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LeBlanc v. Friedman1/29/2003
Middlesex.
October 10, 2002
Release. Mistake. Negligence, Medical malpractice. Practice, Civil, Summary judgment.
This medical malpractice case turns on the interpretation of a release signed by the plaintiffs Diane and Roland Leblanc after it was discovered that a medical instrument had been left in Mrs. Leblanc's abdomen by the defendant Dr. Andrew J. Friedman during a surgical procedure. The Leblancs later sued Dr. Friedman for injuries resulting from acts of malpractice unrelated to the medical instrument. The motion judge granted Dr. Friedman's motion for summary judgment, holding that the broadly worded release covered the malpractice that the Leblancs alleged. The Appeals Court reversed, reasoning that because the parties had not anticipated the injury that was the subject of the malpractice claim, the release may have been the product of a mutual mistake, which would be dependent upon the intent of the parties, a genuine factual issue in dispute. Leblanc v. Friedman, 53 Mass. App. Ct. 697 (2002). This court granted the defendant's application for further appellate review. We agree with the Appeals Court that summary judgment was inappropriate in this case, but for different reasons.
1. Background. The facts of this case are largely undisputed. On June 28, 1991, Diane Leblanc, then under the care of Dr. Raymond Partridge, underwent an ultrasound after complaining of pelvic pain. The ultrasound determined that Mrs. Leblanc's left ovary was approximately one-half the size of her right one. It also detected indications of endometriosis. Mrs. Leblanc was diagnosed with endometriosis and was eventually referred to Dr. Friedman for treatment. On March 16, 1992, Dr. Friedman performed a laparoscopy (an internal pelvic-abdominal examination) on Mrs. Leblanc. The laparoscopy confirmed the endometriosis; Dr. Friedman, however, failed to detect Mrs. Leblanc's left ovary during that examination and concluded that the left ovary was absent.
The day after the laparoscopy, Mrs. Leblanc complained of pelvic pain and discomfort. After she discharged a piece of a medical instrument, Mr. Leblanc contacted Dr. Friedman's office. On April 2, 1992, the couple visited Dr. Friedman's office for a follow-up appointment. Dr. Friedman apologized for the medical instrument, which had apparently been retained in Mrs. Leblanc's abdomen during the procedure. He and the couple discussed the options for treating her endometriosis; all agreed that she should begin receiving injections immediately. Dr. Friedman also told Mrs. Leblanc that she had been born with only one ovary.
At the next appointment, on April 30, the couple decided, after consultation with Dr. Friedman, that Mrs. Leblanc should undergo a hysterectomy. Dr. Friedman performed the procedure on June 3, 1992, removing only the right ovary and failing to notice or remove the left ovary.
At some point between March and August, 1992, the Leblancs were contacted by Richard Healy of the Risk Management Foundation of the Harvard Medical Institutions (foundation). The foundation serves as the claims adjuster for the company that provides malpractice liability insurance for Harvard Medical School-affiliated hospitals. Healy told the Leblancs that the foundation was interested in settling any possible claims that the Leblancs might have or bring regarding the medical instrument left in Mrs. Leblanc after the laparoscopy. On August 17, 1992, after both the laparoscopy of March 16 and the hysterectomy of June 3, the foundation's initiative resulted in the Leblancs executing, for $7,000 consideration, the release that is the centerpiece of the defendant's summary judgment motion.
The r
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