Franklin v. Albert

• Decision Date: 09 October 1980
• Citation: 381 Mass. 611,411 N.E.2d 458
• Parties: Peter FRANKLIN et al. 1 v. Thomas W. ALBERT et al. 2
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 458

411 N.E.2d 458

381 Mass. 611

Peter FRANKLIN et al. ¹ v. Thomas W. ALBERT et al. ²

Supreme Judicial Court of Massachusetts, Norfolk.

Argued May 8, 1980.

Decided Oct. 9, 1980.

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. 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 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 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 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 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 malpractice, and not at the time of discovery of the injury. 350 Mass. at 458, 215 N.E.2d 319.

The defendants' principal contention is that Pasquale forecloses further judicial consideration of the proper time of accrual of a medical malpractice claim. We disagree.

It can be argued in support of the result in Pasquale that, at the time of the 1965 amendment increasing to three years the limitation period for medical malpractice cases only, "the Legislature put medical malpractice cases in a distinct category." Hendrickson v. Sears, 365 Mass. 83, 87-88, 310 N.E.2d 131, 134 (1974). In 1973, however, the Legislature apparently abolished this "distinct category." By St. 1973, c. 777, §§ 1, 3, the Legislature amended both §§ 2A and 4 of G.L. c. 260 to provide a uniform three-year imitation period not only for medical malpractice cases, but for all personal injury claims. Assuming that there was in 1965 an expression of legislative policy separating medical malpractice cases from others presenting similar problems, a strong argument can be made that the Legislature abrogated that policy by its 1973 action, and, therefore, that the court, freed from the restraint imposed on itself in Pasquale, may consider the merits of a discovery rule versus a "time of the negligent act" rule. See Hendrickson v. Sears, 365 Mass. 83, 88, 310 N.E.2d 131 (1974) (following a discovery rule for cases of legal malpractice); Cannon v. Sears, Roebuck & Co., 374 Mass. 739, 742-743, 374 N.E.2d 582 (1978) (holding that a cause of action in products liability cases accrues at the time of the injury, rather than at the time of the negligent manufacture or sale).

Even if we do not accept this line of reasoning, we would overrule Pasquale. The Pasquale holding was based primarily on an interpretation of the legislature's failure to enact a proposed discovery rule as constituting legislative disapproval of discovery rule, sufficient to preclude any contrary judicial interpretation of the word "accrues" in G.L. c. 260, § 4. 350 Mass. at 456-458, 215 N.E.2d 319. We decline to place so much significance on this legislative history. In answering a similar contention that the legislative failure to pass a discovery bill showed the Legislature desired no change, the Supreme Court of Oregon remarked: "The fallacy in this argument is that no one knows why the legislature did not pass the proposed measures.... Did the legislature fail to pass the measures because it was satisfied with the (former Cappuci -type case) interpretations of the statute or because it was not in favor of (the) overall limitation (placed in the proposed discovery rule), or because it disliked the length of the overall limitation? The practicalities of the legislative process furnish many reasons for the lack of success of a measure other than legislative dislike for the principle involved in the legislation." Berry v. Branner, 245 Or. 307, 311, 421 P.2d 996, 998 (1966). See H. Hart & A. Sacks, the Legal Process: Basic Problems in the Making and Application of Law 1395-1396 (tent. ed. 1958), which lists a number of reasons legislators may have for opposing a particular bill, including, as may be true in the area under discussion here, the "(b)elief that the matter should be left to be handled by the normal processes of judicial development of decisional law, including the overruling of outstanding decisions to the extent that the sound growth of the law requires."

Similarly, we think the consideration and rejection of various proposed measures since Pasquale should not control our decision today. We recognize that the Legislature, in 1967, ⁸ 1975, ⁹ and 1979, ¹⁰ has rejected bills that would have amended G.L. c. 260, § 4, to include some form of discovery rule for medical malpractice cases. ¹¹ The defendants urge us to construe these rejected bills as constituting such definite proof of legislative disapproval of a discovery rule as to be binding in this court. However, we do not read the failure to enact these bills as necessarily disapproving, in principle, a discovery rule. Further, we reject the suggestion that defeated...