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Joslyn v. Chang11/21/2005
It attributed her death to the ailments for which she was being treated. The plaintiffs also authorized an autopsy because doctors wished to study the rare disorder from which Sentree suffered. The plaintiffs did not obtain the results of the autopsy or other records: hospital staff told them that records were not sent to patients because the materials would contain incomprehensible medical terms. The plaintiffs took no further action at that time.
Much later, in 2001, at the suggestion of a pediatrician who was caring for their other daughter, the plaintiffs finally requested Sentree's records from Children's Hospital. The records revealed the surgical complications that contributed to Sentree's death.
The plaintiffs filed suit against Chang and Children's Hospital on February 20, 2002, later amending their complaint to include Nelson. A judge in the Superior Court granted summary judgment, concluding that the applicable statute of repose had run on October 19, 1999, and that the filing of suit against the defendants two to three years later was untimely. The plaintiffs appealed.
Discussion
General Laws c. 260, § 4, provides in pertinent part that "in no event shall any . . . action" sounding in "contract or tort for malpractice, error or mistake against physicians, surgeons . . . hospitals and sanitoria" "be commenced more than seven years after occurrence of the act or omission which is the alleged cause of the injury upon which such action is based." This language constitutes a statute of repose. Nett v. Bellucci, 437 Mass. 630, 635 (2002). "The effect of a statute of repose is to place an absolute time limit on the liability of those within its protection and to abolish a plaintiff's cause of action thereafter, even if the plaintiff's injury does not occur, or is not discovered, until after the statute's time limit has expired." McGuinness v. Cotter, 412 Mass. 617, 622 (1992). Statutes of repose are to be contrasted with statutes of limitation, which commence at the time a cause of action accrues, typically when damages are sustained or discovered. See Franklin v. Albert, 381 Mass. 611 (1980).
The plaintiffs advance two arguments for relief from operation of the statute. First, they assert that the defendants are equitably estopped from invoking the defense of the statute of repose because they fraudulently concealed the plaintiffs' cause of action. Second, the plaintiffs contend that the running of the statute of repose is tolled pursuant to G. L. c. 260, § 12, which provides that fraudulent concealment tolls the determination of "the time limited for commencement of the action." The resolution of both arguments is controlled by the language of § 4, the history of this statute of repose, and our previous cases.
The genesis of the statute of repose in § 4 appears traceable to our decision in Franklin v. Albert, supra, pertaining to the statute of limitations for medical malpractice matters. See Harlfinger v. Martin, 435 Mass. 38, 41-42 (2001). Prior to the Franklin case, a cause of action accrued for purposes of the statute of limitations "at the time of the act of malpractice, 'and not when the actual damage result or ascertained.'" Franklin v. Albert, supra at 612, quoting Pasquale v. Chandler, 350 Mass. 450, 456 (1966). The rule was abrogated in the Franklin case and replaced by a more modern discovery rule, by which an action accrued only "when the plaintiff learn , or reasonably should have learned, that he ha been harmed by the defendant's conduct." Id. at 619.
In the Franklin decision, we noted that any concern that the new rule would "fan the medical malpractice crisis by resulting in more claims that [would]
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