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Mendonca v. Walcott

Superior Court of Massachusetts, Norfolk

November 15, 2018

Vanessa MENDONCA
v.
Cassandra R. WALCOTT

          MEMORANDUM OF DECISION ON DEFENDANT’S MOTION TO DISMISS

          Thomas A. Connors, Justice of the Superior Court

          The plaintiff, Vanessa Mendonca, [1] has filed this lawsuit which alleges medical negligence. It is undisputed that the defendant, who is a pediatrician, and the plaintiff were in a physician-patient relationship at the time that the plaintiff alleges she sustained her harm. The alleged negligence which gave rise to that harm was the failure of the defendant to have diagnosed the plaintiff’s thyroid carcinoma, which included failing to have ordered adequate testing, all of which the plaintiff asserts deviated from the applicable standard of care.

         The defendant has filed a motion pursuant to Mass.R.Civ.P. 56 contending that she is entitled to judgment as a matter of law on the grounds that the plaintiff failed to file her complaint for relief within the three year statute of limitations which applies to such negligence actions. The plaintiff does not dispute that the three year statute controls, but she contends in her opposition to the motion that her filing was timely under governing law. The parties were heard on the motion on September 11, 2018.

         Summary Judgment Standard

         Summary judgment shall be granted where there are no genuine issues as to any material facts and where the moving party is entitled to judgment as a matter of law. Mass. Rule of Civil Procedure 56(c); Cassesso v. Commissioner of Correction, 390 Mass. 419, 422 (1983); Community Nat’l Bank v. Dawes, 369 Mass. 550, 553 (1976). The moving party bears the burden of establishing affirmatively the absence of a triable issue and that the summary judgment record entitles it to judgment as a matter of law. Pederson v. Time, Inc., 404 Mass. 14, 16-17 (1989). The moving party may satisfy this burden either by submitting affirmative evidence that negates an essential element of the opposing party’s case or by demonstrating that the opposing party has no reasonable expectation of proving an essential element of its case at trial. Flesner v. Technical Communications Corp., 410 Mass. 805, 809 (1991); Kourouvacilis v. General Motors Corp., 410 Mass. 706, 710 (1991).

         Once the moving party establishes the absence of a triable issue, the party opposing the motion must respond and allege specific facts establishing the existence of a genuine issue of material facts. Pederson, 404 Mass. at 17. The opposing party cannot defeat a motion for summary judgment by resting on its pleadings and mere assertions of disputed facts. LaLonde v. Eissner, 405 Mass. 207, 209 (1989). In deciding a motion under the Rule, the court may consider pleadings, depositions, answers to interrogatories, admissions on file, and affidavits. Community Nat’l Bank, 369 Mass. at 553.

         Where the basis for summary judgment is the defense of statute of limitations, "once the defendant establishes that the time period between the plaintiff’s injury and the plaintiff’s complaint exceeds the limitations period set forth in the applicable statute, the plaintiff bears the burden of alleging facts which would take his or her claim outside of the statute. McGuiness v. Cotter, 412 Mass. 617, 620 (1992) citing Riley v. Presnell, 409 Mass. 239, 243-44 (1991).

         Factual Background

          The factual background set forth is recited in the light most favorable to the non-moving party, the plaintiff, premised upon materials presented in the summary judgment record. Attorney General v. Bailey, 386 Mass. 367, 371 (1982). The plaintiff was born on July 17, 1997. In 2008, when she was ten years old, she began to receive her primary care from the defendant who is a pediatrician. It was noted in her earliest visit with the defendant that she was comparatively physically small, placing in the 14th percentile in height and in the 9th percentile in weight for children of her age.

         In January of 2009, the plaintiff saw the defendant with a complaint of swollen glands in her neck. In response, her blood count was tested and she was administered an antibiotic. Later that year in March, she was seen by the defendant for her annual physical examination. It was noted that her comparative height and weight both measured at a lower percentile than previously, 11th percentile for height and 4th percentile for weight. No examination was conducted of the neck area that had prompted the plaintiff’s visit the few months earlier and no tests were ordered specifically to address whether any particularized physical condition may have contributed to smaller stature or weight.

         The following year in April of 2010, the plaintiff was seen for her next annual physical examination. The defendant now recorded further change in her comparative height and weight, the 5th percentile for height and the 1st for weight. The defendant attributed the cause, as he had the year prior, to poor appetite, and again she ordered no testing to probe for possible etiology. During 2010, the plaintiff was seen several times by the defendant for various medical concerns, which included headaches and eyestrain on October 13. On that occasion, a neck examination was documented which made no note of any mass or abnormality. Photographic evidence submitted by the plaintiff at about that time, however, depicts her as having a visible swelling in the area of her thyroid gland.

         At the plaintiff’s annual physical exam in May of 2011, Dr. Walcott noted an improvement in her weight gain which she attributed to nutritional counseling. While no measure of comparative height and weight was made, the defendant did note the plaintiff’s short stature which she attributed to genetic issues.

         Vanessa returned to see Dr. Walcott in the fall of 2011 with complaints of abdominal distress. She was diagnosed with severe menstrual cramping. The following month, on December 22, she returned to the defendant’s office complaining of a lump in her throat. She stated it had been there for a long time, and her mother, Rosa Mendonca, stated that it had been getting larger. A nurse practitioner who examined Vanessa felt her thyroid area, noting it felt larger on its left side, and she ordered blood tests. Vanessa returned a week later to see Dr. Walcott who palpated the thyroid, noting again an enlargement of the left lobe area, and she ordered an ultrasound exam and a surgical consult.

         A needle biopsy procedure was performed on the plaintiff’s neck area on January 18, 2012. That procedure resulted in the diagnosis of papillary thyroid carcinoma, which was noted in the pathologist’s final report dated January 24, 2012. On February 29 of 2012, the plaintiff underwent surgery at Boston Children’s Hospital during which her thyroid gland was removed. She was diagnosed with papillary thyroid carcinoma with local metastases, including involvement of twelve to fifteen lymph nodes. Subsequent to her surgery, she was diagnosed with pulmonary metasteses for which she continued to receive treatment, including radio iodine ablation. That latter condition ...


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