Doyle v. Shubs

• Decision Date: 12 July 1989
• Docket Number: Civ. A. No. 87-2278-WD.
• Citation: 717 F. Supp. 946
• Parties: Natalie DOYLE and Gerald Doyle, Plaintiffs, v. Gerald A. SHUBS, M.D., Defendant.
• Court: U.S. District Court — District of Massachusetts

717 F. Supp. 946

Natalie DOYLE and Gerald Doyle, Plaintiffs, v. Gerald A. SHUBS, M.D., Defendant.

Civ. A. No. 87-2278-WD.

United States District Court, D. Massachusetts.

July 12, 1989.

Delphis R. Jones, East Greenwich, R.I., L. Barry Tinkoff, Jeffrey S. Entin, Sahady, Entin & Entin, Fall River, Mass., for plaintiffs.

Edward T. Crossen, Morrison, Mahoney & Miller, Boston, Mass., for defendant.

MEMORANDUM AND ORDER

WOODLOCK, District Judge.

This medical malpractice action against Dr. Gerald Shubs, arises from a hysterectomy he performed on Natalie Doyle in February, 1980. Since the operation, Ms. Doyle's medical condition has substantially deteriorated despite a number of additional surgical procedures. She has lost control over the functioning of her bowels and has been in constant pain.

This action was not commenced, however, until December 2, 1986 when the complaint was filed in the District of Rhode Island. Plaintiffs' counsel moved on July 22, 1987 to transfer the case to the District of Massachusetts stating in their motion:

The only reason why this action commenced in the Federal Court for the District of Rhode Island was for the convenience of plaintiff's sic former counsel, then a Rhode Island practicing attorney, and because the defendant was believed to be living in Rhode Island, although service of process was never made upon him.

After the motion to transfer was allowed on September 14, 1987, the case was filed in this court on September 15, 1987. When no proof of service had been received, a Conditional Order of Dismissal was entered on January 6, 1988, pursuant to Fed.R. Civ.P. 4(j), notifying counsel that the case would be dismissed within 20 days unless proof of service was filed or good cause was shown. A request for additional time to effect service filed January 21, 1988 was granted permitting 45 days to file proof of service. On March 7, 1988 the summons was returned showing service on the defendant on February 29, 1988.

As required by statute, the case was submitted to a medical tribunal for a hearing on the question of negligence. Mass. Gen.L. ch. 231, § 60B. The tribunal held a hearing on November 30, 1988, but has not yet rendered a decision.¹ Dr. Shubs has moved for summary judgment on the ground that the statute of limitations bars both Ms. Doyle's claim and her husband's claim for loss of consortium.

I

At the outset, I must confront a question concerning the propriety of hearing the summary judgment motion before the medical tribunal has rendered its decision.

The function of the medical tribunal in Massachusetts is to "determine if the evidence presented if properly substantiated is sufficient to raise a legitimate question of liability appropriate for judicial inquiry or whether the plaintiff's case is merely an unfortunate medical result." Mass.Gen.L. ch. 231, § 60B; see DiGiovanni v. Latimer, 390 Mass. 265, 268-9, 454 N.E.2d 483 (1983).

Whether the claim is barred by the statute of limitations is not an issue within the jurisdiction of the tribunal, but is to be raised before the court. McMahon v. Glixman, 379 Mass. 60, 67-8, 393 N.E.2d 875 (1979).² When the issue may be determined by the court is less clear.

Section 60B requires that the tribunal "evaluate only the medical aspects of a malpractice claim," Salem Orthopedic Surgeons, Inc. v. Quinn, 377 Mass. 514, 521, 386 N.E.2d 1268 (1979), and determine whether evidence exists sufficient to defeat the equivalent of a directed verdict motion by a defendant. DiGiovanni, 390 Mass. at 269, 454 N.E.2d 483. The statute does not expressly require that the parties submit to the tribunal before the court can consider any of their claims or defenses.

There is no statutory language mandating, nor have the Massachusetts courts interpreted the statute as requiring, exhaustion of the tribunal process before any dispositive question of law may be heard by the court. Because § 60B was enacted with a view toward controlling medical malpractice insurance costs, Salem Orthopedic, 377 Mass. at 517, 386 N.E.2d 1268, consideration of motions that might dispose of the claims as a matter of law at the earliest possible time would be consistent with the intent of the legislature.

While there are no cases directly addressing the court's authority to hear motions prior to a finding by the tribunal, state courts have routinely entertained such motions without objection. See, e.g., Spring v. Geriatric Authority of Holyoke, 394 Mass. 274, 277, 475 N.E.2d 727 (1985) (court granted partial summary judgment and directed verdicts before referring surviving malpractice claims to tribunal); McMahon, 379 Mass. at 62, 393 N.E.2d 875 (motion for summary judgment heard and denied prior to submission to tribunal).

I therefore conclude that it is appropriate for this court to consider defendant's summary judgment motion, notwithstanding the pendency of the proceeding before the tribunal. I now turn to the merits of the underlying motion.

II

In medical malpractice actions brought in federal court pursuant to diversity jurisdiction, the state statute of limitations applies. See generally Buckley v. American Honda Motor Co., Inc., 780 F.2d 1 (1st Cir.1985). In Massachusetts, suits for medical malpractice must be commenced within three years "after the cause of action accrues." Mass.Gen.L. ch. 260, § 4.

Massachusetts has adopted the "discovery rule" for medical malpractice claims, acknowledging that "a plaintiff should be put on notice before his claim is barred." Franklin v. Albert, 381 Mass. 611, 619, 411 N.E.2d 458 (1980). The rule established by the Supreme Judicial Court ("SJC") is that "a cause of action for medical malpractice does not `accrue' ... until a patient learns, or reasonably should have learned, that he has been harmed as a result of a defendant's conduct." Id. at 612, 411 N.E.2d 458. The SJC has emphasized that the "discovery rule" applies only to "inherently unknowable" causes of action. Flynn v. Associated Press, 401 Mass. 776, 781, 519 N.E.2d 1304 (1988). The discovery rule was created in order to avoid the "manifest injustice" of punishing "blameless ignorance" on the part of a plaintiff. Franklin v. Albert, 381 Mass. at 618, 411 N.E.2d 458.

Thus the statute of limitations begins to run "when a reasonably prudent person (in the tort claimant's position), reacting to any suspicious circumstances of which he might have been aware ..., should have discovered that he had been harmed by his physician's treatment." Malapanis v. Shirazi, 21 Mass.App.Ct. 378, 383, 487 N.E.2d 533 (1986).

The plaintiffs suggest in their brief that the "discovery rule" renders the relationship between Ms. Doyle's injury and her medical treatment inherently unknowable until she had "actual knowledge of any malpractice or negligence of the defendant." Plaintiffs' Memorandum in Opposition to Summary Judgment at 5. That overstates the applicable law. The First Circuit, in a holding later approved by the Supreme Judicial Court, could

find no indication in Massachusetts law that the notice necessary to start the statute running includes notice that defendant has breached a legal duty to plaintiff. The only indications are to the contrary. The statute does not begin to run until plaintiff knows he has been injured `as a result of conduct of defendants.' But knowledge that he has been injured by negligent conduct is something more and different.

Fidler v. Eastman Kodak Co., 714 F.2d 192, 199 (1st Cir.1983) (citation omitted) (emphasis in original), approved, Fidler v. E.M. Parker Co., 394 Mass. 534, 545, 476 N.E.2d 595 (1985). Hence, "discovery of the exact legal theory upon which a claim of malpractice can be based is not among the inherently unknowable facts that will operate to delay the accrual of a cause of action." Malapanis, 21 Mass.App.Ct. at 388, 487 N.E.2d 533.

On an appropriate record, summary judgment may be granted on the question when the applicable statute of limitations begins to run. Fidler v. E.M. Parker, 394 Mass. at 545-46, 476 N.E.2d 595; Malapanis, 21 Mass.App.Ct. at 383, 487 N.E.2d 533. The sole question before me is thus when, on this record, it appears Ms. Doyle — and her husband for purposes of his loss of consortium claim — reasonably should have learned that she had been harmed as a result of the hysterectomy and other abdominal surgery performed by Dr. Shubs. Alternatively stated, the question is when the harmful consequences of the conduct of Dr. Shubs in treating Ms. Doyle ceased to be inherently unknowable.

Ms. Doyle's hysterectomy took place in February, 1980. As early as April, 1980, when she began experiencing pains and loss of bladder control, Dr. Shubs said: "What must have happened is that when a drain was taken out, your bladder must have adhered to your stomach wall." Doyle Affidavit at 2. He referred her to Dr. Kaiser, a urologist, who, at Ms. Doyle's first visit in April, 1980, "instantaneously" made a connection between her recent hysterectomy and her urinary incontinence. Kaiser Deposition at 15-17. Dr. Kaiser further stated in his deposition that he and Ms. Doyle "discussed several times in the office that her bladder difficulties were related to complications from her hysterectomy." Id. at 43-44.

These various indications from others observing a link between Ms. Doyle's condition and the performance of the 1980 hysterectomy were clearly sufficient to put a "reasonably prudent person" in her position on notice of that connection. Moreover, Ms. Doyle herself made a similar observation over three years prior to filing this action.

In March, 1983, Ms. Doyle submitted a complaint to the Massachusetts Board of Registration in Medicine, in which she wrote:

All that I can say is I had none of these problems before the hysterectomy. As far as I am concerned the doctor should have been more careful. There is no way a hole could have gotten into my bladder except by surgery. I have Xrays showing a normal bladder before

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