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Father of Injured Son Makes Unique Statute of Limitations Arguments in Massachusetts Medical Malpractice Action

Massachusetts limits the time in which an injured party can file suit against a defendant. For most personal injury actions, the case must commence within three years after the cause of action accrues. This is known as the statute of limitations. This time begins when the date of the injury occurred or when the injured person knew or should have known that the injury occurred. Massachusetts laws also limit the time for the latter in statutes of repose, which cap the time to file a case.  Disabled tagThe primary example of this can be found within the medical malpractice statute, G. L. c. 231, § 60D. This statute allows a minor under six years of age to file suit past the three-year period, as long as it is before the child’s ninth birthday and within seven years. For instance, a child may discover that an accident at 18 months of age caused delayed injuries. This child can still file suit past the age of 4 1/2 years old but must file suit within seven years, even though the child will not quite be nine years old.

In a recent case (16-P-299), a father and next friend fought a trial court’s ruling dismissing his medical malpractice claim against three defendants for injuries to his child at birth. The court determined the claims were time-barred by G. L. c. 231, § 60D. The child was born on October 12, 2006, and the initial action was filed on December 26, 2012. On September 17, 2013, the father sought to add three health care provider defendants to the original defendants. The new set filed a motion to dismiss, which was granted, and the father appealed.

On appeal, the father argued that the medical malpractice statute of repose did not apply to the dismissed defendants. The father claimed that the hospital defendants were employers of health care providers but not providers themselves. The father attempted to use the legal concept of vicarious liability, which holds an employer responsible for an employee’s negligence, even if the employer does not directly participate. The father argued that this distinction removes the need to follow G. L. c. 231, § 60D. The court disagreed, pointing to the wording of G. L. c. 231, § 60D, which says “any claim by a minor against a health care provider stemming from professional services or health care rendered.” The appellate court felt the actions of the providers were derivatives of the hospitals and under the umbrella of the law.

The father also argued that the amended complaint didn’t fall outside the statute of repose but commenced on the date he served the motion to amend, rather than the date he filed the amendment. The court also disagreed, pointing to a prior decision holding that the statute of repose is only satisfied if the action is filed within the statute of repose period. The Appeals Court, unpersuaded by the father’s arguments, affirmed the dismissal of the defendants in the amended complaint.

The Massachusetts personal injury attorneys at Karsner & Meehan have the legal knowledge and experience you need to properly file a medical malpractice action. Call our office today at 508.822.6600 for a free, confidential consultation.

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