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Nett v. Bellucci9/4/2002
Suffolk.
May 7, 2002
Repose, Statute of. Medical Malpractice. Negligence, Doctor, Statute of repose. Practice, Civil, Complaint, Amendment.
The United States Court of Appeals for the First Circuit has certified the following questions to this court, pursuant to S.J.C. Rule 1:03, as appearing in 382 Mass. 700 (1981):
"(1) Is the operative date for commencement of an action for purposes of the Massachusetts statutes of repose the date of filing of a motion and supporting memorandum for leave to amend a complaint to add a party (assuming timely service), or is the operative date the date the amended complaint is filed after leave of court is granted, when leave of court is required by the Rules of Civil Procedure to file an amended complaint?
"(2) If the answer to Question No. 1 is that the operative date is the date of filing of the motion for leave to amend, do the policies underlying the statutes of repose require that such filings be in compliance with the local rules of court applicable to the filing of such motions, or do those policies permit the court in its discretion to excuse non-compliance with the local rules?" Nett v. Bellucci, 269 F.3d 9 (1st Cir. 2001).
We answer the certified questions as follows: (1) The operative date for commencement of an action for purposes of a statute of repose is the date of filing of a motion for leave to amend a complaint to add a party; and (2) the policies underlying the statute of repose do not require that the motion for leave to amend comply with the local rules, as long as the motion itself is accepted for filing within the period provided by the statute of repose.
1. Facts. We summarize the facts as set forth in the opinion accompanying the certification order, augmented by details provided in the record of the underlying proceedings. See Nett v. Bellucci, 269 F.3d 1, 2-5 (1st Cir. 2001). Aaron Nett was born at Milford-Whitinsville Hospital on April 2, 1992, weighing more than eleven pounds. The delivery was complicated because of Aaron's large size, and the infant suffered a nerve injury as a result of those complications. On March 26, 1992, one week prior to Aaron's birth, Dr. Peter Gross had performed and interpreted an ultrasound, estimating the fetal weight at only eight pounds. Dr. Mitchell Bellucci, the obstetrician attending Aaron's delivery, had relied on that ultrasound reading and had therefore not anticipated the complications that ensued during the delivery of a much larger baby.
On April 30, 1996, the plaintiffs filed a complaint against Dr. Bellucci in the United States District Court for the District of Massachusetts, alleging that he had been negligent in the prenatal care and delivery of Aaron. As part of his defense, Dr. Bellucci took the position that he had reasonably relied on the estimated fetal weight provided by the radiologist's ultrasound reading, and that his failure to anticipate delivery of a baby weighing eleven pounds was therefore not negligent.
On June 30, 1998, the plaintiffs served a subpoena duces tecum on the hospital seeking production of the ultrasound films. The hospital told the plaintiffs that the films had been destroyed. At his August 4, 1998, deposition, Dr. Gross testified that his efforts to obtain the ultrasound films had also been unsuccessful, as the hospital had similarly informed him that the films were no longer available. The hospital, responding to a second subpoena duces tecum, finally recovered and produced the ultrasound films on February 4, 1999.
On March 10, 1999, after obtaining an expert's review of the films and an opinion concerning their proper reading, the plaintiffs
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