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Darviris v. Petros9/18/2003
Middlesex.
November 14, 2002
Practice, Civil, Summary judgment. Limitations, Statute of. Medical Malpractice, Consent to medical treatment. Negligence, Medical malpractice. Consumer Protection Act, Unfair or deceptive act, Trade or commerce.
The plaintiff patient, Georgia Darviris, and her husband appeal from a Superior Court judgment of dismissal following allowance of the defendant's summary judgment motion. The defendant is James G. Petros, M.D., the plaintiff's doctor. Of the six counts in the plaintiff's complaint, the judge held that five were barred by the statute of limitations. As to the sixth, alleging violation of G. L. c. 93A, the judge concluded that there was "no support for the argument that [the doctor's] act was unfair or deceptive." We affirm the judgment.
Factual background.
In reviewing a judge's action on a motion for summary judgment, we consider the facts in the light most favorable to the nonmoving party. See Miller v. Mooney, 431 Mass. 57, 60 (2000). Summary judgment is appropriate only when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact." Mass.R.Civ.P. 56(c), 365 Mass. 824 (1974); Riley v. Presnell, 409 Mass. 239, 244 (1991). The facts most favorable to the plaintiff are as follows.
After consulting the defendant initially in 1992 for rectal bleeding and pain, the plaintiff sought his care again on December 14, 1995, for the same symptoms. The defendant examined her, told her that "it was the [anal] fissure again," and recommended surgery. The plaintiff asked the defendant about side effects. He reassured her that she wouldn't have any because of her relative youth. She asked about treatment of side effects if they should occur. He said that at worst there was a simple procedure he could do in his office. They also discussed how long the surgery would take. The operation was scheduled for January 10, 1996.
Sometime before the surgery the plaintiff telephoned the defendant to tell him that her symptoms had disappeared, that she had no pain or bleeding. She asked whether they should cancel the scheduled surgery. The defendant responded that she needed the surgery to "take care of this problem once and for all."
On January 4, 1996, six days before surgery, the plaintiff went for a preoperative evaluation at the hospital where the surgery was to be performed. While there she signed an eight-section form captioned "A Consent to an Operation." A woman sitting at a desk, who may have been a doctor, told her that the form was part of the procedure, and that she needed to sign the consent form to allow Dr. Petros to perform the operation on her. The plaintiff signed the form without reading it.
The first section of the form authorized a "fissurectomy" under the direction of the defendant. Section two provided that the " he nature and purpose of the operation . . . and the possible alternative methods of treatment been explained to by Dr. Helo." The third section concerned the opportunity to ask questions. The fourth was a consent "to the performance of operations, procedures, and treatment in addition to or different from those [then] contemplated . . . which the above-named doctor . . . may . . . consider necessary or advisable." Above the plaintiff's signature, near the bottom of the page, the form stated in capital letters, "I certify that I have read and fully understand the above consent, that the explanations . . . referred to were made, that all blanks or statements requiring insertion or completion were filled in, and that inapplicable
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