Darviris v. Petros
| Decision Date | 08 April 2004 |
| Parties | GEORGIA DARVIRIS & another v. JAMES G. PETROS. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Present: Marshall, C.J., Greaney, Ireland, Spina, Cowin, Sosman, & Cordy, JJ.
Herbert D. Friedman (Herbert Abrams with him) for the plaintiffs. John J. Barter (Claudia A. Hunter with him) for the defendant.
The following submitted briefs for amici curiae:
Thomas F. Reilly, Attorney General, Pamela Kogut & Sara Hinchey, Assistant Attorneys General, for the Commonwealth.
Carl Valvo for Professional Liability Foundation, Ltd., & another.
May a patient who claims to be the victim of an unauthorized medical procedure bring an action against her physician for unfair or deceptive practices in violation of G. L. c. 93A? That is the central issue in this case commenced by Georgia Darviris and her husband against James G. Petros, a surgeon, who performed an excisional hemorrhoidectomy on Darviris without her consent, she alleges, and in violation of what has been termed the "patients' bill of rights," G. L. c. 111, § 70E. Resolution of the question determines the outcome of the case because, as we shall explain, the remaining claims are barred by the applicable statute of limitations.2
Petros moved for summary judgment, arguing that the G. L. c. 93A claim failed to state a cause of action, and the remaining claims were barred by the statute of limitations. A judge in the Superior Court agreed, and allowed his motion. The Appeals Court affirmed. Darviris v. Petros, 59 Mass. App. Ct. 323 (2003). We granted the plaintiff's application for further appellate review, and now affirm the judgment of the Superior Court judge.
1. Background. We relate the record facts in their light most favorable to the plaintiffs, the nonmoving parties on the motion for summary judgment. See Remy v. MacDonald, 440 Mass. 675, 676 (2004). On December 14, 1995, Darviris sought treatment from James Petros for rectal bleeding and pain. According to Darviris, Petros recommended a simple surgical procedure, a fissurectomy, which involves cauterizing the anal fissures. Petros informed Darviris of possible side effects of that procedure, but said such effects were unlikely and could, in any event, be corrected by a procedure that could be performed in his office.3
Before her surgery, scheduled for January 10, 1996, the plaintiff's symptoms abated, and she inquired of Petros whether she should cancel the surgery. He assured her that the surgery was necessary because her symptoms were "chronic," and she agreed to proceed.
A few days before the surgery, the plaintiff went for a preoperative evaluation to the hospital where Petros was to perform the surgery. There she signed, but did not read, a consent form; the form authorized Petros to perform a fissurectomy. Darviris also consented "to the performance of operations, procedures, and treatment in addition to or different from those now contemplated," which Petros in his judgment may "consider necessary or advisable in my present illness." Although the consent form stated to the contrary,4 Darviris also testified at her deposition that no one discussed a fissurectomy, a hemorrhoidectomy, or any other procedure with her at that time.
On January 10, 1996, the plaintiff underwent surgery, as scheduled. At her request, and after discussion with an anesthesiologist, she received a spinal anesthesia, and remained awake throughout the procedure. She testified that, during the surgery, neither Petros nor any assistant discussed the procedure being performed on her. It was only after surgery that Petros told Darviris in the recovery room that he had performed a hemorrhoidectomy, and not a fissurectomy. Darviris became very upset, and informed Petros that she had not consented to a hemorrhoidectomy and would not have given any such consent because her godfather had suffered greatly as a consequence of undergoing the same procedure. Beginning the following day, and for the following two months, Darviris experienced terrible pain, which she attributed to the hemorrhoidectomy. Petros saw her weekly for follow-up visits, repeatedly assuring her that she was improving. Because Darviris continued to experience extreme pain, on Petros's advice, she underwent a second surgery conducted by Petros on March 10, 1996, during which Petros noted that one of the hemorrhoidectomy wounds had not healed. Sometime thereafter Darviris sought treatment from a different physician.
The plaintiffs filed their complaint on March 8, 1999, more than three years after the first surgery, but less than three years after the second surgery. An amended six-count complaint, filed on June 7, 1999, alleged three different theories for the defendant's failure to obtain his patient's consent for a hemorrhoidectomy — simple battery, failure of informed consent, and violation of G. L. c. 111, § 70E5 — and claims for negligent infliction of emotional distress, violation of G. L. c. 93A, and loss of consortium, the husband's only claim.
2. Chapter 93A claim. In ruling against the claim that Petros's alleged unauthorized surgery constituted an unfair or deceptive act in violation of G. L. c. 93A, the judge in the Superior Court concluded that "an unfair or deceptive act requires more than a finding of negligence." Because she found no such showing, the judge granted summary judgment on the G. L. c. 93A claim. Relying primarily on Riley v. Presnell, 409 Mass. 239, 243 (1991), and Little v. Rosenthal, 376 Mass. 573, 577 (1978), Darviris argues that G. L. c. 93A applies to all unfair or deceptive practices, including those that arise "in the context of a patient-physician relationship." The defendant's failure to obtain her informed consent to perform a hemorrhoidectomy, she says, constituted either a negligent omission of fact or a misrepresentation of fact, claims that are encompassed, she asserts, by G. L. c. 93A. In addition, she argues that the claimed violation of G. L. c. 111, § 70E, constitutes a per se violation of G. L. c. 93A, because the "patients' bill of rights" statute was promulgated "for the protection of the public's health, safety and welfare." See 940 Code Mass. Regs. § 3.16(3) (1993).6 We reject each argument.
"The purpose of G. L. c. 93A is to improve the commercial relationship between consumers and business persons and to encourage more equitable behavior in the marketplace." Poznik v. Massachusetts Med. Professional Ins. Ass'n, 417 Mass. 48, 53 (1994). While G. L. c. 93A is a statute of "broad impact," Greenfield Country Estates Tenants Ass'n v. Deep, 423 Mass. 81, 88 (1996), and cases cited, the limits of which are not precisely defined, Mechanics Nat'l Bank v. Killeen, 377 Mass. 100, 109 (1979), a violation of G. L. c. 93A requires, at the very least, more than a finding of mere negligence, as the Superior Court judge correctly noted. See Meyer v. Wagner, 429 Mass. 410, 424 (1999) (); Poly v. Moylan, 423 Mass. 141, 151 (1996), cert. denied, 519 U.S. 1114 (1997) (); Squeri v. McCarrick, 32 Mass. App. Ct. 203, 207 (1992) ( ).
No less than a claim of legal malpractice, a claim for the negligent delivery of medical care, without more, does not qualify for redress under our consumer protection statute, G. L. c. 93A. As the Appeals Court noted, Petros may have been negligent "in attending to his patient's preferences," but the record does not evidence that his conduct was unfair or deceptive, "particularly where the plaintiff admits she signed a consent form, without reading it, six days before the surgery." Darviris v. Petros, 59 Mass. App. Ct. 323, 329 (2003), citing O'Leary v. Nepomuceno, 44 Mass. App. Ct. 683, 685 (1998).7
While we have no hesitancy in concluding that the negligent provision of medical care, without more, does not give rise to a claim under G. L. c. 93A, this does not mean that all conduct of medical care providers is beyond the reach of that statute. As appellate courts in other jurisdictions have concluded, consumer protection statutes may be applied to the entrepreneurial and business aspects of providing medical services, for example, advertising and billing, even though those statutes do not reach medical malpractice claims. See, e.g., Haynes v. Yale-New Haven Hosp., 243 Conn. 17, 37-38 (1997) (); Simmons v. Stephenson, 84 S.W.3d 926, 928 (Ky. Ct. App. 2002) (); Nelson v. Ho, 222 Mich. App. 74, 82-84 (1997) (); Karlin v. IVF Am., Inc., 93 N.Y.2d 282, 293-294 (1999) (); Quimby v. Fine, 45 Wash. App. 175, 179-180 (1986) (). See also Dorn v. McTigue, 121 F. Supp. 2d 17, 19-20 (D.D.C. 2000) (); Gadson v. Newman, 807 F. Supp....
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