Rudenauer v. Zafiropoulos

• Decision Date: 21 November 2005
• Citation: 445 Mass. 353,837 N.E.2d 278
• Parties: Barbara RUDENAUER, individually and as administratrix,<SMALL><SUP>1</SUP></SMALL> v. Georgia ZAFIROPOULOS, executor,<SMALL><SUP>2</SUP></SMALL> & another.<SMALL><SUP>3</SUP></SMALL>
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 278

837 N.E.2d 278

445 Mass. 353

Barbara RUDENAUER, individually and as administratrix,¹ v. Georgia ZAFIROPOULOS, executor,² & another.³

Supreme Judicial Court of Massachusetts, Middlesex.

Argued October 6, 2005.

Decided November 21, 2005.

Barry D. Lang, Boston, for the plaintiff.

Edward T. Hinchey, Boston (Stacey E. Morris with him) for the defendants.

Carl Valvo, Boston, & Kenneth W. Terrell, for Professional Liability Foundation, Ltd., amicus curiae, submitted a brief.

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

COWIN, J.

The plaintiff's husband, Dennis Rudenauer, died in 2000 from cancer that allegedly could have been detected and successfully treated had the defendant doctor, Panayiotis Zafiropoulos, properly monitored a kidney condition. In 2001, the plaintiff brought an action against Zafiropoulos and his employer, Waltham Urology Clinic, Inc. (clinic), for wrongful death, pain and suffering, gross negligence, and loss of consortium.⁴ Although the claims are substantially based on Zafiropoulos's treatment of Rudenauer in 1990 and 1991, the plaintiff contends that the doctor's duty to conduct follow-up monitoring after 1991, as well as her husband's return to the doctor in 1995, constitute ongoing treatment through 1995. The defendants moved unsuccessfully for summary judgment, claiming that the action was barred by the repose provision of G.L. c. 260, § 4. The Appeals Court granted the defendants leave to appeal from the denial of the motion. We transferred the case to this court on our own motion to determine whether the purported continuing treatment until 1995 relieves the plaintiff of application of the seven-year statute of repose clause of G.L. c. 260, § 4. We conclude that the absolute language of the statute precludes such a result.

Background. We summarize the relevant facts of this case as presented to the judge on motion for summary judgment.⁵ On February 9, 1990, Rudenauer went to Waltham Weston Hospital & Medical Center with "left flank pain." He had fallen on the snow five days earlier and began noticing pain the day before his visit. Because tests showed blood in his urine and a possible kidney mass, he was instructed to see a urologist.

The following day, February 10, Rudenauer made his first visit to Zafiropoulos at the clinic. Zafiropoulos ordered a CT scan on February 11, to rule out a kidney tumor. The CT scan was read as showing a mass lesion most consistent with an intrarenal hematoma, but with a recommendation for follow-up scans to rule out a renal mass of a different type.

Rudenauer continued to see Zafiropoulos over the next twenty-one months, until November 8, 1991, for testing and monitoring of the lesion. Zafiropoulos conducted or ordered the following tests: ultrasounds on February 16 and March 16, 1990; CT scans on March 29 and April 19, 1990; and additional ultrasounds on July 6, 1990, January 18, 1991, and November 8, 1991. The final ultrasound on November 8 "revealed a very nodular left kidney with no definite mass seen." Thereafter, there is no evidence that Rudenauer visited the doctor for over thirty-nine months, nor is there any evidence that Zafiropoulos followed up with him or contacted him in any way.⁶

On February 21, 1995, Rudenauer returned to Zafiropoulos with pain on his left side and "outflow obstruction." Zafiropoulos conducted a series of tests during the next ten months, which, on December 15, 1995, revealed renal adenocarcinoma, dark cell type (cancer). Rudenauer terminated his treatment with Zafiropoulos and another physician removed the kidney on January 15, 1996.

In August, 2000, Rudenauer presented to a third doctor with symptoms that ultimately proved to be fatal metastatic disease. Rudenauer passed away on October 8, 2000. On August 30, 2001, the plaintiff, Rudenauer's widow, filed suit against Zafiropoulos and the clinic for wrongful death, conscious pain and suffering, gross negligence, and loss of consortium. All claims are made under the wrongful death statute and, as such, comply with its three-year statute of limitations. See G.L. c. 229, §§ 2, 6. See also Fowles v. Lingos, 30 Mass.App.Ct. 435, 436-437, 569 N.E.2d 416 (1991).

The plaintiff's expert witnesses would testify that Zafiropoulos failed to act in accordance with then appropriate standards of care as follows. After April 19, 1990, Zafiropoulos should have conducted further CT scans of the lesion rather than monitoring it solely with ultrasounds; moreover, he should have biopsied the kidney when the lesion persisted for months. The witnesses would state that, had such tests been conducted, the cancer would have been detected and, if detected by September, 1994, likely cured. There is a suggestion in the record that Zafiropoulos failed to comply with the standard of care in 1995 by failing to diagnose the problem promptly on Rudenauer's return,⁷ but there is no evidence that any act or omission in 1995 was causally connected to Rudenauer's eventual death.

The defendants moved for summary judgment pursuant to Mass. R. Civ. P. 56, 365 Mass. 824 (1974), on the ground that the action was barred by the repose provision of G.L. c. 260, § 4. The judge denied the motion, citing a "genuine issue of material fact." As noted, a single justice of the Appeals Court allowed the defendants' motion for interlocutory review, and we transferred the matter here on our own motion.

Discussion. "A court must deny a motion for summary judgment if, viewing the evidence in the light most favorable to the nonmoving party [the plaintiff here], there exist genuine issues of material fact or the moving party is not entitled to judgment as a matter of law." Golub v. Milpo, Inc., 402 Mass. 397, 400, 522 N.E.2d 954 (1988). See Mass. R. Civ. P. 56(c).

General Laws c. 260, § 4, second par., provides: "Actions of contract or tort for malpractice, error or mistake against physicians, surgeons . . . hospitals and sanitoria shall be commenced only within three years after the cause of action accrues, but in no event shall any such action 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 except where the action is based upon the leaving of a foreign object in the body" (emphasis supplied). The italicized language constitutes a statute of repose, "[t]he effect [of which] 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." Nett v. Bellucci, 437 Mass. 630, 635, 774 N.E.2d 130 (2002), quoting McGuinness v. Cotter, 412 Mass. 617, 622, 591 N.E.2d 659 (1992).

The plaintiff maintains that her claims are not barred by the statute of repose, even to the extent that they are based on acts or omissions that predated her action by more than seven years. She argues that § 4 should be read to include some form of "continuous treatment rule," which would toll the start of the repose period for any negligent acts or omissions until the doctor's treatment of, or responsibility for, the related condition ends. The plaintiff relies heavily on cases from other jurisdictions that involve statutes of limitations. These are not relevant and have no application to our statute of repose. She also refers to cases from a small number of jurisdictions that toll their statutes of repose. For example, Connecticut courts toll the statute of repose during treatment by, or continued duty of, a doctor for the same condition to which his or her alleged negligence is related. See Blanchette v. Barrett, 229 Conn. 256, 274-275, 640 A.2d 74 (1994). Other jurisdictions toll their statutes of repose until the end of a course of continuous negligent treatment if the effects of a series of acts or omissions are so cumulative and inextricable as to render the series actionable as a single, continuing wrong under their State laws. See Ewing v. Beck, 520 A.2d 653, 662 (Del.1987); Cunningham v. Huffman, 154 Ill.2d 398, 405-406, 182 Ill.Dec. 18, 609 N.E.2d 321 (1993). We conclude that Massachusetts law is to the contrary and, even were there negligence,⁸ the plaintiff no longer has a viable cause of action for any act or omission that occurred seven years before she filed suit.

Our cases have consistently held that statutes of repose are not subject to any form of tolling. See Protective Life Ins. Co. v. Sullivan, 425 Mass. 615, 631 n. 19, 682 N.E.2d 624 (1997). See also Tindol v. Boston Hous. Auth., 396 Mass. 515 517-518, 487 N.E.2d 488 (1986); Klein v. Catalano, 386 Mass. 701, 702, 710-713, 437 N.E.2d 514 (1982). A repose period begins to run from some "definitely established event," abolishing a plaintiff's cause of action thereafter, even if the injury does not occur, or is not discovered, until after the statute's time limit has expired. See McGuinness v. Cotter, supra at 622, 591 N.E.2d 659, citing Nissan Motor Corp. in U.S.A. v. Commissioner of Revenue, 407 Mass. 153, 158, 552 N.E.2d 84 (1990); Klein v. Catalano, supra at 702, 437 N.E.2d 514.

A statute of repose stands in contrast to a statute of limitations, which governs the time within which a legal proceeding must be commenced after the cause of action accrues. See Harlfinger v. Martin, 435 Mass. 38, 40-41, 754 N.E.2d 63 (2001). "[T]he determination of when a cause of action accrues, causing the statute of limitations to run, has long been the product of judicial interpretation in this Commonwealth." Franklin v. Albert, 381 Mass. 611, 617, 411 N.E.2d 458 (1980), citing Cannon v. Sears, Roebuck & Co., 374 Mass. 739, 740, 374 N.E.2d 582 (1978). A statute of repose, on the other hand, itself identifies the event that commences the running of the statutory period, leaving nothing to judicial determination.

Application of a statute of repose can...