Brown v. Vero Healthcare
| Docket Number | 21-P-949 |
| Decision Date | 25 May 2023 |
| Parties | GLORIA SHARYON BROWN v. VERO HEALTHCARE |
| Court | Appeals Court of Massachusetts |
Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (), are primarily directed to the parties and therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass.App.Ct. 258, 260 n.4 (2008).
The plaintiff, Gloria Sharyon Brown, appeals from a Superior Court judgment dismissing her complaint against the defendant, Vero Healthcare.[1] Although we sympathize with the plaintiff's loss of her husband, we are constrained to affirm the dismissal.
We accept the plaintiff's allegations as true for the purpose of reviewing the allowance of the defendant's motion to dismiss. See Curtis v. Herb Chambers I-95, Inc., 458 Mass. 674, 676 (2011). According to the plaintiff's complaint, between December 31, 2016, and January 7, 2017, her husband, George Brown, "received substandard medical care and lacked, because of under staffing, assistance at the time of his death and this lack of care aided in his death due also to negligence." As set forth more fully in the plaintiff's proposed first amended complaint, the plaintiff's husband, a patient at the defendant's skilled nursing facility, died at the facility on January 7, 2017, because the defendant's "servants, agents and/or employees . . . negligently cared for and treated the Plaintiff's decedent, George Brown, by failing to observe, monitor and provide the required standard of care and by failing to respond appropriately to the rapid decrease of blood pressure, pulse and oxygen rates." The plaintiff filed her complaint on February 10, 2020. The defendant moved to dismiss the complaint, arguing, among other things, that the complaint was filed beyond the three-year statute of limitations for malpractice claims. See G. L. c. 260, § 4. We need not belabor the complex procedural history of the case. For the purposes of this appeal, it is enough to state that the plaintiff opposed the motion to dismiss, arguing that she did not learn the cause of her husband's death until February 2017, when she received copies of his medical records and notes from the defendant. Accordingly, she argued, by operation of the discovery rule, her complaint was within the applicable statutes of limitations. More specifically, in her memorandum in support of her motion for leave to file a late opposition to the defendant's motion to dismiss, the plaintiff stated that she received the records on February 7, 2017; that by her calculation, the three-year limitations period elapsed on February 8, 2020; and that because February 8 was a Saturday, her complaint, filed on Monday, February 10, 2020, was timely. The motion judge concluded (without addressing the applicability of the discovery rule) that whether construed as claiming negligence, medical malpractice, or wrongful death, the complaint was beyond the three-year statute of limitations period. Although judges must "provide a self-represented party with a meaningful opportunity to present her case by guiding the proceedings in a neutral but engaged way," CMJ Mgt. Co. v. Wilkerson, 91 Mass.App.Ct. 276, 283 (2017), and "some leniency is appropriate" for self-represented litigants, Mmoe v. Commonwealth, 393 Mass. 617, 620 (1985), they are bound by the statutes and rules of procedure like any other litigant. Assuming without deciding that the discovery rule applies,[2] and accepting the plaintiff's representations that her cause of action did not accrue until February 7, 2017, but see Cannonball Fund, Ltd. v. Dutchess Capital Mgt., LLC, 84 Mass.App.Ct. 75, 90 (2013) (), her complaint was late.
The last day of the statute of limitations period is the anniversary of the date the cause of action accrued. See Mahoney v. DeMatteo-Flatiron LLP, 66 Mass.App.Ct. 903, 904 (2006). Under any statute applicable here, the plaintiff's action was required to be brought "within" three years. G. L. c. 229, § 2 (wrongful death actions must be brought "within three years from the date when the deceased's executor or administrator knew, or in the exercise of reasonable diligence, should have known of the factual basis for a cause of action"); G. L. c. 260, § 2A (); G. L. c. 260, § 4 ...
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