LeBlanc v. Friedman

• Decision Date: 29 January 2003
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: ROLAND A. LEBLANC & another v. ANDREW J. FRIEDMAN.

438 Mass. 592

781 NE 2d 1283

ROLAND A. LEBLANC & another¹ v. ANDREW J. FRIEDMAN.

Supreme Judicial Court of Massachusetts, Middlesex.

October 10, 2002.

January 29, 2003.

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

Carol A. Kelly for the defendant.

Barry D. Lang for the plaintiffs.

Steven L. Schreckinger & Anne Robbins, for Risk Management Foundation of the Harvard Medical Institutions, Inc., amicus curiae, submitted a brief.

CORDY, J.

This medical malpractice case turns on the interpretation of a release signed by the plaintiffs Diane and Roland Leblanc after it was discovered that a medical instrument had been left in Mrs. Leblanc's abdomen by the defendant Dr. Andrew J. Friedman during a surgical procedure. The Leblancs later sued Dr. Friedman for injuries resulting from acts of malpractice unrelated to the medical instrument. The motion judge granted Dr. Friedman's motion for summary judgment, holding that the broadly worded release covered the malpractice that the Leblancs alleged. The Appeals Court reversed, reasoning that because the parties had not anticipated the injury that was the subject of the malpractice claim, the release may have been the product of a mutual mistake, which would be dependent upon the intent of the parties, a genuine factual issue in dispute. Leblanc v. Friedman, 53 Mass. App. Ct. 697 (2002). This court granted the defendant's application for further appellate review. We agree with the Appeals Court that summary judgment was inappropriate in this case, but for different reasons.

1. Background. The facts of this case are largely undisputed. On June 28, 1991, Diane Leblanc, then under the care of Dr. Raymond Partridge, underwent an ultrasound after complaining of pelvic pain. The ultrasound determined that Mrs. Leblanc's left ovary was approximately one-half the size of her right one. It also detected indications of endometriosis. Mrs. Leblanc was diagnosed with endometriosis and was eventually referred to Dr. Friedman for treatment. On March 16, 1992, Dr. Friedman performed a laparoscopy (an internal pelvic-abdominal examination) on Mrs. Leblanc. The laparoscopy confirmed the endometriosis; Dr. Friedman, however, failed to detect Mrs. Leblanc's left ovary during that examination and concluded that the left ovary was absent.²

The day after the laparoscopy, Mrs. Leblanc complained of pelvic pain and discomfort. After she discharged a piece of a medical instrument, Mr. Leblanc contacted Dr. Friedman's office. On April 2, 1992, the couple visited Dr. Friedman's office for a follow-up appointment. Dr. Friedman apologized for the medical instrument, which had apparently been retained in Mrs. Leblanc's abdomen during the procedure. He and the couple discussed the options for treating her endometriosis; all agreed that she should begin receiving injections immediately. Dr. Friedman also told Mrs. Leblanc that she had been born with only one ovary. At the next appointment, on April 30, the couple decided, after consultation with Dr. Friedman, that Mrs. Leblanc should undergo a hysterectomy. Dr. Friedman performed the procedure on June 3, 1992, removing only the right ovary and failing to notice or remove the left ovary.

At some point between March and August, 1992, the Leblancs were contacted by Richard Healy of the Risk Management Foundation of the Harvard Medical Institutions (foundation). The foundation serves as the claims adjuster for the company that provides malpractice liability insurance for hospitals affiliated with Harvard Medical School.³ Healy told the Leblancs that the foundation was interested in settling any possible claims that the Leblancs might have or bring regarding the medical instrument left in Mrs. Leblanc after the laparoscopy. On August 17, 1992, after both the laparoscopy of March 16 and the hysterectomy of June 3, the foundation's initiative resulted in the Leblancs executing, for $7,000 consideration, the release that is the centerpiece of the defendant's summary judgment motion.

The release discharges four individuals or entities from liability: Dr. Friedman; another doctor also involved in the laparoscopy; Brigham and Women's Hospital; and Richard Wolf Medical Instruments Corp., the maker of the instrument left inside Mrs. Leblanc (four parties). It does not specifically reference the medical instrument or its having been left in Mrs. Leblanc during the laparoscopy procedure, but does refer to the care and treatment she received on March 16. Because the text of the release is critical to our analysis, the foundation of this case, it deserves to be quoted at length:

"[The Leblancs] discharge [the four parties] of and from all debts, demands, actions, causes of actions, suits, accounts, covenants, contracts, agreements, damages of any and all claims, demands and liabilities whatsoever, of every name and nature, which we now have or might have, upon or against said [four parties] more especially from all claims arising out of any and all personal injuries, damages, expenses and any loss or damage whatsoever resulting from care and treatment rendered to Diane Leblanc on or about March 16, 1992 ....

"[The Leblancs further hold the four parties harmless] from all claims, demands and suits for damages, costs, loss of services, loss of consortium, companionship, society or affection, expenses or compensation, which [they] ... have or may have on account of, or in anyway growing out of, said care and treatment or its results.

"It is agreed and understood by the undersigned that this Release runs not only to [the four parties] but, in addition, to [any other parties] who are or might otherwise be liable in anyway for the care and treatment rendered to the undersigned and which is the subject matter of this settlement....

"[They] further understand that this Release is to compromise and terminate all claims for injuries and/or damages of whatever nature, known or unknown, including future developments thereof in anyway growing out of or connected with or which may hereafter in anyway grow out of or be connected with said care and treatment [or] its results ....

"`It is the intention of both parties hereto that this Release shall resolve any and all claims of any kind [or] nature which [we] have against [the four parties], including specifically, without limiting the generality of the foregoing, claims for injuries currently existing but unknown to either or both of the parties hereto.'" (Emphases added. Indentation and spacing in the original.)

During a trip in the spring, 1994, Mrs. Leblanc again began to feel pain, such that she was taken to an emergency room in Oklahoma. When X-rays suggested a possible tumor, she consulted a urologist on the advice of Dr. Partridge. Further tests revealed that Mrs. Leblanc did in fact have a left ovary. It was later surgically removed.

The Leblancs subsequently brought the present suit charging Dr. Friedman with malpractice for failing to verify the existence of Mrs. Leblanc's left ovary during the March 16, 1992, laparoscopy, and failing to remove it during the June 3, 1992, hysterectomy. Mrs. Leblanc further alleged that Dr. Friedman's negligence had caused the pain she experienced in 1994, among other damages.⁴ The judge granted summary judgment for Dr. Friedman. The judge reasoned that the release, by its explicit terms, discharged Dr. Friedman from all liability for negligent acts he had committed before August 17, 1992, including the negligence of failing to detect and subsequently failing to remove Mrs. Leblanc's left ovary.

The Appeals Court reversed the decision. 53 Mass. App. Ct. 697 (2002). Relying on LaFleur v. C.C. Pierce Co., 398 Mass. 254 (1986), the court held that the release did not bar the present claim if the parties had made a mutual mistake of fact in not realizing that the left ovary existed, and thus had intended that the release apply only to injuries caused by the medical instrument. Given that the instrument manufacturer and a doctor assisting in the laparoscopy had been named as parties to the release and that the foundation had represented to the Leblancs that the release was intended to pertain to the instrument incident, the court concluded that there existed a disputed issue of material fact as to whether the parties had intended that the release cover Dr. Friedman's negligent failure to detect and remove the left ovary. The court was reassured in its position by the relatively small sum of money paid to the Leblancs for the release and the fact that the couple did not consult an attorney before signing it. This court granted further appellate review.

2. Discussion. An order granting summary judgment will be upheld if "the judge ruled on undisputed material facts and those rulings were correct as a matter of law." Aldrich v. ADD Inc., 437 Mass. 213, 218 n.9 (2002).

The central issue in this summary judgment motion is a mixed question of law and fact: whether any of the injuries alleged by the Leblancs fall outside the scope of the August 17, 1992, release discharging Dr. Friedman's liability. Because the interpretation of a contract is a question of law for the courts, Lumber Mut. Ins. Co. v. Zoltek Corp., 419 Mass. 704, 707 (1995), and releases are a form of contract, see Sharon v. Newton, 437 Mass. 99, 105 (2002), the question has a legal element: What acts does the release cover? If there are facts material to this mixed question in dispute, summary judgment cannot be granted.

The Appeals Court believed that there were material facts in dispute, and based this belief on our holding in LaFleur v. C.C. Pierce Co., supra. In LaFleur, the plaintiff was injured when a forklift blade fell on his toe, spraining it and also, unbeknownst to anyone, aggravating a latent arterial disease from which he suffered. LaFleur settled with his employer and signed a release that made no mention of whether it covered "unknown" injuries. He later discovered the disease...