Section Review

The Medical Malpractice Statute of Repose: When Should It Commence?

The law firm of Barry D. Lang, M.D. & Associates is located in downtown Boston and specializes in the areas of medical malpractice, wrongful death, birth injuries and serious personal injury.
Kathy Jo Cook is an attorney at Keches & Mallen, P.C., Taunton, Massachusetts. Ms. Cook practices in all areas of personal injury in state and federal courts, concentrating primarily on catastrophic medical malpractice, products liability, insurance bad faith and construction site claims.
Statutes of repose, like statutes of limitations, set time limits on the filing of claims for injuries to a plaintiff by a defendant. While the statutes, such as G.L. c. 260, § 4, often set specific time limits on both the limitations and the repose portions, it is well accepted that the statute of limitations portion, which begins to run when “the cause of action accrues,” may be a question of fact viewed from the plaintiff’s perspective: when did the plaintiff know or when should the plaintiff reasonably have known that he or she had been injured by a defendant’s conduct, a doctrine known as the discovery rule. The time limit set by the repose portion of the statute, on the other hand, is viewed from a defendant’s perspective: when did the “act or omission” that “caused” the injury occur, a time period which traditionally, at least in Massachusetts, has rarely been considered to be a complex question of fact. Statutes of repose may be unfair and harsh to injured plaintiffs, particularly in cases of latent injuries, which do not manifest themselves until many years after the act or omission which caused them.

The principal Massachusetts statute defining both the limitations and repose periods in medical malpractice cases is G.L. c. 260, § 4, which states in pertinent part:

Actions of contract or tort for malpractice, error or mistake against physicians…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 the occurrence of the act or omission which is the alleged cause of the injury upon which such action is based except where such action is based upon the leaving of a foreign object in the body.1

The legislature clearly intended the repose portion of the statute to set the time limit for filing a claim by looking at the “act or omission” of a defendant. The question is how should those words be interpreted in the context of ongoing duties imposed upon physicians by medical standards?

Other states have examined the relationship between medical standards and the special duties that a physician may have long after he or she has ceased to treat a patient personally and have used several legal doctrines to make this determination. This article examines some of those doctrines and their applicability to the repose portion of G.L. c. 260, § 4.

Course of Treatment Doctrine

Massachusetts G.L. c. 260, § 4 makes it clear that the repose provision “generally begins to runs from some ‘definitely established event,’ such as the date on which the act or omission which forms the basis of the cause of action occurs.”2 The “course of treatment” doctrine recognizes that the “act or omission” as described in the statute may be one specific act or omission or it may be a series of acts or omissions, that is to say that it may be a course of negligent treatment that causes one to be injured.

The course of treatment doctrine itself has long been recognized in courts across the country. In Hotelling v. Walther,3 the court sought to determine when the applicable statute of limitations expired. The court opined that “[t]he alleged negligent treatment of the plaintiff must be considered as a whole….Where the tort is continuing, the right of action is continuing.”4 The court reasoned that the defendant “undertook to treat the plaintiff for a throat affliction. From the time he undertook to treat the case until he ceased to treat it he, as alleged, did so in a negligent and unskillful manner.”5 Similarly, in Ewing v. Beck,6 the court noted that “when there is a continuum of negligent medical care related to a single condition occasioned by negligence, the plaintiff has but one cause of action — for continuing negligent medical treatment.”7 (Emphasis in original.)

The court in Illinois recognized this doctrine in the context of a statute of repose in Cunningham v. Huffman.8 The statute at issue in that case prohibited actions brought more than four years after the “act or omission or occurrence.”9 In determining whether the plaintiff’s action was brought within the time period permitted by the statute of repose, the court opined that the word “occurrence” as it was used in the statute could “include a continuing negligent course of treatment,” reasoning: “we find it improbable that the General Assembly intended the word ‘occurrence’ to be limited to a single event. Had it so intended, it could have simply stated that the statute begins to run on the happening of the ‘specific act’ or ‘specific omission.’”10

Without calling it such, the Massachusetts Supreme Judicial Court recognized the course of treatment doctrine in Harlfinger v. Martin.11 In that case, the court considered the claims of a four-year-old child who was treated by a physician at the hospital and in his office following surgery for an elbow fracture. At the last office visit, the physician ordered a course of physical therapy treatment and told the child’s mother that he would monitor the child’s rehabilitation and therapy until he was recovered. The physician did not see the child again, although the child did complete the course of physical therapy ordered by the physician. The plaintiff filed suit approximately seven years and three months after the conclusion of the physical therapy and even longer after the last time the child was seen by the physician. Interpreting the statute of repose as a bar to the plaintiff’s claims in light of the facts as presented, the court noted that “the defendant engaged in no ongoing treatment of [the minor plaintiff] after the conclusion of his physical therapy.”12 What is significant about the Harlfinger decision is that the court did not look at each individual treatment date, nor did it look at the last date that the defendant actually saw the child in his office as the date to begin calculating the seven years; rather, it made a factual determination as to when the physician’s course of treatment was concluded, holding that the “defendant engaged in no ongoing treatment…after the conclusion of [the] physical therapy.”13 Harlfinger makes it clear that a physician’s duty for his or her “acts or omissions” may extend beyond the point in time when the physician personally treats the patient.

This is consistent with the court’s interpretation of the statute of repose applicable to architects in Klein v. Catalano,14 which barred claims brought more than six years after “the defendant’s performance or furnishing of the design, planning, construction, or general administration of an improvement to real estate.” G.L. c. 260, § 2B. Klein v. Catalano involved a claim by a student for personal injuries he alleged were caused by the negligence of an architect who was involved in the design of a student learning center. The court found that the statute of repose barred the plaintiff’s claim because the plaintiff’s “injury occurred more than six years after the defendants completed their work.”15 As the Harlfinger court did years later, the court did not look at each specific date that work was performed over the course of some four years; rather, the court used the date that the work was completed as the date from which the statute commenced to run.

In applying the course of treatment doctrine, courts in other states, such as Connecticut, have stressed the ongoing nature of the physician’s duty to the patient. In Blanchette v. Barrett,16 the defendant was the plaintiff’s family physician for a number of years. The defendant saw the plaintiff routinely for physical examination, which included breast cancer screening. Two years after the last consultation, the plaintiff discovered a breast lump and called the defendant’s office to make an appointment to see the defendant. The defendant’s office advised the plaintiff that the defendant was unavailable and recommended another family practitioner. The plaintiff saw the recommended practitioner, and as a result of that visit, she learned that she had breast cancer. Two years after she was diagnosed with cancer and four years after she had last consulted with the defendant, she filed a claim against him for negligence in diagnosing her breast cancer.17 The statute of repose in Connecticut barred the filing of claims more than three years after the “the date of the act or omission complained of.”18 The Connecticut Supreme Court held that the plaintiff’s claim was not barred by the statute of repose because the defendant’s course of treatment included breast cancer screening; and thus, the defendant’s alleged negligent “act or omission” was not complete until the plaintiff sought breast cancer screening care by another physician.19 The court stated: “[t]he term malpractice itself may be applied to a single act of a physician or surgeon or...to a course of treatment.”,20 and it further noted, “[w]hen...the injurious consequences arise from a course of treatment, the statute does not begin to run until the treatment is terminated.”21 The court reasoned:

So long as the relation of physician and patient continues as to the particular injury or malady which [the physician] is employed to cure, and the physician continues to attend and examine the patient in relation thereto and there is something more to be done by the physician in order to effect a cure, it cannot be said that the treatment has ceased.22

Continuing Treatment Doctrine

In Harlfinger v. Martin,23 while not deciding the question, the court noted that many jurisdictions have tolled the statute of repose in medical malpractice cases “while the plaintiff patient continues to receive treatment for the same condition from the defendant physician, even if the specific negligent act occurred earlier during that treatment.” The doctrine is known as the “continuing treatment” doctrine, and it operates to toll both the statute of limitations and the statute of repose. The court has given some indication it would adopt the doctrine, stating specifically: “[a]ssuming without deciding, we would adopt some version of [the] continuing treatment doctrine for purposes of tolling our statute of repose” given an appropriate fact pattern.24

The doctrine as espoused in other jurisdictions is premised on the notion that a patient should be permitted to rely on his physician’s competency while he or she is receiving treatment, and thus, the statute should be tolled during the period of time that the treatment relationship exists regardless of the precise point in time that the negligence that is the cause of the injury occurs. To suggest otherwise would mean that a patient would have to question the appropriateness of each and every treatment plan, referral, procedure for follow-up, etc. In short, a patient would be required to evaluate the competency of a physician at each and every juncture of his or her treatment, a proposition which not only places an unfair and unrealistic burden on a patient, but one which would, no doubt, compromise the relationship between the physician and the patient.

The doctrine has already been recognized by the Supreme Judicial Court in legal malpractice cases insofar as it applies to the statute of limitations. See Murphy v. Smith.25 In Murphy, the court looked at whether the applicable statute of limitations barred the plaintiff’s claim of legal malpractice. While the defendant urged the court to apply the discovery rule to determine when the cause of action accrued, the court rejected the application of the discovery rule and instead adopted the “continuing representation doctrine,” reasoning:

The doctrine “recognizes that a person seeking professional assistance has a right to repose confidence in the professional’s ability and good faith, and realistically cannot be expected to question and assess the techniques employed or the manner in which the services are rendered.” McCormick v. Romans, 214 Va. 144, 148-49 (1973), quoting Greene v. Greene, 56 N.Y.2d 86, 94 (1982). It is not “realistic to say that the client’s right of action accrued before he terminated the relationship with the attorney.” Greene v. Greene, supra at 95. The statute of limitations period does not begin to run until “the termination of the undertaking.” McCormick v. Romans, supra at 148.26

While acknowledging the existence of the doctrine and its potential for recognition in Massachusetts in Harlfinger v. Martin, a case that dealt specifically with the statute of repose as opposed to the statute of limitations, the court did not reach the question of the extent of its applicability in Massachusetts. Rather, the court pointed out that the facts of the case would not meet the requirements of the continuing treatment doctrine as it had been applied in other jurisdictions.27 In Harlfinger, the plaintiff argued that the continuing treatment doctrine would require the statute of repose to be tolled until the parents learned that the minor child’s arm fracture had not been treated properly, despite the fact that the defendant had not been involved in the child’s care and treatment for more than seven years. The plaintiffs based their argument on the defendant’s statement that he would provide follow-up care until the child was recovered.28 The court rejected that argument, comparing the facts in Harlfinger to the facts in Blanchette v. Barrett,29 stating:

[T]he [Blanchette] Court held that the jury could apply the continuous treatment doctrine despite the passage of two and one-half years during which the plaintiff did not see the defendant physician. In that case, however, the defendant had been the plaintiff’s primary care physician for over twelve years, during which time there had been repeated regular visits; nothing had occurred to terminate that physician-patient relationship; and, when complications developed, the plaintiff attempted to schedule an appointment with the defendant for further care. Here, the defendant engaged in no ongoing treatment of Matthew after the conclusion of his physical therapy in January, 1990. Nothing further was prescribed for Matthew’s condition; there were no visits or scheduled appointments and no expectation that he would need any such visits; and, when complications did emerge, the plaintiffs did not return to the defendant for further care.30

The court noted that courts adopting the continuing treatment doctrine have stressed that the doctrine requires “active, ongoing medical care and attention beyond the time of a specific negligent act or series of acts.”31

Other jurisdictions have recognized the doctrine as one that would toll the applicable statute of limitations. In analyzing the applicable statute in Lane v. Lane,32 the court noted that “since 1940, there has been a steady trend toward judicial acceptance of the continuing treatment approach.”33 Regardless of when the negligence occurs, “the statute does not commence running until treatment by the doctor for the particular disease or condition involved has terminated….”34 Similarly, in Farley v. Goode,35 the court held:

[W]hen malpractice is claimed to have occurred during a continuous and substantially uninterrupted course of examination and treatment in which a particular illness or condition should have been diagnosed in the exercise of reasonable care, the date of injury occurs, the cause of action for that malpractice accrues, and the statute of limitations commences to run when the improper course of examination and treatment, if any, for the particular malady terminates. Id. at 599.

Lastly, in Borgia v. City of New York,36 the Court of Appeals of New York essentially made the same determination, that is, “when the course of treatment which includes the wrongful acts or omissions has run continuously and is related to the same original condition or complaint, the ‘accrual’ of time comes only at the end of treatment.”37 In that case, the court noted specifically: “Little argument is needed to prove the proposition that the ‘continuous treatment’ theory is the fairer one. It would be absurd to require a wronged patient to interrupt corrective efforts” of the caregiver to commence a claim.38

The continuing treatment doctrine should be adopted by the Supreme Judicial Court. It is fair, and it does not unduly burden either the patient or the physician. The physician who continues to treat and/or monitor a patient should have a continuing duty to the patient and the statute of repose should be tolled while that relationship is in existence.

The Course of Conduct Doctrine

The “course of conduct” doctrine has also been recognized by the Connecticut Supreme Court to toll the statute of repose. That doctrine requires “an initial wrong….[and] a breach of a duty that remain[s] in existence after commission of the wrong related thereto.” Sherwood v. Danbury Hospital.39 In that case, the plaintiff had received a blood transfusion in 1985 tainted by HIV, the blood having not been tested prior to transfusion. The plaintiff was never informed of the possibility of contracting HIV even after the remaining blood in the hospital was tested. In 1995, the plaintiff learned that she was infected as a result of the transfusion. Thereafter, she brought suit alleging that the defendant physician had a continuing duty to inform her that she contracted HIV as a result of the blood transfusion. The defendant moved for summary judgment, arguing that the statute of repose barred the plaintiff’s claim. The court denied the defendant’s motion, opining that negligent conduct may include acts of omission as well as affirmative acts of misconduct, and thus, a jury could reasonably conclude that the defendant had a continuing duty to disclose the information, and the defendant’s continued breach of that duty would operate to toll the statute of repose. The court recognized that the physician continued to have a duty to the patient even in the absence of an ongoing physician-patient relationship, and as such, the claim was not necessarily time barred by the statute of repose.40

Similarly in Witt v. St. Vincent’s Medical Center, the defendant pathologist reported a diagnosis of “atypical lymphoid hyperplasia” of the plaintiff’s excised cervical lymph node in 1983. The plaintiff relied on this diagnosis and sought no further treatment for his persistent neck swelling. More than ten years later, in 1994, the plaintiff discovered that he was suffering from non-Hodgkins lymphoma. The treating oncologist requested the original slides from the defendant. The defendant sent the slides to the treating oncologist along with a note indicating that at the time the defendant treated the plaintiff, he had in fact been concerned that the plaintiff might have an evolving lymphoma. The plaintiff brought a medical malpractice suit claiming that the defendant had a duty to disclose this information, given the fact that the defendant was aware of the possibility of cancer at the time he treated the plaintiff. The plaintiff contended that the defendant’s omission was tantamount to a failure of his ongoing duty to warn, a duty that triggered the continuing course of conduct doctrine. The defendant moved for summary judgment, and the court denied the motion, holding that there was a genuine issue of material fact as to whether the statute of repose was tolled by the continuing course of conduct doctrine because of the defendant’s ongoing failure to report to the plaintiff the totality of his diagnosis.

The course of conduct doctrine should also be recognized and adopted by the Massachusetts court. To the extent that a physician has a duty to disclose information or engage in some form of further testing or treatment and he fails to do so, a factual question remains as to whether that duty is ongoing, which should toll the statute of repose.

End Notes


1. G.L. c. 260, § 4 (emphasis added).[back]

2. McGuinness v. Cotter, 412 Mass. 617, 622 (1992) (quoting Nissan Motor Corp. v. Commissioner of Rev., 407 Mass 153, 157-58 (1990)).[back]

3. 130 P.2d 944 (Oregon 1942).[back]

4. Id. at 946.[back]

5. Id. (quoting Peteler v. Robison, 17 P. 2d 244 (Utah 1932).[back]

6. 520 A.2d 653 (Delaware 1987).[back]

7. Id. at 662.[back]

8. 609 N.E.2d 321 (Illinois 1993).[back]

9. Ill. Rev. Stat. 1989, c. 110, ¶¶13-212, 13-215.[back]

10. Cunningham v. Huffman at 325 (emphasis in original).[back]

11. 435 Mass. 38 (2001).[back]

12. Id. at 53 (emphasis added).[back]

13. Id.[back]

14. 386 Mass. 701 (1982).[back]

15. Id. at 711-712 (emphasis added).[back]

16. 640 A.2d 74 (Connecticut 1994).[back]

17. Id. at 77-79.[back]

18. Conn. Gen. L. § 52-584.[back]

19. Blanchette v. Barrett, 640 A.2d at 84.[back]

20. Id. (quoting Giambozi v. Peters, 16 A.2d 833 (Connecticut 1940) (emphasis added)).[back]

21. Id. (quoting Giambozi v. Peters, 16 A.2d 833).[back]

22. Id. (quoting Giambozi v. Peters, 16 A.2d 833).[back]

23. 435 Mass. at 52-53.[back]

24. Id. at 52.[back]

25. 411 Mass. 133 (1991).[back]

26. Murphy v. Smith, 411 Mass. at 137.[back]

27. Id. at 53.[back]

28. Id. at 51-54.[back]

29. 640 A.2d 74 (Connecticut 1994).[back]

30. Harlfinger v. Martin at 53.[back]

31. Id. at 52 (quoting Raynor v. Kyser, 993 S.W.2d 913 (Arkansas 1999)).[back]

32. 752 S.W.2d 25 (Arkansas 1988).[back]

33. Id. at 27.[back]

34. Id. at 26 (quoting 1 D. Louisell and H. Williams, Medical Malpractice § 13.08 (1982)).[back]

35. 252 S.E.2d 594 (Virginia 1979).[back]

36. 187 N.E.2d 777 (New York1962).[back]

37. Id.[back]

38. Id. at 779.[back]

39. 746 A.2d 730, 736 (Connecticut 2000).[back]

40. 746 A.2d 753 (Connecticut 2000).[back]

©2014 Massachusetts Bar Association