Negligence – Medical malpractice – Limitations – Discovery rule

Listen to this article

Where a medical malpractice complaint was dismissed on statute of limitations grounds, the dismissal order must be reversed because a genuine issue of material fact exists as to when a reasonable person in the plaintiff’s position would or should have known that her injury was caused by the negligence of the defendants.

“The complaint alleged a negligent delay in the diagnosis of [plaintiff] Carolyn [Dagley]’s breast cancer by her providers. The plaintiffs contend that the judge erred in concluding that the discovery rule did not permit, as matter of law, the filing of the 2010 complaint for this injury that was first diagnosed in August, 2006. …

“Although the motion judge assumed, for summary judgment purposes, that Carolyn lacked actual knowledge of any causal relationship between the defendants’ alleged acts and her late-stage diagnosis, he nonetheless allowed the defendants’ motion, ruling that the discovery rule did not support the later filing. The judge noted that Carolyn was ‘acutely aware of her potential for breast cancer,’ as her paternal grandmother had successfully overcome the disease and two other relatives had died of different types of cancer. Given her family history and her diligence in following prescribed screening procedures, the judge concluded that a reasonable person in her position ‘would necessarily suspect that something had to have been missed by [defendant Frank J.] Vittimberga [Jr.] or others who reviewed her many recent screenings.’

“In opposing the defendants’ summary judgment motion, the plaintiffs essentially argued that the claim was not time-barred because Carolyn did not know, and with reasonable diligence could not have known, that she had been injured by the defendants’ failure to diagnose until she began attending survivor meetings/therapy sessions in early 2008; thus her complaint was filed well within the limitations period. She contends that what she should reasonably have known was a question that should have been entrusted to a jury, not a judge on summary judgment. We agree.

“… In particular, this record does not demonstrate that how cancer develops, the progression from one stage to another, and the speed and timing of the progression is either a matter of common knowledge, or that it necessarily follows that a person with attentiveness to cancer screenings, as this plaintiff, would know or have reason to know such information. Neither Dr. Blanchard’s report, nor the fact that she informed Carolyn in September, 2006, that her cancer was at stage IIIA provide, as matter of law, the kind and degree of notice of causation warranting investigation of the possible fault of Carolyn’s past medical providers.

“Nonetheless, in asserting that the judge correctly granted summary judgment in their favor, the defendants rely in large part upon Carolyn’s November, 2012, deposition where she testified first that, in August, 2006, when she first learned of her diagnosis, she also wondered whether one of her medical providers had missed something. Later in the deposition, however, Carolyn stated that she only came to suspect that the diagnosis might have been delayed during the 2008 support group meetings and not upon her diagnosis in 2006. She explained the inconsistency by clarifying that she misunderstood defense counsel’s line of questioning that led to her earlier responses and did not remember what she had been thinking at the time of the diagnosis.

“Regardless, even if Carolyn had initially suspected that something was amiss upon her diagnosis in 2006, this suspicion alone would not be dispositive. See, e.g., Lindsay v. Romano, 427 Mass. [771, 775 (1998)], where the Supreme Judicial Court noted, ‘Although the letter [from plaintiff’s counsel to the defendant] is evidence that the plaintiff suspected a link between her injuries and the defendant’s conduct, it is not dispositive of the issue of when the plaintiff was aware that the defendant’s actions may have caused her harm.’ Moreover, Carolyn’s affidavit in opposition to summary judgment stated, in effect, that following her surgery, she was neither capable (because of the recovery period and chemotherapy) or inclined to assess blame or inquire into anything other than what she needed to do to get well.

“In further support of Carolyn’s position, there is no record evidence that she ever was told why she was diagnosed so late. …

“… [I]n this case, given her doctor’s refusal to discuss any delay in diagnosis, a reasonable juror could properly conclude that Carolyn’s failure to inquire further about her prior medical providers’ failure to diagnose was reasonable and that her claims were, therefore, timely.”

Dagley, et al. v. Murphy, et al. (Lawyers Weekly No. 81-302-14) (7 pages) (Appeals Court – Unpublished) (No. 13-P-625) (March 11, 2014).

Click here to order the full text of the opinion.