Darviris v. Petros
| Decision Date | 18 September 2003 |
| Docket Number | No. 00-P-1678.,00-P-1678. |
| Citation | 59 Mass. App. Ct. 323 |
| Court | Appeals Court of Massachusetts |
| Parties | Georgia DARVIRIS & another[ 1 ] v. James G. PETROS. |
Practice, Civil, Summary judgment. Limitations, Statute of. Medical Malpractice, Consent to medical treatment. Negligence, Medical malpractice. Consumer Protection Act, Unfair or deceptive act, Trade or commerce.
Civil action commenced in the Superior Court Department on March 8, 1999.
The case was heard by Leila R. Kern, J., on a motion for summary judgment.
Herbert D. Friedman (Herbert Abrams with him) for the plaintiffs.
Claudia A. Hunter for the defendant.
Present: Greenberg, Beck, & Mills, JJ.
The plaintiff patient, Georgia Darviris, and her husband appeal from a Superior Court judgment of dismissal following allowance of the defendant's summary judgment motion. The defendant is James G. Petros, M.D., the plaintiff's doctor. Of the six counts in the plaintiff's complaint, the judge held that five were barred by the statute of limitations. As to the sixth, alleging violation of G.L. c. 93A, the judge concluded that there was "no support for the argument that [the doctor's] act was unfair or deceptive." We affirm the judgment.
Factual background. In reviewing a judge's action on a motion for summary judgment, we consider the facts in the light most favorable to the nonmoving party. See Miller v. Mooney, 431 Mass. 57, 60 (2000). Summary judgment is appropriate only when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact." Mass.R.Civ.P. 56(c), 365 Mass. 824 (1974); Riley v. Presnell, 409 Mass. 239, 244 (1991). The facts most favorable to the plaintiff are as follows.
After consulting the defendant initially in 1992 for rectal bleeding and pain, the plaintiff sought his care again on December 14, 1995, for the same symptoms. The defendant examined her, told her that "it was the [anal] fissure again," and recommended surgery. The plaintiff asked the defendant about side effects. He reassured her that she wouldn't have any because of her relative youth. She asked about treatment of side effects if they should occur. He said that at worst there was a simple procedure he could do in his office. They also discussed how long the surgery would take. The operation was scheduled for January 10, 1996.
Sometime before the surgery the plaintiff telephoned the defendant to tell him that her symptoms had disappeared, that she had no pain or bleeding. She asked whether they should cancel the scheduled surgery. The defendant responded that she needed the surgery to "take care of this problem once and for all."
On January 4, 1996, six days before surgery, the plaintiff went for a preoperative evaluation at the hospital where the surgery was to be performed. While there she signed an eight-section form captioned "A Consent to an Operation." A woman sitting at a desk, who may have been a doctor, told her that the form was part of the procedure, and that she needed to sign the consent form to allow Dr. Petros to perform the operation on her. The plaintiff signed the form without reading it.
The first section of the form authorized a "fissurectomy" under the direction of the defendant. Section two provided that the "[t]he nature and purpose of the operation ... and the possible alternative methods of treatment [had] been explained to [her] by Dr. Helo." The third section concerned the opportunity to ask questions. The fourth was a consent "to the performance of operations, procedures, and treatment in addition to or different from those [then] contemplated ... which the above-named doctor ... may ... consider necessary or advisable." Above the plaintiff's signature, near the bottom of the page, the form stated in capital letters, "I certify that I have read and fully understand the above consent, that the explanations ... referred to were made, that all blanks or statements requiring insertion or completion were filled in, and that inapplicable paragraphs, if any, were stricken before I signed." At the bottom of the page, the "signature of witness" appears to be "GHelo." However, the plaintiff testified at deposition that she did not meet Dr. Helo until the morning of the surgery and that Dr. Helo was not the person who gave her the consent form to sign on January 4.
The plaintiff had requested spinal anesthesia for the surgery so that she would be awake. During surgery she heard the defendant say to others in attendance, "Look at how nicely it healed itself." In the recovery room, the defendant told the plaintiff that he had performed a hemorrhoidectomy rather than a fissurectomy. The plaintiff was very upset. She told the defendant she never would have agreed to that procedure because her godfather had had a very bad experience with it.
After the surgery the plaintiff was in terrible pain, which she attributed to the hemorrhoidectomy. She felt as though there was an open wound. The plaintiff visited the defendant weekly for follow-up treatment; the defendant consistently reassured her, telling her that she was getting better. On March 9, 1996, the plaintiff was in agony. She understood that the pain she was experiencing was the result of the hemorrhoidectomy. The next day, the defendant performed a second surgery on her. At that time, the defendant determined that one of the hemorrhoidectomy wounds had not healed. An opinion letter from an expert stated that the plaintiff's symptoms, as documented in her medical records, were known side effects or complications of the surgery performed on January 10 and "were proximally caused by the excisional hemorrhoidectomy performed upon her on [that day]." The plaintiff saw the defendant three times at weekly intervals following the second surgery, after which it appears she obtained her medical care elsewhere.
The complaint and the judge's decision. According to the docket sheet, the plaintiff filed her complaint against the defendant on March 8, 1999, three years after the second surgery. She filed a six-count amended complaint on June 7, 1999. The first three counts alleged different theories for the defendant's failure to obtain the plaintiff's consent for a hemorrhoidectomy— simple battery, failure of informed consent, and violation of G.L. c. 111, § 70E, the so-called patient's bill of rights. See Commonwealth v. Dube, 413 Mass. 570, 572 (1992). There were also claims for negligent infliction of emotional distress, loss of consortium (the husband's sole claim), and violation of G.L. c. 93A.
The judge ruled that all of the claims, aside from the c. 93A count, were barred by the three-year statute of limitations period set out in G.L. c. 260, § 4. As for the G.L. c. 93A claim, she determined that even assuming the defendant was negligent in failing to obtain informed consent, which the doctor denied, an unfair and deceptive act under G.L. c. 93A requires a showing of more than negligence. Finding no such showing, the judge allowed summary judgment on that claim as well.
Statute of limitations. In his answer to the plaintiff's amended complaint, the defendant contended that the "action [was] not brought within the time specified by the General Laws of this Commonwealth." "Once the defendant pleads the statute of limitations as a defense to a malpractice action and establishes that the action was brought more than three years from the date of the injury, the burden of proving facts that take the case outside the impact of the statute falls to the plaintiff." Riley v. Presnell, 409 Mass. 239, 243-244 (1991).
The plaintiff did not carry her burden. She does not dispute that while she was still in the recovery room, she learned that the defendant had performed surgery for which she had not given permission. In the days and weeks following the unconsented-to surgery, she experienced painful and unpleasant side effects which she consistently ascribed to the surgery. On appeal she argues that although she knew on January 10, 1996, that she did not give her consent to the surgery, she did not know that the procedure itself had caused her harm until the second surgery was required. She claims that prior to that time she thought her symptoms were "within the bounds of the possible outcomes of the [anticipated] fissurectomy."
"Massachusetts does not require discovery of each of the elements of the cause of action—duty, breach, causation, and damages before the limitation clock in G.L. c. 260, § 4 starts ticking." Malapanis v. Shirazi, 21 Mass.App.Ct. 378, 382 (1986). "A plaintiff who invokes the discovery rule by claiming that her delay in filing suit stems from a failure to recognize the cause of her injuries bears the burden of proving both an actual lack of causal knowledge and the objective reasonableness of that lack of knowledge." Doe v. Creighton, 439 Mass. 281, 283 (2003).
In this case, the plaintiff's complaint for failure to obtain informed consent, assuming materiality, see Harnish v. Children's Hosp. Med. Center, 387 Mass. 152, 155-156 (1982); Aceto v. Dougherty, 415 Mass. 654, 661 (1993), accrued almost immediately. The plaintiff knew that she had been subjected to surgery she did not authorize; indeed, she insists she would not have authorized because of her godfather's bad experience. She therefore also knew, or should have known, that she was not informed of the potential complications of the surgery. Moreover, according to her deposition, she consistently ascribed her suffering to the surgery. The judge did not err in allowing the defendant's motion for summary judgment on these claims.
The c. 93A claim. In ruling on the plaintiff's c. 93A claim, for which the four-year statute of limitations had not expired, see G.L. c. 260, § 5A, the judge, citing Meyer v. Wagner, 429 Mass. 410, 424 (1999), held that even assuming negligence in the failure to obtain informed consent, more...
To continue reading
Request your trial