McGuinness v. Cotter

Decision Date11 May 1992
Citation412 Mass. 617,591 N.E.2d 659
PartiesShawn P. McGUINNESS et al. 1 v. Paul F. COTTER et al. 2
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Elizabeth N. Mulvey, Boston, for plaintiffs.

Charles P. Reidy, III, Boston (Teresa J. Farris, with him) for defendants.

Before LIACOS, C.J., and ABRAMS, LYNCH, O'CONNOR and GREANEY, JJ.

LIACOS, Chief Justice.

The plaintiffs, Diane McGuinness and her minor son Shawn, commenced this action on July 29, 1988, seeking to recover damages allegedly stemming from obstetrical care rendered to Diane McGuinness in 1976 by the defendants, Dr. Paul F. Cotter and Quincy Obstetricians and Gynecologists, Inc. 3 The plaintiffs' principal contention is that the defendants were negligent in failing to recognize signs of fetal distress during Diane's labor and that, as a result, Shawn was born with cerebral palsy. A judge in the Superior Court granted the defendants' motion for summary judgment on the ground that Shawn and Diane's claims were time barred. 4 The plaintiffs appealed to the Appeals Court. We transferred the case on our own motion. We now reverse.

We summarize the facts in the light most favorable to the plaintiff. Riley v. Presnell, 409 Mass. 239, 240-241, 565 N.E.2d 780 (1991). On December 14, 1976, Shawn McGuinness was born at St. Margaret's Hospital in Boston, where he was delivered vaginally by the defendant Dr. Cotter. Shawn's birth weight and Apgar scores were both relatively low, and he experienced meconium aspiration at birth. 5 Shawn was transferred to the neonatal intensive care nursery at Saint Margaret's for a twenty-four hour period. Three days later Shawn was discharged from the hospital, as being "fine and healthy."

In the year following his birth, Shawn began to show signs of developmental delay. In February, 1978, Dr. Michael Bresnan performed a neurological evaluation of Shawn. On February 23, 1978, in a report addressed to another physician, Dr. Bresnan wrote that "Shawn shows clear evidence of a moderate spastic quadriparesis which appears to represent the results of a pre- and paranatal encephalopathy. This would be best classified as cerebral palsy." According to Diane McGuinness, Dr. Bresnan did not tell her that Shawn's disabilities were potentially attributable to the obstetrical care Diane received during her pregnancy. Rather, the physician stated only that disabilities such as Shawn's "sometimes happen." Following the 1978 diagnosis of cerebral palsy, Shawn was treated by a number of physicians and physical therapists. He suffers neurological and developmental problems and is confined to a wheelchair. In addition, Shawn cannot read or write.

This action was commenced in 1988 when Shawn was twelve years of age. According to Diane's affidavit, she commenced this action after viewing a television advertisement which suggested a possible connection between obstetrical care and cerebral palsy. She stated that it was at this time that she first began to suspect that Shawn's disabilities may have been due to the medical care she received during her pregnancy and delivery. The issue before us is whether the plaintiffs' complaint was timely. We address Shawn's claims and Diane's claims separately; in considering each claim, we apply well established principles regarding the propriety of a grant of summary judgment.

Summary judgment is appropriate if there is no genuine issue of material fact and the moving party is entitled to judgment as matter of law. Mass.R.Civ.P. 56(c), 365 Mass. 824 (1974). When presented with a motion for summary judgment, the judge must consider the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, to determine whether summary judgment is appropriate. Id. The judge should consider the evidence "with an indulgence in the [opposing party's] favor." Conley v. Massachusetts Bay Transp. Auth., 405 Mass. 168, 173, 539 N.E.2d 1024 (1989), quoting Anthony's Pier Four, Inc. v. Crandall Dry Dock Eng'rs, Inc., 396 Mass. 818, 822, 489 N.E.2d 172 (1986). Where summary judgment is sought on the basis of a statute of limitations, once the defendant establishes that the time period between the plaintiff's injury and the plaintiff's complaint exceeds the limitations period set forth in the applicable statute, the plaintiff bears the burden of alleging facts which would take his or her claim outside the statute. Riley v. Presnell, supra 409 Mass. at 243-244, 565 N.E.2d 780. See Franklin v. Albert, 381 Mass. 611, 619, 411 N.E.2d 458 (1980).

1. Shawn's claims. Because Shawn is a minor, the timeliness of his claims is governed by G.L. c. 231, § 60D. Prior to its amendment by St.1986, c. 351, § 23, § 60D provided that a medical malpractice action brought by a minor "shall be commenced within three years from the date the cause of action accrues, except that a minor under the full age of six years shall have until his ninth birthday in which the action may be commenced." 6

In granting the defendants' motion for summary judgment, the trial judge apparently accepted the defendants' argument that, since § 60D provides that "a minor under the full age of six years shall have until his ninth birthday" to commence an action, § 60D is a statute of repose which imposes an absolute bar to Shawn's claims because they were brought after his ninth birthday. 7 The plaintiffs contend that § 60D as phrased before its amendment (see note 6) is a statute of limitations rather than a statute of repose, and that the limitations period set forth in the statute is therefore subject to the discovery rule announced by this court in Franklin v. Albert, supra, as well as to the mental incapacity tolling provision in G.L. c. 260, § 7 (1990 ed.). We agree.

This court previously has noted the distinction between a statute of repose and a statute of limitations. See Nissan Motor Corp. v. Commissioner of Rev., 407 Mass. 153, 157-158, 552 N.E.2d 84 (1990); Klein v. Catalano, 386 Mass. 701, 702, 437 N.E.2d 514 (1982). A statute of limitations is a procedural measure which "normally governs the time within which legal proceedings must be commenced after the cause of action accrues " (emphasis added). Klein, supra at 702, 437 N.E.2d 514. Accordingly, the limitations period in a statute of limitations generally does not begin to run until the date of the plaintiff's injury or the date that the injury is, or reasonably should have been, discovered. Id. at 708, 437 N.E.2d 514. A statute of repose, on the other hand, "completely eliminates a cause of action" after the time period established has run without regard to the concept of accrual or of discovery. Id. at 702, 437 N.E.2d 514. The period in a statute of repose generally begins to run from some "definitely established event," such as the date on which the act or omission which forms the basis of the cause of action occurs. Nissan Motor Corp., supra 407 Mass. at 158, 552 N.E.2d 84. 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. See Klein, supra, 386 Mass. at 702, 437 N.E.2d 514.

In the present case, we are confident that the Legislature did not intend to create a repose provision in § 60D when it provided that a minor under six years of age shall have until his or her ninth birthday to commence a medical malpractice action. In order to read § 60D as containing a statute of repose, we would have to construe the ninth birthday limitation as applying to a minor who is under six when the medical services giving rise to the minor's complaint are rendered. The statute itself, however, does not refer to any such "definitely established event." See Nissan Motor Corp., supra. By contrast, in other instances where the Legislature has sought to create a statute of repose, it has done so expressly, as, for example, in the amended version of the statute at issue here. See G.L. c. 231, § 60D, as amended by St.1986, c. 351, § 23 ("in no event shall any [medical malpractice action brought by a minor] 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"). See also G.L. c. 260, § 2B ("in no event shall [an action of tort based on certain improvements to real property] be commenced more than six years after the earlier of the dates of: the opening of the improvement to use; or substantial completion of the improvement and the taking of possession for occupancy by the owner").

The defendants' construction of § 60D would single out the youngest plaintiffs for the harshest treatment under the statute, because only a minor with a claim stemming from medical treatment received prior to his or her sixth birthday would be absolutely barred from bringing an action after attaining the age of nine. By contrast, a plaintiff with a claim stemming from medical services received after his or her sixth birthday would be subject only to the three-year statute of limitations set forth in G.L. c. 231, § 60D. As a consequence, this latter category of plaintiffs would receive the protection of the "discovery rule," whereas younger plaintiffs would not. We decline to conclude that the Legislature intended such an irrational result, especially where there is no language in the statute to suggest that it did. See Apkin v. Treasurer & Receiver Gen., 401 Mass. 427, 436, 517 N.E.2d 141 (1988); Pobieglo v. Monsanto Co., 402 Mass. 112, 122, 521 N.E.2d 728 (1988) (Liacos, J., dissenting). Indeed, we think it clear from the face of the statute that the purpose of the ninth birthday provision was to afford younger plaintiffs additional time within which to bring their claims.

Thus, we conclude that the ninth...

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