaintiffs
contend that it applies to medical personnel who were (1) in
some "relevant association with the [initial treating]
physician," Kelly v. State, 110 A.D.2d 1062, 1063 (N.Y. 1985)
(Hancock, J.P., dissenting); or (2) "part of the same team,"
Tausch v. Riverview Health Inst. L.L.C., 187 Ohio App. 3d 173,
182 (2010). The Appeals Court recognized that "[t]he case law
in other jurisdictions does not clearly establish a single rule
for when treatment by an associated doctor can be imputed to the
alleged negligent doctor." Parr, 87 Mass. App. Ct. at 794,
citing Tolliver v. United States, 831 F. Supp. 558, 560 (S.D. W.
Va. 1993). See Parr, supra at 795 n.20, and cases cited. The
court adopted a variation of the plaintiffs' argument and held
that, "[o]n retrial, if the jury conclude that William was a
group patient of all three doctors and not an individual patient
32
of Drs. Raskin and Ebb, or that the defendant was still
providing input to Drs. Raskin and Ebb on William's care as part
of the group prior to the amputation, then their continuing
treatment for the burn can be imputed to the defendant." Id. at
795-796.
We agree that the continuing treatment doctrine would apply
where an allegedly negligent physician continues to supervise,
advise, or consult with other physicians who are treating the
patient for the same or a related injury. See Otto, 815 F.2d at
989 (in medical malpractice case where National Institute of
Health [NIH] was sole defendant, continuing treatment doctrine
applied where "additional treatment was rendered at the advice
and under the direction of the NIH physicians"); Stephenson v.
United States, 147 F. Supp. 2d 1106, 1112 (D.N.M. 2001)
(continuing treatment doctrine applied where negligent primary
care physician had "continued direct involvement in evaluating
[the patient]'s progress" and exercised "control over the
treatment of [the patient] by the other health-care providers");
Echols v. Keeler, 735 P.2d 730, 732 (Wyo. 1987) (continuing care
doctrine did not apply where allegedly negligent doctor did "not
continue as [the patient's] doctor nor was he associated with or
engaged in assisting the doctors thereafter treating [the
patient]"). There was no evidence here, however, that after
December, 2005, Rosenthal supervised the treatment of William,
33
or advised or consulted with Raskin and Ebb regarding their
treatment of him. Consequently, for the plaintiffs' medical
malpractice cause of action to be timely, the continuing
treatment doctrine would need to apply to the period following
the surgery in which William was being treated by Raskin and Ebb
alone.
We need not determine here whether to follow the case law
in other jurisdictions that have applied the continuing
treatment doctrine to the continuing care of other physicians in
the same medical group partnership or medical clinic where a
patient is considered by the physicians and the patient to be a
patient of the group or clinic rather than of an individual
physician. See Offerdahl v. University of Minn. Hosps. &
Clinics, 426 N.W.2d 425, 428 (Minn. 1988); Watkins v. Fromm, 108
A.D.2d 233, 239 (N.Y. 1985). In Offerdahl, supra, the plaintiff
was a student at the University of Minnesota who "did not seek
treatment from any particular University physician but employed
the University clinic generally as her physician." The Supreme
Court of Minnesota held that although the claim was based upon
negligence by a particular physician of the clinic, "under these
unique facts where the patient sought treatment from a clinic as
a whole rather than an individual physician, the treatment of
the clinic as a whole, rather than that of the individual
physician alleged to have committed the act of malpractice, is
34
relevant for purposes of determining when treatment terminated
and the statute of limitations began to run." Id. Similarly,
in Watkins, supra at 234-235, the Appellate Division of the
Supreme Court of New York held that the continuing treatment
doctrine tolled the statute of limitations where ongoing
treatment was provided by members of the negligent physician's
medical group because, according to deposition testimony, the
plaintiff "was considered to be a patient of the entire medical
group, rather than of any one of the individual doctors, and
that it was the practice of the defendant doctors to discuss, as
a group, the diagnosis and treatment of all of the patients
under their care." Those factual circumstances are not
presented here. There is no evidence in the record that William
was treated as a patient of the sarcoma group rather than of the
particular physicians providing treatment, that the physicians
in the group discussed the diagnosis or treatment of all their
patients with the group, or that William's parents believed him
to be a patient of the group rather than of individual
physicians.
We have considered whether the reasons that underlie the
continuing treatment doctrine justify the application of the
doctrine where the allegedly negligent physician and the
physician who continues to treat the patient once were together
part of a patient's "treatment team." We recognize that, in
35
these circumstances, there is a risk that a patient's continued
trust and confidence in the physician providing continuing care
might put the patient at a disadvantage in making an informed
judgment as to whether a former team member provided negligent
treatment, especially where the physician providing the
continuing care effectively brought the allegedly negligent
physician onto the team. We also recognize that there is a risk
that, if a plaintiff were to contemplate a medical malpractice
action against a former team member, the plaintiff might
reasonably fear that exploring an action against that physician
would interrupt or otherwise interfere with the patient's
continuing treatment with other members of the team because of
their respect for and close connection with that physician.
We are reluctant, however, to extend the continuing
treatment doctrine to a "treatment team" for two reasons.
First, tolling the statute of limitations while the plaintiff
continues to be treated by a "treatment team" that once included
the allegedly negligent physician poses the risk that what was
intended to be a narrow exception may be interpreted so broadly
as to devour the discovery rule in medical malpractice cases.
Second, given the multitude of different ways in which patients
receive medical treatment in this Commonwealth, it is difficult
to define with precision a patient's "treatment team." The
absence of a precise definition means not only that it would be
36
difficult at trial to instruct a jury regarding the statute of
limitations but, more importantly, it would be difficult to
determine whether a case should be dismissed before trial on
statute of limitations grounds. The clarity and precision of a
limitations period is important to the interests of justice,
because it enables untimely filed cases to be dismissed before
trial, thus sparing all parties the needless time, expense, and
burden of a trial where the jury will never reach an
adjudication on the merits.
Because, having balanced the competing considerations, we
are unwilling to apply the continuing treatment doctrine to the
plaintiff's continued treatment by a "treatment team" that once
included the defendant, the doctrine does not apply in this case
after December, 2005. And without the tolling of the statute of
limitations beyond that date under the continuing treatment
doctrine, the plaintiffs' medical malpractice claim was not
timely filed.
Conclusion. We affirm the judgment in favor of the
defendant and the order denying the plaintiffs' motion for a new
trial.
So ordered.
CORDY, J. (dissenting in part). The court's decision today
fails to consider several factors that strongly militate against
adopting a continuing treatment exception to our settled
discovery rule for medical malpractice claims. Instead, the
court imprudently intrudes into a critically important sphere of
health care policymaking and makes its own preferred policy
judgment without any inkling of the effect it might have on the
cost of health care in Massachusetts, a matter of acute concern
to the executive and legislative branches of government. These
branches are far better equipped to balance the benefits of a
prolonged statute of limitations with the cost and access issues
it implicates. Just because the court can act to change the law
does not mean that it should. Therefore, I respectfully dissent
from the court's adoption of the continuing treatment doctrine
for medical malpractice cases.
For nearly forty years, our law has been clear: a cause of
action for medical malpractice "accrue[s] when the plaintiff
learns, or reasonably should have learned, that he has been
harmed by the defendant's conduct." Franklin v. Albert, 381
Mass. 611, 619 (1980). See G. L. c. 231, § 60D. Once the harm
and its causal relationship to acts of the physician is known or
reasonably should have been learned, the statute of limitations
clock starts to run, and the patient has three years to
2
determine whether to file suit. See Bowen v. Eli Lilly & Co.,
408 Mass. 204, 208 (1990).
Although I agree with the court's articulation of our rule
that, in the absence of explicit legislative direction, it may
determine, as a matter of common law, when a cause of action
accrues, and hence when the limitation period begins to run, see
Franklin, 381 Mass. at 617, the absence of explicit statutory
language does not mean that the court should act to change
settled law in a manner inconsistent with legislative
objectives. See Rosenbloom v. Kokofsky, 373 Mass. 778, 780
(1977). In this case, the adoption of the continuing treatment
doctrine runs contrary to the legislative aims undergirding the
Commonwealth's medical malpractice statutory framework and
ignores decades of work and study by the executive and
legislative branches regarding reducing the cost of health care
in the Commonwealth, ensuring both affordability and access.1
1
The Legislature has committed extensive resources to
understanding and addressing the issue of rising health care
costs, not only in the area of medical malpractice, but across
the health care industry as a whole. See House Committee Report
concerning 2012 Senate Bill No. 2400, The Next Phase of
Massachusetts Health Care Reform (between 2009 and 2020, "health
spending is projected to double, outpacing both inflation and
growth in the overall economy. The rapid rate of growth
squeezes out other spending, for individual households, for
businesses, for communities and in the state budget. That is
why this effort [to address rising health care costs while
improving health care quality and patient care] is essential for
our long-term economic competitiveness and for the health of our
residents"). To that end, it has mandated that various
3
Indeed, the court's ignorance of the impact on the cost of
health care of its sudden change of mind on the accrual of
malpractice claims is staggering.2 If ever there was a case that
executive agencies, including the Health Policy Commission, the
office of the Attorney General, and the Department of Public
Health, monitor and report on the costs of health care in the
Commonwealth. See G. L. c. 6D, § 8, as amended by St. 2013,
c. 35, § 3 (mandating annual hearings and report concerning
health care expenditures); G. L. c. 12, § 11N (mandating that
Attorney General "monitor trends in the health care market" and
granting authority to investigate medical providers and payers);
G. L. c. 12C, § 17 (Attorney General tasked with investigating
information "related to health care costs and cost trends,
factors that contribute to cost growth within the commonwealth's
health care system and the relationship between provider costs
and payer premium rates"); St. 2012, c. 224, § 272 (mandating
that Department of Public Health "create an independent task
force . . . to study and reduce the practice of defensive
medicine and medical overutilization in the commonwealth . . . .
The task force shall file a report of its study, including its
recommendations and draft of any legislation, if necessary
. . .").
These agencies produce extensive annual reports on the
issue of rising health care costs, as well as recommendations
across a wide range of health care policy issues. See, e.g.,
Health Policy Commission, 2015 Cost Trends Report,
http://www.mass.gov/anf/budget-taxes-and-procurement/oversight-
agencies/health-policy-commission/publications/2015-cost-trends-
report.pdf [https://perma.cc/C7ME-KMGN]; Office of the Attorney
General, Examination of Health Care Cost Trends and Cost
Drivers, (Sept. 18, 2015), http://www.mass.gov/anf/budget-taxes-
and-procurement/oversight-agencies/health-policy-
commission/annual-cost-trends-hearing/2015/cost-containment-5-
report.pdf [https://perma.cc/XK7N-S74D]; Center for Health
Information and Analysis, Performance of the Massachusetts
Health Care System, Annual Report, (Sept. 2015),
http://www.chiamass.gov/assets/2015-annual-report/2015-Annual-
Report.pdf [https://perma.cc/5DZ6-VW2V].
2
The court writes that there is no reason to believe, let
alone adequate factual information in the record, to support a
belief that adoption of the continuing treatment doctrine will
4
cried out for judicial restraint and deferral to the branches of
government best equipped to strike the proper balance between
ensuring affordable and available health care with the
protection of injured patients, this is it.
1. Legislative intent. After our adoption of the
discovery rule in Franklin, the Legislature amended G. L.
c. 231, § 60D, regarding the limitations period during which a
minor might bring a claim for medical malpractice. See St. 1986
c. 351, § 23. The legislative history is clear that the
Legislature knew that we had adopted the discovery rule, and
this knowledge informed the course of the statute's amendment.
See Annual Report of the Special Commission Relative to Medical
Professional Liability Insurance and the Nature and Consequences
of Medical Malpractice, 1987 House Doc. No. 5262.3 In addition,
affect enough claims to have any meaningful impact on the cost
of medical malpractice insurance. See ante at note 16. This
argument underscores the obvious: the court simply cannot know,
in the way the Legislature can, whether or how adoption of the
doctrine will affect the cost of medical malpractice insurance.
However, where concern over such costs has been a major driver
behind legislative reform in this area, see discussion infra, it
seems apparent to me that the court should take a more cautious
approach to redefining this area of settled law.
3
The Special Commission Relative to Medical Professional
Liability Insurance and the Nature and Consequences of Medical
Malpractice (commission) was established by St. 1975, c. 362,
§ 12. Its purposes included making recommendations to
ameliorate the high cost of medical malpractice insurance. The
report, which issued in 1987, discussed the issues that led to
the current version of G. L. c. 231, § 60D, including the
enactment of the current limitations period:
5
our prior cases have carefully considered the intent of the
Legislature in enacting major pieces of medical malpractice
legislation, St. 1975, c. 362, and St. 1986 c. 351, and we have
repeatedly acknowledged its concern regarding the costs
associated with medical malpractice litigation and its efforts
to ameliorate the costs of medical malpractice insurance. See,
e.g., Darviris v. Petros, 442 Mass. 274, 283-284 (2004)
(describing medical malpractice act of 1986 as "an exhaustive
statutory scheme governing medical malpractice claims" and
concluding that "[e]xpanding the scope of damages available to
plaintiffs who are victims of medical malpractice, and the
period within which to make such claims, is contrary to the
express intent of the Legislature in enacting St. 1986,
"Most actuarial experts that testified before both the
Special Commission and the Committee on Insurance
stated meaningful savings would be realized by a
change to the statute of limitations. At present, an
action may be commenced within three years of
discovery that there are grounds to initiate a suit
for medical malpractice, but there is no limit on the
time period in which such discovery must be made.
Under Chapter 351, the statute of limitations for
medical malpractice actions would be revised to place
an outside limit on the time which a lawsuit may be
commenced, that limit being seven years after the date
of the occurrence which gave rise to the claim, except
when the action is based upon the leaving of a foreign
object in the body in which case no outside limit
shall apply (Section 30, Chapter 351)." (Emphasis
added.)
Annual Report of the commission, 1987 House Doc. 5262, at 9.
6
c. 351"); McGuiggan v. New England Tel. & Tel. Co., 398 Mass.
152, 163 (1986) (Lynch, J., concurring) ("[T]he General Court
has recently limited the amount that may be recovered by victims
of medical malpractice in an attempt to solve what it perceives
as a crisis in the medical profession brought about by the
burgeoning cost of malpractice insurance. St. 1986, c. 351.
The Legislature has acted to restrict recovery by injured
litigants in order to limit the expense of practicing
medicine"). See also Paro v. Longwood Hosp., 373 Mass. 645, 647
(1977) (tribunal requirement of medical malpractice act of 1975
was enacted "as part of a comprehensive package designed to
ensure the continued availability of medical malpractice
insurance at a reasonable cost)".
In sum, the result reached by the court today is anomalous
in light of the legislative history and intervening decisions of
this court, which recognize that the medical malpractice
statutory framework is intended to moderate the cost and expense
of medical malpractice litigation and that such a purpose is
accomplished, in part, by the statute of limitations period.
The court notes that the absence of legislative action cannot be
interpreted as an affirmative rejection of the continuing
treatment doctrine. In reaching this conclusion, however, the
court ignores the fact that the statutory scheme was developed
in tandem with the common law, and that expanding the period in
7
which a medical malpractice claim may be brought markedly
departs from the clear policy aims the Legislature sought to
accomplish by repeatedly enacting legislation addressing
malpractice claims, insurance, and the objective of reducing the
time of exposure to such malpractice claims. See note 2, supra.
Finally, it is notable that the Legislature did include
express "exceptions" to the limitations period in G. L. c. 231,
§ 60D. First, there is an exception so any child under the age
of six "shall have until his ninth birthday" to bring a claim.
Second, the seven-year statute of repose has an exception for
"the leaving of a foreign object in the body." Id. Given the
Legislature's consideration and inclusion of these exceptions, I
cannot conclude that a "continuing treatment" exception should
be inferred where it was not included by the Legislature. "The
fact that the Legislature specified one exception . . .
strengthens the inference that no other exception was intended."
Joslyn v. Chang, 445 Mass. 344, 350 (2005), quoting LaBranche v.
A.J. Lane & Co., 404 Mass. 725, 729 (1989).
Thus, contrary to the court's conclusion, it is apparent
that, in the medical malpractice context, the Legislature has
concurred with, and maintained, our uniformly applied "accrual"
standard, as articulated in Franklin.4 The statutory history and
4
To the extent that the court relies on decisions from
other jurisdictions in adopting the continuing treatment
8
framework reflect a legislative choice to balance the goals of
protecting defendant health care providers from extended tort
exposure from stale claims, and of eliminating the "manifest
injustice" which would result without the discovery rule for
plaintiffs who are "blameless[ly] ignoran[t]" of information
which might have put them on inquiry notice for purposes of
investigating and possibly pursuing a claim. See Franklin, 381
Mass. at 618.
The decision today elevates this latter policy concern over
the former, based on the court's belief that the continuing
treatment exception to the discovery rule would benefit patients
by addressing a shortcoming it perceives in our current law,
namely that patients are unable to make informed judgments as to
negligent treatment while such treatment is ongoing. See, e.g.,
Harrison v. Valentini, 184 S.W.3d 521, 524 (Ky. 2005). In
adopting the continuing treatment exception, however, the court
fails to consider future impacts to the health care industry --
impacts to which the Legislature has dedicated decades of study
and, in response, carefully crafted legislation that reflects an
effort to best balance competing policy concerns. Where the
Legislature's policy determinations are fairly clear, the court
should defer to those judgments.
doctrine, those cases do not affect my view of what the
Legislature intended.
9
2. Adopting the exception by analogy. I also disagree
with the court's reasoning that our adoption of the continuing
representation doctrine to the discovery rule in legal
malpractice claims, see Murphy v. Smith, 411 Mass. 133, 137-138
(1991), justifies the adoption of a continuing treatment
exception to the discovery rule in medical malpractice claims.
I disagree with the proposition that, "just as a wronged client
is permitted to benefit from his or her attorney's efforts to
correct a problem without the disruption of exploring the
viability of a legal malpractice action, so, too, is a patient
permitted that same benefit without the disruption of exploring
the viability of a medical malpractice action." Ante at .
This statement both mischaracterizes the rationale underlying
the continuing representation doctrine, and downplays the
significant differences and interests at stake in those two
arenas.
First, with respect to legal malpractice, as we have held,
the continuing misrepresentation doctrine "recognizes that a
person seeking professional assistance has a right to repose
confidence in the professional's ability and good faith, and
realistically cannot be expected to question and assess the
techniques employed or the manner in which the services are
rendered" (citation omitted). Murphy, 411 Mass. at 137.
Implicit in the doctrine is an understanding that a person
10
seeking legal services may not recognize that certain acts or
omissions by an attorney constitute malpractice. Our
justification of the doctrine says nothing, however, about
permitting the representation to continue so that an attorney
may correct an error arising from the attorney's conduct; to the
contrary, the facts in Murphy suggest that the attorney accused
of malpractice did nothing to correct his alleged error. Id.
Moreover, the rationale for adopting the continuing
representation doctrine is largely distinguishable from any
analogous rule in the medical malpractice context. The
"continuing representation" principle that we recognized in the
context of legal malpractice arose from assurances given by an
attorney that he had attended to a legal issue that had no
perceptible manifestation to the client. See id. at 136. In
the field of legal malpractice, there are situations, such as
the one presented by Murphy, where the attorney may assure the
client that a certain task has been carried out correctly and
where the client should be able to accept such representations
in the absence of information to the contrary. Such a rule
makes sense in the legal malpractice context because the alleged
act or omission which gives rise to a claim and causes an injury
to the plaintiff is caused somewhere other than in the
plaintiff's own body, often under circumstances remote from a
plaintiff's ability to detect circumstances which might put him
11
or her on notice of a claim. See, e.g., Murphy, 411 Mass. at
137 (plaintiffs unaware of attorney's purportedly improper
certification of good record title until receipt of letter from
neighbor's attorney). The same cannot be said about the injury
in a medical malpractice case, especially where the defendant's
actions had a direct and perceptible effect on the patient's
body.
The court also justifies its adoption of the continuing
treatment exception by analogy to the continuing representation
doctrine in legal malpractice on the ground that the Legislature
otherwise used almost identical language to describe the
limitations period for medical malpractice claims and for legal
malpractice claims. It is apparent, however, that the
Commonwealth's legislation governing medical malpractice was
enacted in light of a number of competing policy concerns that
are unique to the health care industry -- concerns simply not
present in the practice of law -- a practice that we as a court
regulate.5
5
The language in context is different. As discussed, there
is a statute of limitations that the Legislature enacted
specifically to address medical malpractice and an even more
specialized statute for cases involving minors. See G. L.
c. 231, § 60D; G. L. c. 260, § 4. The medical malpractice
limitations statute includes a statute of repose, but the
statute for legal malpractice does not. The medical malpractice
statute applicable to juveniles eliminates tolling until the
minor's eighteenth birthday (G. L. c. 260, § 7), but the legal
malpractice statute does not. Compare G. L. c. 260, § 4, first
12
3. Conclusion. The court's adoption of the continuing
treatment exception to the discovery rule is inconsistent with
the apparent legislative objectives underlying the
Commonwealth's medical malpractice statutory regime,
particularly G. L. c. 231, § 60D. In my view, the court should
apply the settled discovery rule to the facts of this case. As
the court acknowledges, the defendant's treatment ceased in
December, 2005. Therefore, the plaintiffs' action, brought in
2009, was not timely.
par., with G. L. c. 231, § 60D. This express statutory language
unmistakably demonstrates that the Legislature intentionally
differentiated the medical malpractice and legal malpractice
statutes of limitation.