Rudenauer v. Zafiropoulos11/21/2005
Middlesex.
October 6, 2005
Present: Marshall, C.J., Greaney, Ireland, Spina, Cowin, Sosman, & Cordy, JJ.
Repose, Statute of. Wrongful Death. Medical Malpractice. Husband and Wife, Consortium. Negligence, Medical malpractice, Wrongful death, Causing loss of consortium, Statute of repose. Practice, Civil, Wrongful death, Claim barred by statute of repose.
Civil action commenced in the Superior Court Department on August 30, 2001.
A motion for summary judgment was heard by Kenneth J. Fishman, J., and an application for leave to prosecute an interlocutory appeal was allowed in the Appeals Court by Mark V. Green, J.
The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.
The plaintiff's husband, Dennis Rudenauer, died in 2000 from cancer that allegedly could have been detected and successfully treated had the defendant doctor, Panayiotis Zafiropoulos, properly monitored a kidney condition. In 2001, the plaintiff brought an action against Zafiropoulos and his employer, Waltham Urology Clinic, Inc. (clinic), for wrongful death, pain and suffering, gross negligence, and loss of consortium. Although the claims are substantially based on Zafiropoulos's treatment of Rudenauer in 1990 and 1991, the plaintiff contends that the doctor's duty to conduct follow-up monitoring after 1991, as well as her husband's return to the doctor in 1995, constitute ongoing treatment through 1995. The defendants moved unsuccessfully for summary judgment, claiming that the action was barred by the repose provision of G. L. c. 260, § 4. The Appeals Court granted the defendants leave to appeal from the denial of the motion. We transferred the case to this court on our own motion to determine whether the purported continuing treatment until 1995 relieves the plaintiff of application of the seven-year statute of repose clause of G. L. c. 260, § 4. We conclude that the absolute language of the statute precludes such a result.
Background
We summarize the relevant facts of this case as presented to the judge on motion for summary judgment. On February 9, 1990, Rudenauer went to Waltham Weston Hospital & Medical Center with "left flank pain." He had fallen on the snow five days earlier and began noticing pain the day before his visit. Because tests showed blood in his urine and a possible kidney mass, he was instructed to see a urologist.
The following day, February 10, Rudenauer made his first visit to Zafiropoulos at the clinic. Zafiropoulos ordered a CT scan on February 11, to rule out a kidney tumor. The CT scan was read as showing a mass lesion most consistent with an intrarenal hematoma, but with a recommendation for follow-up scans to rule out a renal mass of a different type.
Rudenauer continued to see Zafiropoulos over the next twenty-one months, until November 8, 1991, for testing and monitoring of the lesion. Zafiropoulos conducted or ordered the following tests: ultrasounds on February 16 and March 16, 1990; CT scans on March 29 and April 19, 1990; and additional ultrasounds on July 6, 1990, January 18, 1991, and November 8, 1991. The final ultrasound on November 8 "revealed a very nodular left kidney with no definite mass seen." Thereafter, there is no evidence that Rudenauer visited the doctor for over thirty-nine months, nor is there any evidence that Zafiropoulos followed up with him or contacted him in any way.
On February 21, 1995, Rudenauer returned to Zafiropoulos with pain on his left side and "outflow obstruction." Zafiropoulos conducted a series of tests during the next ten months, which, on December 15, 1995, revealed re
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