Sisson v. Another3

• Decision Date: 06 October 2011
• Docket Number: SJC–10809.
• Citation: 954 N.E.2d 1115,460 Mass. 705
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Richard SISSON, Jr., administrator,1 & others2v.David W. LHOWE & another.3

460 Mass. 705

954 N.E.2d 1115

Richard SISSON, Jr., administrator,1 & others2

v.David W. LHOWE & another.3

SJC–10809.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued April 7, 2011.Decided Oct. 6, 2011.

John P. Barylick for the plaintiffs.Charles P. Reidy, III, Boston, for the defendants.Present: Ireland, C.J., Spina, Cordy, Gants, & Duffly, JJ.DUFFLY, J.

Following the death of Richard Sisson Jr.'s wife, Dawn Sisson, from osteosarcoma, the plaintiffs amended their complaint for medical malpractice in a pending action against the defendants, Dr. David W. Lhowe and Massachusetts General Physicians Organization, Inc., to include a claim for wrongful death. The wrongful death claim in the amended complaint was dismissed as time barred pursuant to G.L. c. 260, § 4 (statute of repose), and the plaintiffs appealed. We transferred the case to this court on our own motion. Although we have had several opportunities to discuss the statute of repose in the context of claims for medical malpractice, we have not previously addressed the question whether a plaintiff may, after the period of time set forth in the statute of repose has expired, amend a complaint alleging medical malpractice to add a claim for wrongful death where the underlying complaint alleged medical malpractice resulting in injury including expected premature death. We answer in the affirmative and conclude that the wrongful death claim should not have been dismissed.

1. Background. The plaintiffs allege that Lhowe provided substandard medical care to Dawn between January 26, 1999, and November 16, 1999. On February 27, 2006, Sisson, Dawn,⁴ and their three children filed a complaint in the Superior Court against Lhowe and his employer, Massachusetts General Physicians Organization, Inc. The complaint alleged that as a direct and proximate result of Lhowe's negligence, Dawn suffered injuries “including, but not limited to, expected premature death from metastic osteosarcoma.” It further alleged that Lhowe's negligent medical care and treatment of Dawn caused her continuing suffering and mental and physical pain, as well as lost earnings, future lost earnings, and other future medical and care expenses. The plaintiffs claimed that Lhowe failed to inform Dawn of the medical options available to her, and but for this failure she would have avoided the injuries she sustained. Finally, the complaint asserted that as a result of Lhowe's conduct, Sisson has suffered, and will in the future suffer, a loss of his wife's consortium; a claim for loss of consortium was made also on behalf of the couple's children.

Dawn died on March 29, 2007, while the action was pending. On March 28, 2008, the plaintiffs amended the complaint, adding Sisson as administrator of Dawn's estate, and adding wrongful death claims. Trial was scheduled to begin in January, 2010. Prior to trial, the defendants filed a motion in limine seeking to preclude the plaintiffs from proceeding on a claim for wrongful death on the ground that the repose period had expired on November 16, 2006, seven years after the last incident of alleged negligent conduct occurred, and prior to Dawn's death. That motion was allowed. The parties filed a joint motion to sever the loss of consortium claims from the wrongful death claims; that motion also was allowed. Thereafter, on the defendants' motion, the wrongful death claims were dismissed.

2. Discussion. “We review the allowance of a motion to dismiss de novo.” Curtis v. Herb Chambers I–95, Inc., 458 Mass. 674, 676, 940 N.E.2d 413 (2011). “We accept as true the allegations in the complaint and draw every reasonable inference in favor of the plaintiff.” Id., citing Harhen v. Brown, 431 Mass. 838, 845, 730 N.E.2d 859 (2000), and Warner–Lambert Co. v. Execuquest Corp., 427 Mass. 46, 47, 691 N.E.2d 545 (1998). In this case we consider whether, as a matter of law, the plaintiffs' wrongful death claim was barred by the statute of repose applicable to malpractice actions.

The plaintiffs' primary argument is that the plain language of G.L. c. 260, § 4, applies to any “action” for malpractice, and on the timely filing of the original complaint for malpractice (predicated on personal injury to Dawn), the statute's filing requirements were met. Otherwise put, the plaintiffs argue that both the personal injury claim and the wrongful death claim are part of a single action for malpractice that was commenced within the period of repose.

For their part, the defendants contend that, considered in the context of the entire statutory scheme, claims for personal injury and wrongful death are distinct “causes of action,” and, because the statute of repose is not subject to tolling, the filing of a complaint within the statute of limitations that alleges personal injury does not toll the period of repose for an action premised on wrongful death. To support their contention that the claims are distinct, the defendants point out that medical malpractice actions are governed by G.L. c. 231, § 60F, whereas wrongful death actions are governed by a separate statute, G.L. c. 229, § 2; damages as to each claim are differentiated in the statutory scheme, see, e.g., G.L. c. 231, § 60H (placing cap on pain and suffering for personal injury but not wrongful death); and the claims receive differential treatment with respect to interest on damages. See G.L. c. 231, § 60K (excluding from its purview actions for wrongful death). Additionally, the defendants note, a wrongful death action may be brought only by an executor or administrator, and does not accrue until the time of death. See Gaudette v. Webb, 362 Mass. 60, 63–64, 284 N.E.2d 222 (1972).

a. Language of the statute. “[C]onsistent with our general practice of statutory interpretation, we look first to the language of the statute because it is ‘the principal source of insight’ into the intent of the Legislature.” Bishop v. TES Realty Trust, 459 Mass. 9, 12, 942 N.E.2d 173 (2011), quoting Norfolk & Dedham Mut. Fire Ins. Co. v. Morrison, 456 Mass. 463, 468, 924 N.E.2d 260 (2010). We interpret terms according to their “ordinary and approved usage.” Chandler v. County Comm'rs of Nantucket County, 437 Mass. 430, 435, 772 N.E.2d 578 (2002), quoting Hanlon v. Rollins, 286 Mass. 444, 447, 190 N.E. 606 (1934).

General Laws c. 260, § 4, is both a statute of limitation and a statute of repose.⁵ With respect to the statute of limitations for medical malpractice, G.L. c. 260, § 4, provides that “[a]ctions ... for malpractice ... shall be commenced only within three years after the cause of action accrues....” As to the period of repose, the statute provides that “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.” Id.

The statute of limitations runs from the date on which a claim accrues—that is, the date on which an individual is injured, or reasonably should have known she was injured, due to the negligent acts of her physician. The date a plaintiff “discover[s] his injury is relevant only to the time of accrual for limitations purposes and not to the time the cause of action arose.” Doe No. 4 v. Levine, 77 Mass.App.Ct. 117, 120, 928 N.E.2d 951 (2010).

By contrast, the statute of repose focuses on the date a defendant's negligent acts or omissions were alleged to have occurred “regardless of whether a cause of action has accrued or whether any injury has resulted.” Black's Law Dictionary 1546 (9th ed. 2009), quoting 54 C.J.S. Limitations of Actions § 4, at 20–21 (1987). See Klein v. Catalano, 386 Mass. 701, 702, 437 N.E.2d 514 (1982). The date the negligent conduct occurred is the date on which a cause of action arises. See Doe No. 4 v. Levine, supra at 119–120, 928 N.E.2d 951.

To guide our interpretation of the meaning of “action” in this context, we look to the ordinary meaning of the term “action” as employed in the statute, as understood from its dictionary definition. See Camara v. Attorney Gen., 458 Mass. 756, 761 n. 10, 941 N.E.2d 1118 (2011), citing Boston Professional Hockey Ass'n v. Commissioner of Revenue, 443 Mass. 276, 287, 820 N.E.2d 792 (2005). An “action” or “cause of action” is defined as: “1. A group of operative facts giving rise to one or more bases for suing; a factual situation that entitles one person to obtain a remedy in court from another person; ... 2. A legal theory of a lawsuit [e.g.,] a malpractice cause of action.” Black's Law Dictionary, supra at 251. A “new cause of action” is defined as “[a] claim not arising out of or relating to the conduct, occurrence, or transaction contained in the original pleading.” Id.

For purposes of the statute of repose, the term “action” can be seen as referring to the group of operative facts that gave rise to the complaint for medical malpractice; this definition does not include the various remedial claims that may be based on those operative facts. Viewed in this light, related claims based on injury resulting from the same alleged malpractice need not have been made when the original action was commenced, although they must be made during the pendency of that action if they are to be considered as having been timely filed for purposes of the statute of repose; in these circumstances, such claims do not create distinct causes of action, but are related to the original claim of injury. That various remedial claims may be made as a result of the negligent act is not the concern of the statute of repose, so long as the original malpractice complaint (or action) was filed within the seven-year period that begins to run from the date of the negligent acts or omissions.⁶

That claims for recovery based on personal injury, wrongful death, or loss of consortium are not distinct when they derive from the same constellation of facts is supported by decisional law in a variety of contexts. In Fidler v. E.M. Parker Co., 394 Mass....