381 Mass. 611 (1980), Franklin v. Albert

Citation381 Mass. 611, 411 N.E.2d 458
Party NamePeter FRANKLIN et al. [ 1] v. Thomas W. ALBERT et al. [ 2]
Case DateOctober 09, 1980
CourtUnited States State Supreme Judicial Court of Massachusetts

Page 611

381 Mass. 611 (1980)

411 N.E.2d 458

Peter FRANKLIN et al. 1

v.

Thomas W. ALBERT et al. 2

Supreme Judicial Court of Massachusetts, Norfolk.

October 9, 1980

Argued May 8, 1980.

[411 N.E.2d 459] Michael E. Mone, Boston (Patricia L. Kelly, Arlington, with him), for plaintiffs.

Philander S. Ratzkoff, Boston (Nancy A. Serventi, Winchester, with him), for defendants.

Wayne A. Budd, Paul R. Sugarman, Neil Sugarman, Steven L. Hoffman, Boston, for the Massachusetts Bar Ass'n, amicus curiae, submitted a brief.

Walter L. Landergan, Jr., Edwin J. Carr, Michael T. Gengler, Gerald V. May, Jr., and Carol R. Kirchick, Boston, for the Massachusetts Medical Society, amicus curiae, submitted a brief.

Before HENNESSEY, C. J., and QUIRICO, BRAUCHER, WILKINS, LIACOS and ABRAMS, JJ.

HENNESSEY, Chief Justice.

This is one of two similar cases decided today seeking reconsideration of the holding in Pasquale v.

Page 612

Chandler, 350 Mass. 450, 215 N.E.2d 319 (1966), that under the Massachusetts statute of limitations for medical malpractice 3 a cause of action "accrues" at the time of the act of malpractice, " 'and not when the actual damage results or is ascertained.' " Id. at 456, 215 N.E.2d at 322, quoting and reaffirming Cappuci v. Barone, 266 Mass. 578, 581, 165 N.E. 653 (1929).

It is the court's present opinion that Pasquale placed undue emphasis on legislative history in its refusal to examine the injustice of a rule that can deprive an injured plaintiff of any remedy even before he knows he has suffered harm. We now overrule the decisions in Pasquale and Capucci and hold that a cause of action for medical malpractice does not "accrue" under [411 N.E.2d 460] G.L. c. 260, § 4, until a patient learns, or reasonably should have learned, that he has been harmed as a result of a defendant's conduct.

The plaintiffs Peter Franklin and his wife brought an action against the defendants on July 27, 1978, claiming damages as a result of alleged medical malpractice. The plaintiffs' complaint and affidavit allege the following facts. Peter Franklin had complained of intermittent chest pain upon his admission to Massachusetts General Hospital in January, 1974, for oral surgery. A chest X-ray was ordered. Two days later, Franklin was discharged from the hospital by an unknown resident doctor, later found to be Dr. Thomas W. Albert. In his discharge summary, Dr. Albert noted that the X-ray taken of Franklin's chest was normal. In fact, the X-ray was not normal. The report prepared by the hospital's X-ray department noted "apparent left superior mediastinal widening" and concluded that "(f)urther evaluation of this is recommended." Nonetheless, Franklin was discharged without any further examination

Page 613

and without any knowledge on his part of the abnormal findings noted in the X-ray report.

In January of 1978, after experiencing flu-like symptoms, Franklin returned to Massachusetts General Hospital for a chest X-ray. That X-ray disclosed a malignancy, which was diagnosed as Hodgkin's disease. The plaintiffs allege that the "apparent left superior mediastinal widening" noted on the 1974 X-ray was an early manifestation of Hodgkin's disease and that the defendants' failure to report correctly and to evaluate further this finding was medical malpractice.

The plaintiffs filed suit approximately six months after their discovery of the findings of the original X-ray and four and a half years after the alleged act of malpractice. Both defendants in their answers pleaded the three-year statute of limitations, G.L. c. 260, § 4, 4 as an affirmative defense, and then moved for summary judgment on the same ground. On September 19, 1979, a medical malpractice tribunal, convened in accordance with G.L. c. 231, § 60B, unanimously found that the evidence submitted to it, if properly substantiated, was sufficient to raise a legitimate question of liability appropriate for judicial inquiry. On October 3, 1979, a judge of the Superior Court allowed the defendants' motions for summary judgment on the basis of the statute of limitations. The plaintiffs appealed, and their application for direct appellate review was allowed by this court.

In its initial interpretation of the statute of limitations for malpractice, in a case involving a gauze sponge left in the plaintiff's abdomen during an operation, this court held that the cause of action accrued on the date of the operation. Cappuci v. Barone, 266 Mass. 578, 581, 165 N.E. 653, 654 (1929). 5 The court reasoned that "(a)ny act of misconduct or negligence

Page 614

on (the) part (of the doctor) in the service undertaken was a breach of his contract, which gave rise to a right of action in contract or tort, and the statutory period began to run at that time, and not when the actual damage results or is ascertained." Id. No suggestion was offered as to how an injured plaintiff could pursue his theoretical right of action before he had any chance to discover he had been injured.

The Cappuci doctrine was reaffirmed in 1966 in Pasquale v. Chandler, 350 Mass. 450, 215 N.E.2d 319 (1966), a case involving similar facts. 6 The Pasquale court noted "we would be disposed to reconsider the question" but for "recent legislation." 350 Mass. at 456, 215 N.E.2d at 322. The "recent legislation" consisted primarily of the amendment of G.L. c. 260, § 4, by St. [411 N.E.2d 461] 1965, c. 302, relating solely to actions for medical malpractice. The 1965 amendment increased the limitation period from two years to three years, at a time when other actions for personal injuries were subject to a two-year limitation period. See G.L. c. 260, §§ 2, 2A, 4. In view of the fact that the 1965 amendment was substituted in the course of an enactment for a bill proposing a "discovery rule," 7 the Pasquale court thought the Legislature had reaffirmed the Cappuci doctrine that the cause of action accrued at the time of the act of...

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173 practice notes
  • 628 F.Supp. 1219 (D.Mass. 1986), Civ. A. 82-1672, Anderson v. W.R. Grace & Co.
    • United States
    • Federal Cases United States District Courts 1st Circuit United States District Courts. 1st Circuit. District of Massachusetts
    • January 3, 1986
    ...she has been harmed as a result of the defendant's conduct. Levin v. Berley, 728 F.2d 551, 553 (1st Cir.1984) (citing Franklin v. Albert, 381 Mass. 611, 411 N.E.2d 458, 460 (1980)). The Supreme Judicial Court has not decided whether the discovery rule will toll the statute of limitations co......
  • 15 Mass.App.Ct. 193 (1983), Salinsky v. Perma-Home Corp.
    • United States
    • Massachusetts Appeals Court of Massachusetts
    • January 20, 1983
    ...Co. of Quincy, 367 Mass. 503, 507-508, 327 N.E.2d 732 [1975] ). This also was not a case of professional malpractice. Franklin v. Albert, 381 Mass. 611, --- - ---, Mass.Adv.Sh. (1980) 2187, 2194-2197, 411 N.E.2d 458; Teller v. Schepens, 381 Mass. 621, --- - ---, Mass.Adv.Sh. (1980) 2199, 22......
  • 29 Mass.App.Ct. 215 (1990), 89-P-565, International Mobiles Corp. v. Corroon & Black/Fairfield & Ellis, Inc.
    • United States
    • Massachusetts Appeals Court of Massachusetts
    • September 14, 1990
    ...365 Mass. 83, 83-84, 310 N.E.2d 131 (1974); Friedman v. Jablonski, 371 Mass. 482, 485-486, 358 N.E.2d 994 (1976); Franklin v. Albert, 381 Mass. 611, 618-619, 411 N.E.2d 458 (1980); White v. Peabody Constr. Co., 386 Mass. 121, 130, 434 N.E.2d 1015 (1982); Olsen v. Bell Tel. Labs., Inc., 388 ......
  • 39 Mass.App.Ct. 202 (1995), 94-P-514, Phinney v. Morgan
    • United States
    • Massachusetts Appeals Court of Massachusetts
    • August 28, 1995
    ...real estate fraud, Friedman v. Jablonski, 371 Mass. 482, 485-486, 358 N.E.2d 994 (1976); and medical malpractice, Franklin v. Albert, 381 Mass. 611, 618-619, 411 N.E.2d 458 (1980). Most recently, the rule was applied to an action for psychotherapeutic malpractice where the plaintiff was sex......
  • Request a trial to view additional results
173 cases
  • 628 F.Supp. 1219 (D.Mass. 1986), Civ. A. 82-1672, Anderson v. W.R. Grace & Co.
    • United States
    • Federal Cases United States District Courts 1st Circuit District of Massachusetts
    • January 3, 1986
    ...she has been harmed as a result of the defendant's conduct. Levin v. Berley, 728 F.2d 551, 553 (1st Cir.1984) (citing Franklin v. Albert, 381 Mass. 611, 411 N.E.2d 458, 460 (1980)). The Supreme Judicial Court has not decided whether the discovery rule will toll the statute of limitations co......
  • 15 Mass.App.Ct. 193 (1983), Salinsky v. Perma-Home Corp.
    • United States
    • Massachusetts Appeals Court of Massachusetts
    • January 20, 1983
    ...Co. of Quincy, 367 Mass. 503, 507-508, 327 N.E.2d 732 [1975] ). This also was not a case of professional malpractice. Franklin v. Albert, 381 Mass. 611, --- - ---, Mass.Adv.Sh. (1980) 2187, 2194-2197, 411 N.E.2d 458; Teller v. Schepens, 381 Mass. 621, --- - ---, Mass.Adv.Sh. (1980) 2199, 22......
  • 29 Mass.App.Ct. 215 (1990), 89-P-565, International Mobiles Corp. v. Corroon & Black/Fairfield & Ellis, Inc.
    • United States
    • Massachusetts Appeals Court of Massachusetts
    • September 14, 1990
    ...365 Mass. 83, 83-84, 310 N.E.2d 131 (1974); Friedman v. Jablonski, 371 Mass. 482, 485-486, 358 N.E.2d 994 (1976); Franklin v. Albert, 381 Mass. 611, 618-619, 411 N.E.2d 458 (1980); White v. Peabody Constr. Co., 386 Mass. 121, 130, 434 N.E.2d 1015 (1982); Olsen v. Bell Tel. Labs., Inc., 388 ......
  • 39 Mass.App.Ct. 202 (1995), 94-P-514, Phinney v. Morgan
    • United States
    • Massachusetts Appeals Court of Massachusetts
    • August 28, 1995
    ...real estate fraud, Friedman v. Jablonski, 371 Mass. 482, 485-486, 358 N.E.2d 994 (1976); and medical malpractice, Franklin v. Albert, 381 Mass. 611, 618-619, 411 N.E.2d 458 (1980). Most recently, the rule was applied to an action for psychotherapeutic malpractice where the plaintiff was sex......
  • Request a trial to view additional results