Fitzgerald v. Goldberg

8 Mass. L. Rptr. 218
CourtMassachusetts Superior Court
DecidedFebruary 15, 1998
DocketNo. 946620E
StatusPublished

This text of 8 Mass. L. Rptr. 218 (Fitzgerald v. Goldberg) is published on Counsel Stack Legal Research, covering Massachusetts Superior Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fitzgerald v. Goldberg, 8 Mass. L. Rptr. 218 (Mass. Ct. App. 1998).

Opinion

Lauriat, J.

Karen Fitzgerald (“Fitzgerald”), filed this medical malpractice action against Harold L. Goldberg, M.D. and Harold L. Goldberg, M.D., Inc. (collectively “Goldberg”) for negligence (Count I), breach of contract (Count II), informed consent (Count III), and violation of G.L.c. 93A (Count IV), and against Warren J. Becker, M.D. and Warren J. Becker, M.D., Inc. (collectively “Becker”) for negligence (Count V), breach of contract (Count VI), informed consent (Count VII), and violation of G.L.c. 93A (Count VIII).

Goldberg and Becker have each now moved for summary judgment on all counts of Fitzgerald’s complaint. For the following reasons, Goldberg’s motion for summary judgment on Counts I, II, III, and IV is denied. Becker’s motion for summary judgment on Counts V, VI, VII, and VIII is also denied.

BACKGROUND

In June of 1969, Fitzgerald began treating with Goldberg, for issues relating to depression. Her mental condition worsened throughout that summer, resulting in a psychiatric hospitalization after a failed suicide attempt. Fitzgerald enrolled in nursing school in the Fall of 1969, but continued to treat with Goldberg until her graduation in 1973. The severity of her mental status resulted in multiple psychiatric hospitalizations and several episodes of suicidal gestures, attempts, and self-mutilation associated with the occurrence of her menstrual period.

On April 4, 1972, Goldberg referred Fitzgerald to Becker for the purpose of attempting to suppress her menstrual period. On that date, Becker prescribed Depo Provera. This drug was successful in suppressing her menstrual periods for nearly one year. On July 23,1973, Becker saw Fitzgerald a second time in order to restart her menstrual periods.

Fitzgerald received no psychiatric treatment from 1972 until 1976. In the summer of 1976, she experienced another episode of major depression and again came under the care of Goldberg. Throughout the summer, Fitzgerald’s mental status deteriorated, resulting in a psychiatric hospitalization during which she had several episodes of self-mutilation associated with her menstrual period. Fitzgerald thereafter resumed regular psychiatric treatment with Goldberg. In the course of that therapy, Goldberg discussed with her the possibility of undergoing a hysterectomy.

On March 29, 1977, Fitzgerald returned to Becker where she discussed with him the possibility of under[219]*219going a hysterectomy. She subsequently decided to undergo the operation and notified Becker’s office of her decision on or before April 20, 1977. On May 4, 1977, Goldberg sent Becker a letter recommending that he perform the hysterectomy on Fitzgerald, as it was Goldberg’s opinion that “no amount of psychotherapy can alter [Fitzgerald’s overwhelming difficulty accepting her femininity].” After receiving this letter, Becker performed the hysterectomy on May 19, 1977.

Becker examined Fitzgerald post-operatively on June 20, 1977 and noted no medical complications. On May 9, 1978, Fitzgerald wrote to Becker thanking him for performing the hysterectomy. In the letter, she stated, “The relief and happiness I feel knowing that never again will I find myself in a psychiatric hospital, never again will I be so depressed and hate myself so deeply, and never again will I need to destroy myself and cut my wrists — this far outweighs any sadness of my inability to have children.”

Fitzgerald continued to see Becker for annual gynecological services through October of 1992. Fitzgerald’s last appointment with Goldberg was in July of 1978. She received no psychiatric treatment from July of 1978 until March of 1992. In 1992, Fitzgerald’s severe depression returned. She began seeing Shirley Katz (“Katz”) for psychotherapy, who referred her to Dr. Peggy Johnson (“Johnson”) for psychopharmacology. It was in the course of her treatment with Katz and Johnson, that Fitzgerald alleges she became aware of the “negligent and/or harmful ramifications of her hysterectomy.” On December 8, 1994, Fitzgerald filed the present action against Goldberg. She subsequently amended her complaint to include claims against Becker.

DISCUSSION

I.

Goldberg and Becker have moved for summary judgment on the ground that Fitzgerald’s claims are barred by the applicable statute of limitations.1 Actions of contract or tort for medical malpractice must brought within three years after the cause of action accrues. G.L.c. 260, §4. Generally, in medical malpractice cases, a cause of action for personal injuries accrues “when the plaintiff learns, or reasonably should have learned, that [s]he has been harmed by the defendant’s conduct.” Riley v. Presnell, 409 Mass. 239, 243 (1991) (citations omitted). The plaintiff “need not apprehend the full extent or nature of an injury in order for a cause of action to accrue.” Id.

Where, as here, the plaintiff asserts that the injury was inherently unknowable, Massachusetts applies the discovery rule to determine when a cause of action accrues. Id. at 240; Pagliuca v. Boston, 35 Mass.App.Ct. 820, 824 (1994); Lÿoi v. Massachusetts Bay Transportation Authority, 28 Mass.App.Ct. 926, 928 (1990). Where the discovery rule applies, the statute of limitations begins to run when an injury is no longer inherently unknowable, and a reasonably prudent person in the plaintiffs position, reacting to any suspicious circumstances of which she might have been aware, should have discovered the harm and the cause of the harm. Bowen v. Eli Lilly & Co., 408 Mass. 204, 208 (1990); Hendrickson v. Sears, 365 Mass. 83, 89-90 (1974). The question of when a plaintiff knew or should have known of her cause of action is one of fact for the trier of fact. Riley, 40 Mass. at 240.

The defendants assert that Fitzgerald knew or should have known of her injury either at the time of her operation on May 19, 1977, or at the very latest, at the time she sent the letter to Becker on May 9, 1978. It is undisputed that Fitzgerald signed a consent form prior to the operation. It is also clear from her letter to Becker one year later that Fitzgerald knew that as a result of the operation, she could not bear children. This argument assumes, however, that a properly performed hysterectomy was in itself a harm or injury.

By contending that Fitzgerald’s inability to bear children is the only harm she alleges, the defendants misconstrue her complaint.2 A fair reading of the complaint shows that Fitzgerald is claiming that she was injured by the defendants’ acts because the procedure was unnecessary and did not treat her depression. She alleges further that by prescribing a hysterectomy as treatment for her depression, the defendants caused her to be deprived of further appropriate treatment for her depression.

Notwithstanding her knowledge that she could no longer bear children, there is a genuine issue of material fact as to when she knew she had been harmed. At the time the hysterectomy was performed, Fitzgerald believed that it had been properly prescribed to treat her severe depression and that it did in fact alleviate her suffering. It was only in March 1992, when Fitzgerald consulted with Katz and Johnson after her depression returned, that Fitzgerald claims she became aware of her injury. At this time, Katz and Johnson told her that a hysterectomy, however properly performed, was not an accepted or effective treatment for depression.

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Bluebook (online)
8 Mass. L. Rptr. 218, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fitzgerald-v-goldberg-masssuperct-1998.