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Rudenauer v. Zafiropoulos11/21/2005
he related condition ends. The plaintiff relies heavily on cases from other jurisdictions that involve statutes of limitations. These are not relevant and have no application to our statute of repose. She also refers to cases from a small number of jurisdictions that toll their statutes of repose. For example, Connecticut courts toll the statute of repose during treatment by, or continued duty of, a doctor for the same condition to which his or her alleged negligence is related. See Blanchette v. Barrett, 229 Conn. 256, 274-275 (1994). Other jurisdictions toll their statutes of repose until the end of a course of continuous negligent treatment if the effects of a series of acts or omissions are so cumulative and inextricable as to render the series actionable as a single, continuing wrong under their State laws. See Ewing v. Beck, 520 A.2d 653, 662 (Del. 1987); Cunningham v. Huffman, 154 Ill. 2d 398, 405-406 (1993). We conclude that Massachusetts law is to the contrary and, even were there negligence, the plaintiff no longer has a viable cause of action for any act or omission that occurred seven years before she filed suit.
Our cases have consistently held that statutes of repose are not subject to any form of tolling. See Protective Life Ins. Co. v. Sullivan, 425 Mass. 615, 631 n.19 (1997). See also Tindol v. Boston Hous. Auth., 396 Mass. 515, 517-518 (1986); Klein v. Catalano, 386 Mass. 701, 702, 710-713 (1982). A repose period begins to run from some "definitely established event," abolishing a plaintiff's cause of action thereafter, even if the injury does not occur, or is not discovered, until after the statute's time limit has expired. See McGuinness v. Cotter, supra at 622, citing Nissan Motor Corp. in U.S.A. v. Commissioner of Revenue, 407 Mass. 153, 158 (1990); Klein v. Catalano, supra at 702.
A statute of repose stands in contrast to a statute of limitations, which governs the time within which a legal proceeding must be commenced after the cause of action accrues. See Harlfinger v. Martin, 435 Mass. 38, 40-41 (2001). " he determination of when a cause of action accrues, causing the statute of limitations to run, has long been the product of judicial interpretation in this Commonwealth." Franklin v. Albert, 381 Mass. 611, 617 (1980), citing Cannon v. Sears, Roebuck & Co., 374 Mass. 739, 740 (1978). A statute of repose, on the other hand, itself identifies the event that commences the running of the statutory period, leaving nothing to judicial determination.
Application of a statute of repose can seem harsh. It "may impose great hardship on a plaintiff who has suffered injury and has a meritorious claim," but does not suffer or discover it during the repose period. Klein v. Catalano, supra at 713. See Harlfinger v. Martin, supra at 46-47. However, a statute of repose also secures for some a certainty "that the slate has been wiped clean of ancient obligations" and the need to resist claims based on them. Klein v. Catalano, supra at 709.
The repose provision of G. L. c. 260, ยง 4, reflects a legislative determination that an absolute time limit is appropriate in medical malpractice actions despite those conflicting values. Its clear language, as supported by its history and purpose, permits no conclusion other than that the Legislature intended to extinguish malpractice claims seven years after negligent acts or omissions even when a doctor's treatment of, or responsibility for, a condition continued beyond the alleged negligence.
Section 4 states the time bar unequivocally: "in no event shall any such action be commenced" after seven years. The fact that the Legislature inserted one exception into the statute of repose, for "the leaving of a f
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