Recent settlements
  • $1,560,000.00 Motor Vehicle Accident
  • $2,200,000.00 Wrongful Death
  • $1,250,000.00 Motorcycle Accident
Free Consultation No fee unless succesful we will travel to you
  • Top 100 Trail Lawyers
  • AVVO Car Accident 2015
  • AVVO Top Attorney Car Accident
  • American Academy of Trial Attorneys
  • 10 Best 2015
  • Super Lawyers
  • Massachusetts Academy of Trial Attorneys
  • ASLA

Massachusetts Appeals Court Dismisses Cancer Patient’s Medical Malpractice Case on Statute of Repose Grounds

calendar on deskIn order to seek compensation from a person or business for injuries caused by negligence, the aggrieved party must file suit within the applicable statute of limitations. In Massachusetts, the limitations period for medical malpractice is three years.

In cases in which a statute of repose is also in effect, the plaintiff must also file his or her case within this period. Under the Massachusetts statute of repose, the plaintiff must file suit not only within three years after the cause of action accrued (the moment at which the plaintiff knew or should have known about the alleged act of negligence) but also within seven years of the alleged act or omission (except in cases involving foreign objects left inside the patient’s body).

Unless both of these time limits are met, the plaintiff cannot prevail.

Facts of the Case

In a recent case (unreported) heard by the Commonwealth of Massachusetts Appeals Court, the plaintiff was a man who was initially treated for pain in his lower right abdomen in 2002. A computerized tomography (CT) scan revealed that the plaintiff had a mass in his left kidney, but no one at the hospital told the plaintiff. The hospital did, however, send the plaintiff’s CT scan films and a radiology report to the defendant, who was the plaintiff’s primary care physician until 2011. The defendant did not mention the mass to the plaintiff at any time between 2002 and 2011.

In 2013, after the plaintiff had changed doctors, the plaintiff underwent a second CT scan and discovered that he had a 8.2 centimeter, cancerous mass on his kidney. In 2014, his left kidney was surgically removed. He filed a medical negligence action against the defendant later that year, alleging that the doctor was negligent in not following up on the CT scan or ordering a biopsy of the mass that had first been noted in 2002.

The trial court dismissed the plaintiff’s case on the ground that it was barred by the statute of repose. He appealed.

Decision of the Appellate Court

The court of appeals affirmed the trial court’s dismissal of the plaintiff’s case. The court first noted that the purpose of a statute of repose is to place an absolute time limit on a potential defendant’s liability, even if the plaintiff does not discover his or her injury until after the expiration of the time set forth in the statute.

Given that the act  or omission about which the plaintiff complained occurred in 2002, the plaintiff’s complaint would had to have been filed by 2009 in order to be considered timely. Since he did not file suit until 2014, his complaint came five years too late. In so holding, the court rejected the plaintiff’s arguments that his case was saved by the discovery rule or the continuing treatment doctrine, opining that neither of those doctrines was applicable to the statute of repose.

Call an Experienced Massachusetts Medical Malpractice Lawyer

As this case illustrates, time is of the absolute essence in personal injury cases. If you suspect you may have been a victim of medical negligence, do not delay in seeking counsel. The knowledgeable Cape Cod medical malpractice attorneys at the Law Offices of John C. Manoog, III, are here to help. Call us today at (888) 262-6664 to set up a time to come in and talk about your case with a member of our team. There is no charge for the consultation, and most cases are handled on a contingency fee agreement.

Related Blog Posts:

Massachusetts Supreme Judicial Court Revisits Timeliness of Complaint in Medical Malpractice Case

Massachusetts Appeals Court Finds “Less Draconian Consequences” Than Dismissal of Medical Malpractice Action Not in Compliance with Notice Statute