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LeBlanc v. Friedman1/29/2003
ith the medical instrument incident.
Dr. Friedman claims that the release is a general release, which this court has held "is 'to be given effect, even if the parties did not have in mind all the wrongs which existed at the time of the release.'" Schuster v. Baskin, 354 Mass. 137, 140 (1968), quoting Naukeag Inn, Inc. v. Rideout, 351 Mass. 353, 356 (1966). General releases dispose "of all claims and demands arising out of any transactions between" the parties (emphasis added). Schuster v. Baskin, supra. If the August 17 release was general, then, it would relieve Dr. Friedman of liability for any later discovered negligence.
Massachusetts cases interpreting general releases have encountered documents breathtaking in their scope. In Naukeag Inn, Inc. v. Rideout, supra at 355, for example, one party released all claims which "I may hereafter have from anything which has heretofore happened." In Atlas Tack Corp. v. Crosby, 41 Mass. App. Ct. 429, 431 (1996), the plaintiff discharged the defendant "from all manner of actions, causes of action . . . which [the plaintiff] ever had, now has or which it or its successors can, shall or may have for, upon or by reason of any matter, cause or thing whatsoever from the beginning of the world to the day of the date of these presents."
While the release in this case contains some of the same language, referring repeatedly to "all claims" that the LeBlancs might have had, it also contains limiting language. Every paragraph of the document is qualified such that it relates back to a phrase in the first paragraph --that released the four parties "from all claims .. . resulting from care and treatment rendered to Diane LeBlanc on or about March 16, 1992" (emphasis added). Paragraph two refers to any claims "on account of, or in anyway growing out of, said care and treatment or its results." Paragraph three pertains to claims against other parties "who are or might otherwise be liable in anyway for the care and treatment rendered to the undersigned and which is the subject matter of this settlement." Most importantly, paragraph four, which discharges the four parties from liability for claims for "unknown" injuries, does so for such claims which "may hereafter in anyway grow out of or be connected with said care and treatment its results." In light of this limiting language, we interpret the release to discharge the liability of the four parties for "unknown" injuries only to the extent that such injuries in "any way grow out of" or are "connected with" the care and treatment that Mrs. Leblanc received on March 16, 1992, the only "care and treatment" referenced in the release.
The Leblancs are suing Dr. Friedman for his negligence in not discovering and removing her left ovary. One instance of that alleged negligence was his failure to view it during the March 16 laparoscopy. As we have just held, the release prevents the LeBlancs from holding Dr. Friedman liable for injuries resulting from that act. On the Leblancs' view, however, Dr. Friedman's negligence is not limited to his actions on that date. The complaint alleges two acts of negligence, the first being the failure to identify the left ovary during the March 16, 1992, procedure, and the second being the failure to observe and remove that ovary during the hysterectomy on June 3, 1992. The opinion of the plaintiffs' expert, Dr. Richard H. Warburton, which was included in the summary judgment materials, was that, "in spite of the fact that at the laparoscopy in March of 1992 no left ovary was seen, probably because of endometriosis and adhesions .. . the ovary should have been identified at the time of her surgery in June of 1992, when she had her hysterectomy." In addition, as the
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