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PArr v. Rosenthal

Supreme Judicial Court of Massachusetts, Essex

September 2, 2016

MICHAEL PARR [1] & another [2]

          Heard: April 5, 2016.

         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.

          Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. [3]

          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 doctor-patient relationship and the plaintiff continues to receive treatment from the physician for the same or a related condition. We also hold that the continuing treatment exception to the discovery rule terminates once a patient (or the parent or guardian of a minor patient) learns that the physician's negligence was the cause of his or her injury. We further hold that, once the allegedly negligent physician no longer has any role in treating the plaintiff, the continuing treatment doctrine does not apply even if the physician had at one time been part of the same "treatment team" as the physicians who continue to provide care. Here, where the jury found that the plaintiffs knew or reasonably should have known more than three years before commencing suit that they had been harmed by the conduct of the defendant, and where the defendant's participation in treating the plaintiff ended more than three years before the suit was filed, the cause of action accrued more than three years before the action was commenced and therefore was not timely under the statute of limitations. We thus affirm the judgment in favor of the defendant.[4]


         We recite the facts in the light most favorable to the plaintiffs. See Lipchitz v. Raytheon Co., 434 Mass. 493, 499 (2001). William Parr was born on September 3, 1994.[5] At birth, he had a large lump at the back of his right calf. Within a few weeks, he was taken by his parents, Michele Parr and Michael Parr, to Massachusetts General Hospital (MGH), where he was referred to the "sarcoma group" for imaging studies and a biopsy. The sarcoma group is a team of orthopedic surgeons, general surgeons, radiation oncologists, medical oncologists, and others who treat tumors of the connective tissues, including bones, muscles, fat, nerves, and other tissues. The sarcoma group works on an interdisciplinary model. The team members meet twice weekly and have "very close interdisciplinary relationships."

         Initially, William's lump was diagnosed by the sarcoma group as a "hamartoma."[6] By January, 2003, when William was eight years old, the size of the lump had increased, causing William occasionally to limp. At that time, Dr. Mark Gebhardt, a member of the sarcoma group at MGH, performed a biopsy in which he removed pieces of the lump for the pathologist to examine. Gebhardt determined that the lump was engulfing much of William's calf muscle and was having an impact on his nerves and blood vessels. At this time, it was determined that the lump was a "desmoid tumor." Desmoid tumors are relatively rare, benign tumors but can grow in such a way as to infiltrate normal tissue and impair bodily functions.

         Soon after the biopsy, Gebhardt left MGH. William's care was assumed by Dr. David Ebb, a pediatric oncologist, and Dr. Kevin Raskin, an orthopedic surgeon, both of whom were on the staff at MGH and were members of the sarcoma group. At some point prior to November, 2005, Raskin and Ebb proposed and scheduled a surgery on William's tumor, which at this point had caused abnormality in his gait. Meanwhile, Michele continued to research other options, and she discussed the possibility of RFA treatment with Ebb and Raskin.[7] After one of the meetings of the sarcoma group, Raskin and Ebb approached the defendant, Dr. Daniel Rosenthal, about the possibility of performing RFA on William's desmoid tumor. Rosenthal was a board certified radiologist on the staff at MGH and had been a member of the sarcoma group since 1978. He "invented" RFA, meaning that he was the first physician to use RFA to treat a tumor, and was a recognized leader in the field.[8] Through the sarcoma group, he was generally familiar with William's case. Raskin and Ebb then put Michele in touch with Rosenthal. They told Michele that Rosenthal "was the best doctor in the business basically. He was . . . one of the founders of radiofrequency ablation and had worked at [MGH] for a long time." Rosenthal eventually agreed to perform the procedure and it was presented and approved at subsequent sarcoma group meetings. Rosenthal had never performed RFA on a desmoid tumor before performing the procedure on William, and as of the date of trial had not performed another RFA on a desmoid tumor.

         Prior to the procedure, Rosenthal told Michele that the procedure was reasonable and could help William. Michele testified that Rosenthal told her that RFA could "kill" the tumor, but he did not explain any risks of the procedure. Rosenthal said the procedure would be a day surgery, that William would come out with "band-aids" at the sites where the probe had gone in, and that he would be home by the afternoon.

         Michael brought William to MGH on the morning of November 4, 2005, for the RFA procedure, and Michele arrived soon thereafter. Rosenthal briefly showed Michael and William a drawing describing the procedure, demonstrating the location of the tumor and other areas he was going to treat. Michael signed a consent form, which listed the risks of the procedure, including bleeding, infection, nerve damage, and failure to cure. The form did not disclose any risk of burns to the skin, blood vessels, or other vital structures. Moreover, the risks associated with the use of a tourniquet were not mentioned.

         Rosenthal completed the first three of his planned four ablations when he noticed what he described as "superficial skin blisters" in the area behind William's knee. At that point, despite not having completed all of the planned ablations, Rosenthal realized that he had already burned more than the entire planned treatment area. On seeing the burned area behind William's knee, Rosenthal then stopped the procedure and called two other sarcoma group members, Ebb and Raskin, to the operating room. A decision was made to discontinue the procedure.

         Ebb explained to Michael and Michele that there had been a complication during the procedure, and that William had suffered a burn above the tumor site. Michele testified that she was not told the cause of the burn or how serious it was, but was told that William "would recover and be fine." Michael testified that he and Michele did not know how serious the burn was at first and that he "never knew" how bad the burn was. Rosenthal originally described it to them as a "superficial burn." Raskin referred to the burn as a "superficial blister" in his notes on the day of the RFA procedure.

         William was admitted to MGH for one week after the RFA procedure and was then transferred to Spaulding Rehabilitation Hospital (Spaulding) for an additional five weeks. Rosenthal visited William every day during his week-long stay at MGH and several more times at Spaulding. Rosenthal's last note in William's medical file, made during a visit on November 7, 2005, states that there was "clear improvement in his nerve function." In fact, by that time, the nerves had been irreparably damaged from the burn. The burned area ultimately grew to full thickness, creating a very foul smelling, necrotic blackened hole in the back of William's knee that spanned the entire area of the knee from medial to lateral. The nerves were destroyed.

         When William returned home from Spaulding, he received in-home physical therapy, and a visiting nurse provided medical care. He also continued to receive care from the sarcoma group. The burn did not heal during this period despite efforts throughout the winter that were directed by Raskin. The burn eventually became infected, and William was readmitted to MGH in February, 2006. Raskin performed debridements of the burn. On March 19, 2006, after the seventh debridement, it became clear that William's leg could not be saved, and his parents were told that amputation below the knee was necessary. On March 20, 2006, William's leg was amputated below the knee.

         About two years later, a second amputation, this one above the knee, became necessary because of continued infections, and because there was insufficient muscle preserved to enable use of a prosthesis or to make the knee functional. Thus, on March 12, 2008, Raskin performed an amputation above the knee on William's right leg. According to Rosenthal's testimony at trial, the need for the amputations was a direct result of the complication that occurred during the RFA procedure. Neither Ebb, Raskin, nor Rosenthal at any time described to the Parrs what had caused the burn and the resulting injuries. Michael was told that it was simply an "anomaly." The Parrs did not know what had happened, despite asking repeatedly. As Michael testified, "We trusted them, we worked with them and we did not know."

         Michele and Michael, as parents and next friends of William, filed a civil complaint in the Superior Court on March 9, 2009, alleging malpractice by Rosenthal with respect to the RFA procedure performed by him on November 4, 2005.[9] The case proceeded to a jury trial. Because, under G. L. c. 231, § 60D, a medical malpractice action brought on behalf of a minor who is at least six years old must "be commenced within three years from the date the cause of action accrues, " the defendant argued that he was entitled to judgment because the action was not timely filed. At the charge conference and in his proposed jury instructions, the plaintiffs' counsel argued that the statute of limitations was tolled while William's treatment was continuing. Relying on the continuing treatment doctrine, he argued that a cause of action for medical malpractice does not accrue until treatment of a plaintiff by a defendant doctor, or doctors with whom he works, has terminated.[10]

         The judge declined to give such an instruction. He correctly stated that Massachusetts had not yet recognized the continuing treatment doctrine. He further stated that he "would suggest" that Massachusetts would not "adopt that theory, " and that, in any event, the doctrine would not apply to the facts of this case. The judge said the defendant "rendered a very specific treatment" and "[t]hat was it"; "[h]e was not involved in the treatment of William after that." In response to counsel's argument that the cause of action did not accrue while the plaintiff was being treated by the "treatment team" of which the defendant was a member, the judge noted that no Massachusetts case had taken that position in a medical malpractice case.

         As to the question whether the claim was timely brought within the statute of limitations, the judge instructed the jury as follows:

"Ordinarily a personal injury claim must be brought within three years of the date the cause of action accrues or arises. Here, this case was commenced on March 6, 2009. [11] The question is whether the claim was brought within three years after the date on which the cause of action arose. The general rule is that a cause of action accrues on the date of the plaintiff's injury[, ] in this case, William's injury. However, that rule does not apply where the plaintiff did not know or could not reasonably have known of the cause of action. . . . [T]he question comes down to whether the plaintiffs knew or should have known that William Parr had been harmed to an appreciable or not insignificant extent by Dr. Rosenthal's conduct."

         The judge also explained the meaning of "should have known" in this context:

"An action for medical malpractice accrues when a reasonably prudent person in the plaintiff's position reacting to any suspicious circumstances for which they might have been aware should have discovered that his medical care given by the physician may have caused . . . William appreciable or not insignificant injury or harm. Certainty of causation is not required. Rather, notice of likely cause is sufficient to start the statute running[, ] imposing on the potential litigant the duty to discover from legal, scientific and medical communities whether a theory of causation supports a legal claim."

         Plaintiffs' counsel timely objected to the judge's decision not to give a continuing treatment instruction regarding the statute of limitations.

         The jury answered "yes" to the first special verdict question: "Did the plaintiffs know or should they reasonably have known prior [to] March 6th, 2006, that they had been . . . harmed by the conduct of the defendant?" Because they answered "yes" to this question, they did not reach the other questions, including whether the defendant was negligent and, if so, whether his negligence was a substantial contributing factor in causing William's injury. Judgment entered for the defendant. The plaintiffs moved for a new trial, claiming that the judge erred by failing to furnish the jury with the continuing treatment instruction. The judge denied the motion. The plaintiffs appealed from the judge's decision not to give the continuing treatment instruction, and from the denial of their motion for a new trial.

         The Appeals Court reversed the judgment and remanded the case for a new trial. Parrv.Rosenthal, 87 Mass.App.Ct. 787 (2015). Relying by analogy on this court's adoption of the "continuing representation" doctrine in legal malpractice cases, see, e.g., Murphyv.Smith, 411 Mass. 133, 137 (1991), the Appeals Court recognized the "continuing treatment" doctrine in medical malpractice cases. The court held that the limitations period does not begin to run during the continuing treatment of a patient for the same injury on which the action for medical malpractice is based. See Parr, supra at 788, 792-793. The court also declared that the continuing treatment doctrine "will toll the statute of limitations so long as the patient remains in ...

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