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NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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 […]