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Statute of Limitations and Repose issues


Parr v. Rosenthal 2016

The PLF prepared a brief for the appeals court on the issues or continuous treatment doctrine in MA and whether the plaintiff was entitled to an equitable tolling argument. The PLF called for further appellate review of the Appeals Court decision which adopted an expansive view of continuous treatment as a way of tolling the statute of limitations. The Supreme Judicial Court granted appellate review and issued a split decision recognizing a narrow continuous treatment doctrine.


Rudenauer v. Zafiropoulos 2005

The Foundation responded to the Court’s invitation for amicus briefs by urging that the Court not recognize a “continuing treatment” rule, or any other similar common law doctrine. The doctrine appears contrary to the express terms of G.L.c. 231, Section 60D, and G.L.c. 260, Section 4, both of which provide that "in no event" may a claim be "commenced more than seven years after occurrence of the act or omission which is the alleged cause of the injury." Additionally, the Foundation argued that even if the Court were to recognize some version of a continuing treatment rule, the Plaintiffs would not escape the statute of repose. This decision on the statute of repose does not appear implicated by the Parr decision.

The SJC rejected the proposed new doctrine and issued an opinion consistent with the Foundation’s position.

Heinrich, et al. v. Sweet, et al. US Court of Appeals, 1st Cir., Docket # 00-2553, 2002 In a case fraught with ramifications for experimental medicine, the Court of Appeals vacated jury verdicts against a surgeon who provided experimental therapy to patients who had given valid informed consent. The case was filed more than thirty years after treatment had been concluded, and the surgeon involved in the case was unable to participate in his own defense due to illness. The PLF joined the Massachusetts Medical Society, the American Medical Association s, and the American College of Surgeons, urged reversal on fraudulent concealment and tolling of statute of limitations issues.


Harlfinger v. Martin, 435 Mass. 38, 754 N.E.2d 63 (2001):  The SJC concluded that G. L. c. 231, s. 60D, requiring that medical malpractice claims on behalf of minors be brought within seven years of the date of the act or omission that allegedly caused the injury, did not violate due process or equal protection guarantees, where the statute of repose bore a reasonable relationship to the legitimate legislative purpose of curbing the cost of medical malpractice insurance.[i]

Darviris v. Petros
The Darviris case presented three main legal issues: (a) whether the negligence claims were barred by the three year statute of limitations, (b) whether allegations of negligence, without more, can state a claim for violation of c. 93A, and (c) whether an alleged violation of G.L. c. 111, § 70E (Patient’s Bill of Rights) through inadequate or deceptive informed consent can supply the basis for a c. 93A violation via a regulation of the Attorney General.

The Supreme Judicial Court answered all three questions consistently with the Foundation’s position. This important decision by the SJC clarifies that Massachusetts plaintiffs who allege the negligent delivery of medical care without evidence of an unfair or deceptive practice concerning the entrepreneurial or business aspect of providing medical services cannot seek redress (including treble damages and attorney fees and an extended statute of limitations) under the state's consumer protection statute.

93 A Issues

See Darviris v. Petros listed under Statute of Limitations and Repose.


Duty to/of Third Parties

Hochberg v. Medina, SJC No: 11178: 2013 The SJC issued a unanimous decision which was totally consistent with the Foundation’s brief. The case limits the liability of physicians to third parties in Coombes like cases to a requirement to warn of the potential harm caused by prescriptions. No liability exists to third parties from the effects of the patient’s underlying condition.


Leavitt v. Brockton Citing Coombes v. Florio, 450 Mass. 182, 213-214 n.6 (2007) (Cordy, J., dissenting), Absent a special relationship with a person posing a risk, there is no duty to control another person's conduct to prevent that person from causing harm to a third party. The court did not recognize a duty to a third person of a medical professional to control a patient (excluding a patient of a mental health professional) arising from any claimed special relationship between the medical professional and the patient

Coombes v. Florio

The case established the liability of a physician to an unknown third party. A deeply divided court reversed the lower court’s summary judgment ruling for the defense and sent the case back for trial. Judge Ireland’s decision found liability to all foreseeably put at risk in what he deemed an issue of negligence and “not a malpractice claim”. Chief Justice Marshall issued a strong dissent in this case which was greatly narrowed in the cases above, (Hochberg, Leavitt.)


Stella Dias, et al v. Brigham Medical Associates, Inc. (2002)

This case raised the question of whether an incorporated group medical practice may be held vicariously liable for the alleged negligent medical treatment rendered by one of its employee physicians. The defense asserted that the medical practice had no right to exercise control over the physician’s treatment methods and decisions.  The lower court agreed. The SJC concluded that traditional respondeat superior liability applies to the employer of a physician, and that to establish such liability it is not necessary that the employer have the right or ability to control the specific treatment decisions of a physician-employee. The lower court judgment was vacated and the case remanded for further proceedings consistent with the opinion.


In Commonwealth v. Life Care Centers of America, Inc., 2010 the Attorney General indicted a health care corporation for manslaughter on the theory that the conduct of dozens of employees over several months, which is possibly negligent (but expressly not criminal or coordinated), can be “aggregated” into a corporate criminal intent in order to convict the corporation (though no employee) of a crime.  The SJC rejected this approach.

Roes v. Children’s Hospital Medical Center, SJC No: 11533. 2015 This case decided whether a Massachusetts hospital employer owes a legally cognizable duty of care to future patients of a doctor who has left the hospital's employ and resumed practicing medicine in the employ of a different hospital in another State. The decision found that no duty exists in the circumstances presented, where the hospital does not have the type of special relationship either with its former employee, or with any of his prospective patients, that would create such a duty. –


Moulton v. Puopolo, et. al, SJC No: 11357. 2013 The civil action sought damages from each member of the charitable Board of Directors. The Court decided that the members of the Board of Directors have the same protection from liability that is afforded to the employer charitable corporation.

Lyon v. Morphew, 424 Mass. 828, 678 N.E.2d 1306 (1997):

The SJC rejected an attempt to expand the liability of hospital officers and directors.



Loss of Chance

Matsuyama v. Birnbaum SJC 2008

The SJC determined that Massachusetts law permits recovery for a "loss of chance" in a medical malpractice wrongful death action, where a jury found that the defendant physician's negligence deprived the plaintiff's decedent of a less than even chance of surviving cancer. The wrongful death statute refers to causing the death and at issue was whether a causation standard was met. There were also procedural formula for damages outlined in the decision.

See also Renzi v. Veatch SJC 2008 Directed a new trial for lack of instructions on calculation of damages in loss of chance cases.


Peer Review

Ayash v.Dana-Farber Cancer Institute and Others 2005

The Foundation supported the position that there is a strong public interest in the proper application of the peer review statutes, apart from the interests of the litigants themselves.  The effective use of medical peer review committees to conduct vigorous evaluation of physicians requires that the entire proceeding, including communications with the physician who is the subject of the peer review, must be vigorously protected by the shield afforded by the Massachusetts peer review protection statute. In essence, our position was that peer review materials are excluded from admission rather than the subject of a privilege that may be waived. The court’s decision affirmed this view.


Hallmark v. Board of Registration in Medicine. 2009

The Board of Registration in Medicine won the right to subpoena some credentialing information prior to its opening of a formal investigation. The statutory language in section 205 B which directly cites the Board's disciplinary unit as having inspection rights to some materials carried the day for the Board. However, the SJC did make a distinction among various peer review materials under sections 204 (a) and 205 (b). 204 (a) "proceedings, reports and records of a peer review committee" remain protected. The court specifically cited resumes, medical license copies and material collected for credentialing as not all automatically protected. Applies only to the BRM which has special status in the law.

Carr v. Howard, 426 Mass. 514, 689 N.E.2d 1304 (1998):

The SJC held that hospital incident reports are protected against disclosure in malpractice cases by GL c. 111, §§ 204 and 205.


Swatch v. Treat, 41 Mass.App.Ct. 559, 671 N.E.2d 1004 (1996).

The Appeals Court ruled that peer review materials cannot be used in litigation even with the consent of the parties to that litigation, and allowed the convening organization to intervene to protect its peer review records.


William Vranos vs. Franklin Medical Center & others. 2007 SJC-09797

Articulation of the rule that to break through the medical peer review process, the moving party must show that the medical review process itself, and not the reasons for initiating it, was infected with lack of good faith.



Procedural Issues

Charitable Cap

Dylan Keene, et al v. Brigham and Women’s Medical Hospital 2003

The PLF filed a statement in support of an Application for Further Appellate Review in this case and a brief when granted. The hospital sought further review on a judgment of default, incorporating an order striking the hospital’s statutory immunity from damages in excess of $20,000, entered as a discovery sanction because the hospital was unable to locate records indicating the identities of plaintiff’s caregivers at his birth. In a lengthy majority opinion, the Court affirmed the Appeals Court on liability, but reversed on damages, holding that the statutory charitable cap did not allow for any kind of equitable abrogation in cases in which it otherwise applied.  Justice Ireland dissented.

Rights of Insurers

Bejarano v. Goldberg 2011 The Foundation filed an amicus on the issues of whether an insurer may pursue post verdict motions without the defendant and whether service of process is necessary to find against an individual. The case was settled during the pendency of the appeal.


Tribunal Issues

Faircloth v Dilillo, SJC No: 11275 and Cruz v. Siddiqi, SJC No: 11274: 2013 These related cases examined the issues of when a medical malpractice tribunal bond may be reduced. The decision states that: “in exercising his or her discretion to determine whether or not to reduce the amount of such a bond, a judge should evaluate the reasonableness of the plaintiff's continued pursuit of the action by determining whether the indigent plaintiff "made a good faith effort to present an offer of proof sufficient to meet the directed verdict standard," Denton v. Beth Israel Hosp., 392 Mass. 277, 281 (1984) (Denton ), and "whether a [litigant] who is able to pay and was paying the expenses [herself], would consider the [bond] sufficiently important that [s]he would choose to obtain it."


Vasa v. Compass Medical    2009

The issue is whether there must be a Medical Malpractice Tribunal in a third party liability (Coombes-type) case. The widow of a man who was hit and killed by a car could not sue the driver's health care providers for failing to warn of the risk of driving while under certain medication without first presenting her claim to a medical-malpractice tribunal, the Supreme Judicial Court has ruled.<


Treatment Decisions

Lesley v. Hee Man Chie, 250 F.3d 47 (1st Cir. 2001):  First Circuit Court of Appeals limits grounds for liability for medical decisions under federal discrimination laws to treatment decisions “devoid of any reasonable support”, as urged by the PLF in its amicus brief.




  Helmuth v. Harvard Vanguard Medical Associates 2009<

The PLF’s interest was whether a Superior Court Justice should have the authority to reduce an award for emotional distress when the Court determines that the record does not support such an award.  The SJC review was denied which meant that the Appeals Court decision, which affirmed the reduction of the damage award from $300K to $100K, will stand as the final resolution of the case.

Informed Consent

Feeley v. Baer, 424 Mass. 875, 679 N.E.2d 180 (1997):

The SJC reversed an Appeals Court decision that would have expanded the Informed Consent Doctrine to require disclosure of remote risks.





 Evidence Issues  

Law v. Griffith: 2010

The SJC ruled that, a judge in the Superior Court erred in excluding from evidence the plaintiff's medical bills, where G. L. c. 233, § 79G, unambiguously permits the introduction of such bills as evidence of the reasonable value of the services rendered when the services are related to the injury for which the claim is made.

This court, taking into consideration both G. L. c. 233, § 79G, and the common-law collateral source rule, concluded that in a negligence action, evidence of amounts actually paid to a plaintiff's medical providers is not admissible, but evidence may be introduced concerning the range of payments that such providers accept for the types of medical services that the plaintiff received.


Healey v. Lamattina


This issue was decided at the trial court on whether serious reportable events reports were confidential.


Peer Review


Tuli v. Day The Foundation did review this case from the perspective of the admissibility of peer review materials in a Federal case. While the Foundation did file extensive materials on the case, the court declined to accept our brief. The denial was not specific but may have followed the reasoning that peer review was not central to the arguments presented by the parties.


Grande v. Lahey Clinic Hosp., Inc., 49 Mass.App.Ct. 77, 725 N.E.2d 1083 (2000):  Massachusetts Appeals Court held that the Peer Review Privilege (GL c. 111, § 204) prohibits deposition of a physician serving as an outside consultant to a hospital peer review committee.




Chang v. Harvard Vanguard Medical Associates 2012

The issue in this Appeals Court case was whether a court may grant summary judgment after a case has been approved by a tribunal. The answer was yes.


Josephine Cooper, vs. Ann Cooper-Ciccarelli, D.O. 2010

The decision outlines what is necessary to meet a tribunal standard and upholds dismissal of the plaintiff’s claim for failure to meet that standard and post a bond.


93 A Claims


Brown and Segal v. Dragonas, Bellofatto and CRICO 2004


The issue was whether a plaintiff who has lost at trial may still pursue a Chapter 93A claim against an insurer for failure to settle on behalf of the now successful defendant.


Rhodes v. AIG 2012 SJC

This case addresses claims for failure to settle by insurers. It is not a medical malpractice case.



Walker v. Collyer, Appeals Court No: 2013-P-1898. 2014 This case was to determine whether a physician could be compelled to arbitrate a medical malpractice claim. The Appeals Court considered the case in view of contract law, and agency principles, and found (1) The Arbitrator should not make the "gate way decision" on whether Walker was subject to arbitration and (2) Based upon the uncontested facts, and record, Walker was not bound by the arbitration agreement.



ERIC MUISE, administrator [FN1] vs. MENNO VERHAVE & another; [FN2]


Appeals Court ruling that a plaintiff’s attorney could not enforce a prior offer after accepting a high low agreement.


Statute of Limitations and Repose

Chace v. Curran SJC 2008 fraudulent concealment of records tolls the statute of limitations


Sisson v. Lhowe, SJC 2011

A divided court concluded that a wrongful death claim may be substituted for a

personal injury claim only where (1) trial has not commenced; (2) the original complaint alleging malpractice was filed within the statutes of limitation and repose; and (3) the allegations of liability supporting the personal injury claim are the same as those supporting the wrongful death claim.








[i] Plummer v. Gillieson, 44 Mass.App.Ct. 578, 692 N.E.2d 528 (1998):  Massachusetts Appeals Court rejects attack on Statute of Repose for minors.