Joslyn v. Chang

• Decision Date: 21 November 2005
• Citation: 445 Mass. 344,837 N.E.2d 1107
• Parties: Stephanie JOSLYN & another,<SMALL><SUP>1</SUP></SMALL> individually and as administrators,<SMALL><SUP>2</SUP></SMALL> v. Anthony C. CHANG & others.<SMALL><SUP>3</SUP></SMALL>
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1107

837 N.E.2d 1107

445 Mass. 344

Stephanie JOSLYN & another,¹ individually and as administrators,² v. Anthony C. CHANG & others.³

Supreme Judicial Court of Massachusetts, Suffolk.

Argued October 6, 2005.

Decided November 21, 2005.

Charlotte E. Glinka, Taunton, for the plaintiffs.

George E. Wakeman, Jr., Boston, for the defendants.

Present: MARSHALL, C.J., GREANEY, IRELAND, SPINA, COWIN, SOSMAN, & CORDY, JJ.

COWIN, J.

On October 19, 1992, the heart and coronary artery of the plaintiffs' infant daughter were unexpectedly punctured during surgery by the defendant doctors Anthony C. Chang and David P. Nelson at the defendant hospital (Children's Hospital). The child suffered a significant loss of blood and died shortly thereafter. Approximately ten years later in 2002, an action for malpractice was commenced pursuant to the wrongful death statute, G.L. c. 229. A judge in the Superior Court granted summary judgment in favor of the defendants on the ground that the suit was untimely filed under the applicable statute of repose. We granted the plaintiffs' application for direct appellate review.

In opposition to the defendants' motion, the plaintiffs presented evidence that their delay was induced by misleading assertions and omissions of the defendants. The plaintiffs argue that they should be relieved of application of the statute of repose in G.L. c. 260, § 4, because the defendants fraudulently concealed their cause of action. It is unnecessary to determine whether misrepresentations of any kind took place or whether they amounted to fraudulent concealment, because we conclude that the relief the plaintiffs seek is contrary to the purpose and absolute language of the statute of repose; thus, we affirm the grant of summary judgment.

Background. On a motion for summary judgment, we view the evidence in the light most favorable to the nonmoving party. Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120, 571 N.E.2d 357 (1991). Sentree Joslyn was born on July 3, 1991. At seven months of age, she was diagnosed with a rare, inherited metabolic disorder. The child soon began to suffer from problems with intake of nourishment, muscle weakness, and a general failure to thrive.

In October, 1992, Sentree was admitted to Children's Hospital. Tests showed that her heart had become enlarged and that fluid had built up around it. Doctors believed the fluid was impairing the heart's ability to pump blood, and advised the plaintiffs that surgery could remove the fluid. The plaintiffs understood that Chang would perform the operation, although they did not sign a consent form. In fact, Nelson, a resident and fellow, initiated the procedure while Chang supervised. During the surgery, Sentree's heart and coronary artery were punctured. On discovery of the injury, Chang intervened but Sentree died approximately one hour and ten minutes after the procedure began. The injury was a significant contributing factor in the child's death.

Chang told the plaintiffs that their daughter had died because her heart was "too weak to withstand the procedure." He did not mention the puncture and significant blood loss. At the time, no one from Children's Hospital told the plaintiffs that an event had occurred that caused a puncture or laceration of Sentree's heart, or that such an event resulted in an excessive loss of blood.

Sentree's death certificate, which the plaintiffs reviewed, was signed by Nelson and noted the manner of death as "natural." It attributed her death to the ailments for which she was being treated. The plaintiffs also authorized an autopsy because doctors wished to study the rare disorder from which Sentree suffered. The plaintiffs did not obtain the results of the autopsy or other records: hospital staff told them that records were not sent to patients because the materials would contain incomprehensible medical terms. The plaintiffs took no further action at that time.

Much later, in 2001, at the suggestion of a pediatrician who was caring for their other daughter, the plaintiffs finally requested Sentree's records from Children's Hospital. The records revealed the surgical complications that contributed to Sentree's death.⁴

The plaintiffs filed suit against Chang and Children's Hospital on February 20, 2002, later amending their complaint to include Nelson. A judge in the Superior Court granted summary judgment,⁵ concluding that the applicable statute of repose had run on October 19, 1999, and that the filing of suit against the defendants two to three years later was untimely. The plaintiffs appealed.

Discussion. General Laws c. 260, § 4, provides in pertinent part that "in no event shall any . . . action" sounding in "contract or tort for malpractice, error or mistake against physicians, surgeons . . . hospitals and sanitoria" "be commenced more than seven years after occurrence of the act or omission which is the alleged cause of the injury upon which such action is based."⁶ This language constitutes a statute of repose. Nett v. Bellucci, 437 Mass. 630, 635, 774 N.E.2d 130 (2002). "The effect of a statute of repose is to place an absolute time limit on the liability of those within its protection and to abolish a plaintiff's cause of action thereafter, even if the plaintiff's injury does not occur, or is not discovered, until after the statute's time limit has expired." McGuinness v. Cotter, 412 Mass. 617, 622, 591 N.E.2d 659 (1992). Statutes of repose are to be contrasted with statutes of limitation, which commence at the time a cause of action accrues, typically when damages are sustained or discovered. See Franklin v. Albert, 381 Mass. 611, 411 N.E.2d 458 (1980).

The plaintiffs advance two arguments for relief from operation of the statute. First, they assert that the defendants are equitably estopped from invoking the defense of the statute of repose because they fraudulently concealed the plaintiffs' cause of action. Second, the plaintiffs contend that the running of the statute of repose is tolled pursuant to G.L. c. 260, § 12, which provides that fraudulent concealment tolls the determination of "the time limited for commencement of the action." The resolution of both arguments is controlled by the language of § 4, the history of this statute of repose, and our previous cases.

The genesis of the statute of repose in § 4 appears traceable to our decision in Franklin v. Albert, supra, pertaining to the statute of limitations for medical malpractice matters. See Harlfinger v. Martin, 435 Mass. 38, 41-42, 754 N.E.2d 63 (2001). Prior to the Franklin case, a cause of action accrued for purposes of the statute of limitations "at the time of the act of malpractice, `and not when the actual damage result[ed] or [was] ascertained.'" Franklin v. Albert, supra at 612, 411 N.E.2d 458, quoting Pasquale v. Chandler, 350 Mass. 450, 456, 215 N.E.2d 319 (1966). The rule was abrogated in the Franklin case and replaced by a more modern discovery rule, by which an action accrued only "when the plaintiff learn[ed], or reasonably should have learned, that he ha[d] been harmed by the defendant's conduct." Id. at 619, 411 N.E.2d 458.

In the Franklin decision, we noted that any concern that the new rule would "fan the medical malpractice crisis by resulting in more claims that [would] in turn contribute to higher insurance premiums and, finally, to curtailment of health care services," was "better addressed to the Legislature, which [was], of course, free to make a contrary reconciliation of the conflicting policies involved or to place an outside limit on the time for bringing a malpractice action" (emphasis added). Id. In this regard, we referred to the laws of several other States that had done precisely that. Id. at 619 n. 12, 411 N.E.2d 458.

The first legislative proposals concerning addition of a statute of repose appeared in 1981 and were referred to committee for study. See 1981 Senate Doc. Nos. 1762, 2030; 1981 Senate J. 714. This recurred each year through the General Court's 1985 session. See, e.g., 1985 Senate Doc. Nos. 1068, 1766, 2293; 1985 Senate J. 524. Enactment appears to have been stymied during this period by unfavorable reports of committee, see, e.g., 1984 Senate J. 332, and of a special commission created in 1975 to address a "crisis . . . in Massachusetts medical professional liability insurance."⁷ 1986 House Doc. No. 5355, at 5. The commission, in particular reported in 1983 that "the decision in Franklin v. Albert[ ] has caused some anxiety about possible increases in malpractice actions resulting from . . . the `discovery rule' . . . [but][a]t present [the commission] possesses no information suggesting that such an increase has occurred or will occur." 1983 House Doc. No. 5980, at 17.

By 1986, however, the commission's recommendation had changed. Now, it reported that a crisis existed concerning "extraordinary premium increases" for medical malpractice insurance, see 1986 House Doc. No. 5355 at 20, and elaborated that, "[f]or reasons still unexplained," medical malpractice claims increased fifty per cent in the second half of 1981. Id. at 6. Premiums soared 38.9 per cent in 1982. For the 1983 to 1984 period,⁸ the joint underwriting association (JUA), an entity created by statute in 1975 to write medical malpractice insurance policies, recommended an astonishing 189.2 per cent increase. Id. at 7. See St.1975, c. 362, § 6 (creating JUA). The special commission, as well as other interested groups, appeared to believe that the Franklin decision was at least a factor in fomenting this crisis. 1986 House Doc. No. 5355, at 6.

The statute of repose in § 4 was adopted in the wake of this report.⁹ See St.1986, c. 351, § 30. The relevant language was identical to the 1981 proposals, with two modifications. First, the term of the statute was different. Early proposals called for a three or four-year statute of repose. See, e.g., 1981 Senate Doc. Nos. 1762, 2030. Instead, the House...