Medina v. Pillemer, No. 04-0290-H (MA 12/23/2005), 04-0290-H

• Decision Date: 23 December 2005
• Docket Number: No. 04-0290-H,04-0290-H
• Parties: RICHARD MEDINA, Plaintiff v. FRANCINE PILLEMER, as Executrix of the Estate of Robert D. Riskind, and FRED H. HOCHBERG, M.D., Defendants.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

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RICHARD MEDINA, Plaintiff v. FRANCINE PILLEMER, as Executrix of the Estate of Robert D. Riskind, and FRED H. HOCHBERG, M.D., Defendants.

No. 04-0290-H

Superior Court of Massachusetts.

Suffolk, Ss.

December 23, 2005.

MEMORANDUM OF DECISION AND ORDER ON DR. FRED HOCHBERG'S MOTION FOR RECONSIDERATION OF ALLOWANCE OF PLAINTIFF'S MOTION TO ADD HIM AS A PARTY DEFENDANT

GANTS, J.

On December 10, 2001, the plaintiff Richard Medina ("Medina") stepped out of his parked vehicle on Washington Street in Newton and was struck by a car driven by Robert Riskind ("Riskind"), sustaining severe injuries. Medina initially brought this negligence action only against Francine Pillemer ("Pillemer"), as the Executor of Riskind's Estate, since Riskind had died following the accident (but not as a result of the accident) before suit had been filed on January 23, 2004. In March 2005, having learned that Riskind had experienced a seizure in September 2000 while rowing on the Charles River and that, at the time of the accident, he had been suffering from a malignant brain tumor, Medina first moved to add Dr. Fred Hochberg, Riskind's treating neurologist, as a defendant. In his proposed Amended Complaint, Medina alleged that Dr. Hochberg:

negligently and carelessly treated his patient Robert Riskind, and negligently and carelessly failed to control his patient, by failing to order, advise, caution, warn, and instruct his patient Robert Riskind, to not operate a motor vehicle due to the foreseeable risk of injury to innocent bystanders, such as the plaintiff, who may be on the public way in the vicinity where the patient Robert Riskind was operating his motor vehicle.

Amended Complaint at 5-6.

Judge Ray Brassard on March 25, 2005 declined to act on the motion to amend and add a party defendant "because the preferable practice is to give notice to a proposed new party." Order, March 25, 2005. Consequently, Medina gave notice to Dr. Hochberg, and re-filed his motion to amend and add a party defendant with a certification stating that no opposition had been received within the time period set forth in Superior Court Rule 9A. On April 25, 2005, this Court allowed the motion "without opposition."

Dr. Hochberg now moves for reconsideration of the allowance of the motion. He contends that, when he received the motion that had been mailed to him at Massachusetts General Hospital ("MGH"), he forwarded it, in accordance with MGH protocols, to the Risk Management Department at MGH, which then forwarded it to his insurance carrier. By the time the insurance carrier had designated an attorney to represent Dr. Hochberg in this action and forwarded the motion to him, the ten day period for opposing the motion had passed. In view of these circumstances, this Court will reconsider the allowance of this motion and consider the matters at issue in this motion de novo, as if the motion had initially been brought and timely opposed by Dr. Hochberg. Having carefully reconsidered these matters, after hearing, this Court still ALLOWS Medina's motion to amend his complaint to add Dr. Hochberg as a party defendant.

DISCUSSION

Dr. Hochberg presents three arguments in support of his contention that he should not be added as a party defendant. As will be shown, the first two are easily rejected; the third raises a serious question that appears to be one of first impression in Massachusetts law.

1. Statute of Limitations

First, Dr. Hochberg contends that the claim against him was not timely filed, since the motion to amend to add the claim against him was not filed until March 2005, more than three years after the December 10, 2001 accident that caused injury to Medina. This contention fails on two grounds.

First, under G.L. c. 260, § 4, which governs medical malpractice actions, as well as under G.L. c. 260, § 2A, which governs tort actions to recover for personal injuries, a tort action against a physician must be commenced within three years "after the cause of action accrues." In 1980, in Franklin v. Albert, the Supreme Judicial Court for the first time declared that a cause of action for medical malpractice did not accrue until the "patient learns, or reasonably should have learned, that he has been harmed as a result of a defendant's conduct." 381 Mass. 611, 612 (1980). In McGuinness v. Cotter, the Supreme Judicial Court clarified that a malpractice cause of action accrues when the plaintiff: "(1) knew or had sufficient notice that she was harmed; and (2) knew or had sufficient notice of the cause of the harm." 412 Mass. 617, 627 (1992). Notice is sufficient to start the limitations clock when the plaintiff possessed sufficient information or was aware of such suspicious circumstances that she recognized (or a reasonably prudent person in the plaintiff's position should have recognized) that the medical treatment provided by the defendant may have caused her harm. See McGuinness v. Cotter, 412 Mass. at 627 (cause of action accrues when plaintiff had "knowledge or sufficient notice that the obstetrical care she received from the defendants may have caused [plaintiff's] disabilities"); Bowen v. Eli Lilly & Co., 408 Mass. 204, 207 (1990)(must be "significant notice of causation" such that "a reasonable person in the position of the plaintiff would have been on notice that her mother's ingestion of DES may have caused the plaintiff's cancer"); Fidler v. Eastman Kodak Co., 714 F.2d 192, 199 (1^st Cir. 1983)("notice of likely cause is ordinarily enough to start the statute running"); Malapanis v. Shirazi, 21 Mass. App. Ct. 378, 383 (1986) ("the three-year limitations period commences 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 (what the Court of Appeals in Fidler called `likely cause'), should have discovered that he had been harmed by his physician's treatment").

This Court concludes that, in any personal injury tort action, regardless of whether it alleges the negligence of a physician or any other person, a cause of action does not accrue until the plaintiff (1) knows or should know that he was harmed, and (2) possesses sufficient information or becomes aware of such suspicious circumstances that he recognizes or should recognize that the defendant's conduct may have caused the harm. Here, there is no dispute that Medina knew that he was harmed on the day he was struck by Riskind's car. There is, however, a dispute as to when Medina should have recognized that Dr. Hochberg's treatment of Riskind may have been a cause of the accident.

Identifying the amount of information needed in order for Medina to have recognized Dr. Hochberg's possible responsibility for the accident is no simple task. Certainly, the information need not be so great that it demonstrates negligence. McGuinness v. Cotter, 412 Mass. at 627; Bowen v. Eli Lilly & Co., 408 Mass. at 208. Nor need it demonstrate the full extent of the causal connection. White v. Peabody Construction Co., Inc., 386 Mass.121, 130 (1982) ("The `notice' required is not notice of every fact which must eventually be proved in support of the claim."); Malapanis v. Shirazi, 21 Mass. App. Ct. at 386. The information must, however, be significant enough to alert a person of ordinary prudence in the plaintiff's position of the reasonable likelihood that the injury was caused or substantially worsened by another's conduct. See Bowen v. Eli Lilly & Co., 408 Mass. at 207 (statute of limitations starts to run when "an event or events have occurred that were reasonably likely to put the plaintiff on notice that someone may have caused her injury"); Hendrickson v. Sears, 365 Mass. 83, 89 (1974)("cause of action accrues on the happening of an event likely to put the plaintiff on notice").

Here, Dr. Hochberg notes that, in the police report regarding the accident, the police officer wrote that Riskind was "incoherent," and then had a "seizure" when placed into the rescue vehicle. The police officer wrote that Riskind told him he was being treated at Tufts Medical Center "for a medical condition," and the officer later learned at the Newton Wellesley Hospital emergency ward that Riskind was being treated for a brain tumor. In the Motor Vehicle Crash Operator Report, dated December 14, 2001, signed by Riskind but prepared by Pillemer (then, his wife and now, the executrix of his estate), the Crash Narrative disclosed that Riskind's "seizures have been well-controlled with medication" and that, prior to the accident, "he had only one major seizure on September 10, 2000."

Medina notes that he did not learn until September 22, 2004, when he received answers to Pillemer's interrogatories, that Riskind was being treated by Dr. Hochberg from September 2000 through the date of the accident, and that Riskind had been diagnosed in September 2000 with a brain tumor, more specifically, "anaplastic astrocytoma Grade III/IV." Medina also maintains that he did not know until he received the interrogatory answers that Pillemer was contending that Riskind had suffered a seizure while driving, as opposed to after the accident. Once he learned of Dr. Hochberg's treatment of Riskind for his brain tumor, he then obtained a Court Order for Dr. Hochberg's records, which he then sent to a neurology expert, who opined that Dr. Hochberg's treatment of Riskind fell below the standard of care expected of the average neurologist because he had failed to advise Riskind not to drive.

"[T]he question when a plaintiff knew or should have known of his cause of action is one of fact which in most instances will be decided by the trier of fact." Riley v. Presnell, 409 Mass. 239, 240 (1991); Castillo v. Massachusetts General Hospital Chelsea Memorial Health Care Center, 38 Mass. App. Ct. 513, 515 (1996). Under the circumstances present in this case, the question of when Medina knew or should have known that he had a cause of action against Dr....