In personal injury lawsuits, claims must be filed within a certain time limit set by law. Most must be brought within three years of when the date of the cause of action accrues or arises. The time begins to run when the injured party knew or should have known that he or she was harmed by the defendant’s conduct. In a recent Supreme Judicial Court opinion, Parr vs. Rosenthal (SJC-12014), the court formally adopted the “continuing treatment doctrine” for medical malpractice claims. Under this doctrine, the statute of limitations does not begin when the allegedly negligent physician continues to treat the patient for the same or a related condition. The idea behind the doctrine is to encourage recovery rather than litigation by promoting the doctor-patient relationship for conditions that require ongoing treatment.
In this case, the injured person was a boy born with a large lump on the back of his right calf. A team of doctors examined the lump and diagnosed it as a desmoid tumor, a benign tumor that can grow in a way that would hamper the normal growth of tissues and bodily functions. For this patient, the tumor had already caused an abnormality in his gait. The team approached the defendant doctor to perform Radio Frequency Ablation (RFA) to remove the tumor. This process uses a long probe with heating tines that burn the tumor in a spherical area immediately surrounding the tines, but it does not distinguish between healthy and unhealthy tissue. The doctor is known as the “inventor” of this process, and he is considered a leader in the field. However, the defendant doctor had not performed this procedure on this type of mass prior to the date of the surgery.
Immediately before the procedure on November 4, 2005, the doctor did not explain the risks associated with the surgery to the parents, particularly the risks of burns to the skin.During the procedure, the doctor discovered he had burned more than the planned treatment area. The defendant doctor stopped the procedure and told the parents of the burn, but he assured them their child would “recover and be fine.” The boy did not recover, his nerves destroyed by the burn. Eventually, the child’s leg was amputated below the knee on March 20, 2006, due to continued problems with the burn. Even then, a second amputation became necessary on March 12, 2008, due to continued infections and insufficient muscles for a prosthesis. A little over a year later, on March 6, 2009, the parents filed suit. At trial, the injured boy proposed jury instructions that the statute of limitations did not begin until the treatment by the defendant doctor or the team of doctors was terminated. The judge declined to give such instructions, and the jury returned a verdict in favor of the defendant doctor, concluding that the injured person knew or should have known about the injury before March 6, 2006.
The Supreme Judicial Court agreed with the injured person’s request to adopt the continuing treatment doctrine in Massachusetts. Looking toward parallel circumstances in prior legal malpractice rulings, the court felt it was appropriate to adopt this doctrine. However, the court placed limits on the adoption of this doctrine. It held the doctrine does not apply if the allegedly negligent physician no longer had any role in treating the patient, even if the same treatment team that was present before continues to treat the patient. Ultimately, the court felt that this applied to the present case, in which the defendant’s doctor’s participation ended soon after the procedure in 2005, more than three years prior to the filing of the case. The judgment in favor of the defendant was affirmed.
The Massachusetts medical malpractice attorneys at Karsner & Meehan have the experience you need in your personal injury action. If you or a family member has suffered negligent medical care for an ongoing condition, our office can help you determine whether or not the statute of limitations has expired. For a free, confidential consultation today, call our office at 508.822.6600.
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