LeBlanc v. Friedman1/29/2003
Leblancs' counsel emphasized to the judge during the summary judgment argument:
" hat we're also claiming is that subsequent to the [March 16] procedure, when he thought or assumed that there was no ovary, he should have, in accordance with the standard of good medical practice, done further testing to determine whether or not there was in fact an ovary present. He could have done that by doing an ultrasound exam, which, by the way, had been done -- performed in the year 1991, and which showed two ovaries.
"Now, Dr. Friedman was also negligent in our allegation because he didn't refer to that prior ultrasound. So that's a separate and distinct act from March 16.
"Also, subsequent to March 16, he did not follow up and take hormonal tests which would have ruled out whether or not there was in fact another ovary present. That was negligent.
"When he did the hysterectomy, he again did not discover the ovary, and that, again, was a separate, distinct negligent act. It had nothing to do with the March 16 incident."
While the Leblancs do allege that Dr. Friedman's negligence of March 16 caused or contributed to Mrs. Leblanc's injury , there are disputed issues of material fact as to whether that injury resulted solely from the care and treatment provided on March 16, 1992, or whether other negligent failures to detect and remove the ovary were also a proximate cause of the injury. Care and treatment provided on other dates are not covered by the release, and the Leblancs' complaint may therefore still be actionable. The judge's order granting summary judgment was thus inappropriate.
The order of the judge is vacated and the case remanded to the Superior Court for further proceedings consistent with this opinion.
So ordered.
COWIN, J. (dissenting, with whom Sosman, J., joins).
The court erroneously concludes that, because the release at issue in this case makes several references to a specific instance of care, the scope of that release must consequently be limited to claims stemming from that instance of care. The court thus mistakes specific language for limiting language. In fact, general releases normally include a number of provisions specifically releasing particular claims, see, e.g., Sahli v. Bull HN Info. Sys., Inc., 437 Mass. 696, 697 n.3 (2002) (general release including specific release of discrimination based claims), Tupper v. Hancock, 319 Mass. 105, 106 n.1 (1946) (general release including specific release of claims stemming from particular act), Atlas Tack Corp. v. DiMasi, 37 Mass. App. Ct. 66, 67 n.3 (1994) (same), and standard form contract compilations often include model general releases formatted similarly to the one at issue here. See, e.g., Nichols Cyclopedia of Legal Forms Annotated § 4.2686 (2002) (general release form incorporating ten specific releases); 2C West's Federal Forms, District Courts -- Civil § 2817 (4th ed. Supp. 2002) (general release form with provision for specifying particular claims). The mere addition of specifics, therefore, does not automatically transform a general release into a limited release.
This document is, in fact, a release as "breathtaking in scope," ante at , as the drafters could possibly make it. The release's main clause provides:
" e, the undersigned do hereby jointly and severally for ourselves and each of our heirs, executors, administrators and assigns, remise, release and forever discharge the said Brigham & Women's Hospital, Elizabeth Stewart, M.D., Andrew Freidman , M.D. and Richard Wolf Medical Instruments Corp. of and from all debts, demands, actions, causes of actions, suits, accounts, covenants, co
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