Parr, et al. v. Rosenthal (Lawyers Weekly No. 10-139-16)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-12014 MICHAEL PARR[1] & another[2] vs. DANIEL ROSENTHAL. Essex. April 5, 2016. – September 2, 2016. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ.[3] Limitations, Statute of. Medical Malpractice, Statute of limitations. Negligence, Doctor, Medical malpractice. Civil action commenced in the Superior Court Department on March 9, 2009. The case was tried before Thomas R. Murtaugh, J., and a motion for a new trial was heard by him. After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review. Myles W. McDonough (James S. Hamrock, Jr., with him) for the defendant. David J. Gallagher for the plaintiffs. Annette Gonthier Kiely, Adam R. Satin, & Thomas R. Murphy, for Massachusetts Academy of Trial Attorneys, amicus curiae, submitted a brief. John J. Barter, for Professional Liability Foundation, Ltd., amicus curiae, submitted a brief. GANTS, C.J. The plaintiffs commenced this medical malpractice action against the defendant in the Superior Court for his alleged negligence in connection with a “radio frequency ablation” (RFA) procedure he performed on the leg of their minor son, which caused severe burning and eventually resulted in the amputation of the child’s leg. The jury did not reach the issue of negligence because they found that, more than three years before the plaintiffs filed the action, they knew or reasonably should have known that the child had been harmed by the defendant’s conduct, so the action was barred by the statute of limitations for medical malpractice claims. The plaintiffs contend that the jury should have been instructed on the so-called “continuing treatment doctrine” applicable to medical malpractice claims, a doctrine that heretofore has not been recognized under Massachusetts law. Generally speaking, the doctrine states that a cause of action does not accrue, and therefore the statute of limitations clock does not begin to run, for medical malpractice claims during the period that an allegedly negligent physician continues to treat the patient for the same or a related condition. See, e.g., Borgia v. New York, 12 N.Y.2d 151, 156-157 (1962). We now recognize the doctrine under Massachusetts law and hold that the statute of limitations for a medical malpractice claim generally does not begin to run while the plaintiff and the defendant physician continue to have a […]
Parr v. Rosenthal (Lawyers Weekly No. 11-096-15)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 13-P-1150 Appeals Court WILLIAM PARR[1] vs. DANIEL ROSENTHAL. No. 13-P-1150. Essex. September 8, 2014. – August 7, 2015. Present: Trainor, Rubin, & Sullivan, JJ. Limitations, Statute of. Negligence, Doctor. Medical Malpractice, Statute of limitations. Civil action commenced in the Superior Court Department on March 9, 2009. The case was heard by Thomas R. Murtagh, J., and a motion for a new trial was heard by him. Douglas Smith for the plaintiff. James S. Hamrock, Jr., for the defendant. TRAINOR, J. The plaintiff brought a medical malpractice action against the defendant. The jury concluded, pursuant to the judge’s instructions, that the statute of limitations had run because the plaintiff knew or reasonably should have known more than three years before filing his complaint that he had been harmed by the defendant.[2],[3] Judgment entered for the defendant, and the plaintiff’s subsequent motion for a new trial was denied. The plaintiff appeals, arguing that it was error to deny his requested instruction concerning the continuing treatment doctrine as a mechanism for tolling the statute of limitations.[4] We conclude that the continuing treatment doctrine is applicable in Massachusetts and is fairly raised by the facts presented at trial. Factual background. We review the evidence presented at trial that is relevant to the requested instruction on the continuing treatment doctrine.[5] The cause of action arose out of a radiofrequency ablation (RFA) procedure that was performed by the defendant on November 4, 2005, and resulted in a burn to and the eventual amputation of William’s[6],[7] leg. William was born with a lump in his right leg. Within a few weeks of William’s birth the Parrs were referred to the sarcoma group at the Massachusetts General Hospital (MGH).[8] When William was about eight years old, Dr. Mark Gephardt performed surgery on the lesion and determined that it was engulfing most of the calf muscle and impacting William’s nerves and blood vessels. Dr. Gephardt could remove only a small portion of the lesion. Pathology later determined that the lesion was a desmoid tumor.[9],[10] Shortly after the surgery Dr. Gephardt left MGH and William’s primary care was assumed by Dr. David Ebb, a pediatric oncologist, and Dr. Kevin Raskin, an orthopedic surgeon.[11],[12] Both doctors were members of the sarcoma group. William was followed for many years and is still […]