Chace v. Curran, 06-P-1452.

CourtAppeals Court of Massachusetts
Citation881 N.E.2d 792,71 Mass. App. Ct. 258
Docket NumberNo. 06-P-1452.,06-P-1452.
PartiesAndrew CHACE & another<SMALL><SUP>1</SUP></SMALL> v. Arlene CURRAN & another.<SMALL><SUP>2</SUP></SMALL>
Decision Date25 February 2008
881 N.E.2d 792
71 Mass. App. Ct. 258
Andrew CHACE & another1
Arlene CURRAN & another.2
No. 06-P-1452.
Appeals Court of Massachusetts, Middlesex.
Argued September 6, 2007.
Decided February 25, 2008.

[881 N.E.2d 793]

Douglas N. Perlo, Boston, for Ann Taylor.

Robert L. Boston, Boston, for Arlene Curran.

Elizabeth N. Mulvey (David W. Suchecki, Boston, with her) for the plaintiffs.

Present: RAPOZA, C.J., GRASSO, & McHUGH, JJ.


71 Mass. App. Ct. 258

The defendants, both health care providers,

71 Mass. App. Ct. 259

from an order of a Superior Court judge denying their motions to dismiss the plaintiffs' amended complaint. At issue is whether allegations of the defendants' intentional falsification of medical records gave rise to actions in fraud that survive the dismissal, as untimely, of the plaintiffs' underlying claims of medical malpractice. We affirm and conclude that the motion judge did not err in allowing the plaintiffs to proceed on their amended complaint.

Background. Sharon Judkins gave birth to Andrew Chace on September 22, 1995. During the course of the birth, Judkins exhibited signs of a complication known as a prolapsed cord, in which the umbilical cord is delivered through the vaginal canal before the fetus. As a result, Judkins's obstetrician, Dr. Robert Shannon, alerted personnel and an emergency Caesarian section procedure, was performed. Upon delivery, Andrew required resuscitation due to a lack of oxygen. Present and attending to the resuscitation efforts were Nurse Shelagh Galvin and both defendants, Dr. Arlene Curran and Nurse Ann Taylor.

On March 29, 2001, the plaintiffs filed a complaint against Dr. Shannon, alleging that negligence during Andrew's delivery caused him to suffer permanent severe physical and mental disabilities. On March 25, 2004, during pretrial discovery, Nurse Galvin revealed for the first time at her deposition that the medical records prepared by Curran and Taylor were materially inaccurate and incomplete to the extent that they did not divulge that once he was delivered, Andrew was deprived of therapeutic oxygen for several minutes during the resuscitation procedure. On June 3, 2004, almost nine years after Andrew's birth, the plaintiffs commenced the

881 N.E.2d 794

present action, alleging counts of negligence, loss of consortium, emotional distress, fraudulent concealment, and intentional misrepresentation and fraud against Curran and Taylor.

A Superior Court judge allowed the defendants' motions to dismiss all counts against Curran and Taylor on the basis of the running of the medical malpractice statutes of repose applicable to minors and adults. See G.L. c. 231, § 60D, and G.L. c. 260, § 4. The plaintiffs' counts alleging fraudulent concealment and intentional misrepresentation were dismissed without prejudice, however, and leave was granted to the plaintiffs to amend them

71 Mass. App. Ct. 260

to set forth facts with sufficient particularity.3 See Mass.R.Civ.P. 9(b), 365 Mass. 751 (1974).

Upon the plaintiffs' later filing of an amended complaint, each defendant responded with motions to dismiss pursuant to Mass.R.Civ.P. 12(b)(6), 365 Mass. 755 (1974). By supporting memoranda, the defendants restated their position that the claims, even as amended, were barred by the medical malpractice statutes of repose. After a hearing, a second Superior Court judge denied both motions, concluding that the plaintiffs' amended claims were distinct from those asserting negligent medical treatment. Thus, he reasoned,

"Notwithstanding the strong legislative policy behind the statutes of repose relating to claims brought against providers of medical services as recently articulated in Joslyn [v. Chang, 445 Mass. 344, 837 N.E.2d 1107 (2005)], and Rudenauer [v. Zafiropoulos, 445 Mass. 353, 837 N.E.2d 278 (2005)], the torts of intentional misrepresentation and fraud in the context of the facts as alleged in the plaintiffs' complaint are not subject to dismissal as claims related to treatment [under G.L. c. 231, § 60D, and G.L. c. 260, § 4]. Measured against the standard which governs a motion to dismiss for failure to state a claim upon which relief may be granted under Rule 12(b)(6), those statutes of repose do not serve to bar the independent intentional torts alleged by the plaintiffs."

A single justice of this court allowed the defendants to file interlocutory appeals pursuant to G.L. c. 231, § 118.

Discussion.4 In their underlying claims of malpractice against

71 Mass. App. Ct. 261


881 N.E.2d 795

and Taylor, which were dismissed as untimely, the plaintiffs sought recovery for personal injuries arising out of the defendants' alleged delivery of substandard medical care in resuscitating Andrew. Their two newly amended claims, which are labeled "fraudulent concealment" and "intentional misrepresentation-fraud," state a different set of facts, however. In those counts the plaintiffs aver that they were in a fiduciary relationship with. Curran and Taylor on September 22, 1995, when each dictated or made intentional omissions and false and misleading statements in Andrew's patient care record concerning the events surrounding his resuscitation immediately following the birth. Specifically, they assert that neither provider noted a failed initial attempt to insert a breathing tube into Andrew or that he was left without oxygen for several minutes before a second doctor took over the resuscitation and got the oxygen flowing properly. Instead, the plaintiffs claim, the record was written in a manner that would lead them to conclude, incorrectly, that the efforts to revive Andrew proceeded without incident or without resulting personal injury to him.

The plaintiffs further allege that each defendant made the respective foregoing false statements and omissions knowing and believing that a cause of action for medical malpractice existed for their substandard care and with the intent fraudulently to conceal their lack of due care during the resuscitation process. Last, the plaintiffs claim that they were induced to rely on such

71 Mass. App. Ct. 262

statements and were thus prevented from timely filing suit against the defendants for their negligence prior to the running of the applicable statutes of limitations and repose.

Citing Joslyn v. Chang, 445 Mass. 344, 346-352, 837 N.E.2d 1107 (2005), the defendants continue to seek refuge in the medical malpractice statutes of repose, G.L. c. 231, § 60D,5 and G.L. c. 260, § 4,6 applicable to minors and adults respectively, arguing that in recasting their claims

881 N.E.2d 796

for relief as intentional torts, both plaintiffs seek an improper "end run" around those statutes.7 We agree with the defendants that irrespective of the plaintiffs' labels, so long as the "core" of the plaintiffs' amended complaint alleges improper medical treatment by the defendants, it is subject to all provisions of the medical malpractice act,8 including applicable statutes of repose. Johnston v. Stein, 29 Mass.App.Ct. 996, 996-997, 562 N.E.2d 1365 (1990). Lambley v. Kameny, 43 Mass.App.Ct.

71 Mass. App. Ct. 263

277, 280, 682 N.E.2d 907 (1997) ("[T]he label attached to a pleading or motion is far less important than its substance"). In our view, however, a fair reading of the amended complaint indicates that the allegations state viable causes of action for which the medical malpractice statutes of repose do not apply in these circumstances.

As noted previously, the two causes of action contained in the plaintiffs' amended complaint are labeled "fraudulent congealment" and "intentional misrepresentation-fraud." The former closely tracks the wording of G.L. c. 260, 12,9 which provides for the tolling of the statute of limitations if a person entitled to bring a cause of action can demonstrate that a defendant fraudulently concealed that action from his knowledge. See Fowles v. Lingos, 30 Mass.App.Ct. 435, 438-441, 569 N.E.2d 416 (1991). The plaintiffs were unsuccessful in their attempt to toll the applicable repose periods by pleading under this particular tolling provision. In amending their complaint, they now seek to maintain the same pleading as a separate cause of action. See, e.g., McNulty v. Aetna Life Ins. Co., 305 Mass. 89, 25 N.E.2d 338 (1940) (implying existence of actionable tort of fraudulent concealment of cause of action, although concluding that facts as alleged were insufficient as matter of law to constitute fraud).

On closer examination, however, the plaintiffs' claim for fraudulent concealment is no different from their claim for intentional misrepresentation and fraud, which alleges that the defendants made false representations of material facts (related to the circumstances surrounding the resuscitation effort), with knowledge of their falsity, for the purpose of inducing the plaintiffs to act thereon, and that the plaintiffs relied upon the representations as true and acted upon them to their detriment (by letting the statutes of limitations and repose run on the potential cause of action). See Danca v. Taunton Say. Bank, 385 Mass. 1, 8, 429 N.E.2d 1129 (1982), citing Barrett Assocs. v. Aronson, 346 Mass. 150, 152, 190 N.E.2d 867 (1963). The count for intentional misrepresentation also alleges a fiduciary duty to disclose the potential cause of

71 Mass. App. Ct. 264

action. See Demoulas v. Demoulas Super Mkts., Inc., 424 Mass. 501, 519, 677 N.E.2d 159 (1997);

881 N.E.2d 797

Rood v. Newberg, 48 Mass.App.Ct. 185, 192, 718 N.E.2d 886 (1999) ("[N]ondisclosure may amount to fraud if a party `is under, a duty to the other [party] to exercise reasonable care to disclose the matter in question.' Restatement [Second] of Torts 551[1] [1977]"). Cf. Maloney v. Brackett, 275 Mass. 479, 482-484, 176 N.E. 604 (1931) (implying that doctor is bound by his fiduciary duty to his patient to disclose existence of facts upon which cause of action exists).10 Thus, in essence, both claims sound in fraud and allege the...

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