 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Rudenauer v. Zafiropoulos11/21/2005
nal adenocarcinoma, dark cell type (cancer). Rudenauer terminated his treatment with Zafiropoulos and another physician removed the kidney on January 15, 1996.
In August, 2000, Rudenauer presented to a third doctor with symptoms that ultimately proved to be fatal metastatic disease. Rudenauer passed away on October 8, 2000. On August 30, 2001, the plaintiff, Rudenauer's widow, filed suit against Zafiropoulos and the clinic for wrongful death, conscious pain and suffering, gross negligence, and loss of consortium. All claims are made under the wrongful death statute and, as such, comply with its three-year statute of limitations. See G. L. c. 229, §§ 2, 6. See also Fowles v. Lingos, 30 Mass. App. Ct. 435, 436-437 (1991).
The plaintiff's expert witnesses would testify that Zafiropoulos failed to act in accordance with then appropriate standards of care as follows. After April 19, 1990, Zafiropoulos should have conducted further CT scans of the lesion rather than monitoring it solely with ultrasounds; moreover, he should have biopsied the kidney when the lesion persisted for months. The witnesses would state that, had such tests been conducted, the cancer would have been detected and, if detected by September, 1994, likely cured. There is a suggestion in the record that Zafiropoulos failed to comply with the standard of care in 1995 by failing to diagnose the problem promptly on Rudenauer's return, but there is no evidence that any act or omission in 1995 was causally connected to Rudenauer's eventual death.
The defendants moved for summary judgment pursuant to Mass. R. Civ. P. 56, 365 Mass. 824 (1974), on the ground that the action was barred by the repose provision of G. L. c. 260, § 4. The judge denied the motion, citing a "genuine issue of material fact." As noted, a single justice of the Appeals Court allowed the defendants' motion for interlocutory review, and we transferred the matter here on our own motion.
Discussion
"A court must deny a motion for summary judgment if, viewing the evidence in the light most favorable to the nonmoving party [the plaintiff here], there exist genuine issues of material fact or the moving party is not entitled to judgment as a matter of law." Golub v. Milpo, Inc., 402 Mass. 397, 400 (1988). See Mass. R. Civ. P. 56 (c).
General Laws c. 260, § 4, second par., provides: "Actions of contract or tort for malpractice, error or mistake against physicians, surgeons . . . hospitals and sanitoria shall be commenced only within three years after the cause of action accrues, but in no event shall any such action 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 except where the action is based upon the leaving of a foreign object in the body" (emphasis supplied). The italicized language constitutes a statute of repose, " he effect [of which] is to place an absolute time limit on the liability of those within 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." Nett v. Bellucci, 437 Mass. 630, 635 (2002), quoting McGuinness v. Cotter, 412 Mass. 617, 622 (1992).
The plaintiff maintains that her claims are not barred by the statute of repose, even to the extent that they are based on acts or omissions that predated her action by more than seven years. She argues that § 4 should be read to include some form of "continuous treatment rule," which would toll the start of the repose period for any negligent acts or omissions until the doctor's treatment of, or responsibility for, t
Page 1 2 3 4 5 Massachusetts Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
By using the system, you agree to TERMS OF SERVICE
|