NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
24-P-68
JOHN GIANINO, personal representative,1
vs.
BOSTON MEDICAL CENTER & others.2
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff3 appeals from a judgment dismissing his
complaint against the defendant Dr. Joseph Louca, on the ground
that the claims were time-barred by the statute of repose
applicable to medical malpractice actions, G. L. c. 260, § 4.4
On appeal, the plaintiff argues that the judge erred in failing
to (1) apply the doctrine of equitable tolling and (2) toll the
1 Of the estate of Alice Zousoumas.
2Michelle Sia, Christine Curry, Joseph Louca, and Thamarah Crevecoeur.
3The plaintiff was substituted as the plaintiff on appeal following Zousoumas's death.
4The claims against Boston Medical Center, Michelle Sia, Christine Curry, and Thamarah Crevecoeur remain pending in the Superior Court. statute of repose in accordance with the Supreme Judicial
Court's third updated order promulgated in response to the
COVID-19 pandemic (COVID-19 order).5 We affirm.
Background. Between 2013 and 2014, Alice Zousoumas
received prenatal, intrapartum, and postpartum care from a
cohort of clinicians at Boston Medical Center (BMC), in
connection with her pregnancy, labor, and delivery. As part of
that care, on January 7, 2014, Dr. Louca administered epidural
anesthesia to Zousoumas while she was infected with Methicillin-
resistant Staphylococcus aureus (MRSA), resulting in an epidural
abscess that escalated into chronic infections, permanent
disabilities, and other long-term health effects.
On January 6, 2017, Zousoumas filed suit against BMC and
several healthcare professionals alleging, inter alia, medical
malpractice. As relevant here, she named Dr. Eddy Feliz as the
anesthesiologist who administered the epidural. She did so
based on medical records produced by BMC in discovery that
seemed to identify Dr. Feliz as the attending anesthesiologist.
On May 22, 2017, Dr. Feliz filed an answer to the complaint
denying the allegations against him and later answered
5 See Third Updated Order Regarding Court Operations Under the Exigent Circumstances Created by the COVID-19 (Coronavirus) Pandemic, No. OE-144 (June 24, 2020), https://www.mass.gov/doc/repealed-sjc-third-updated-order- regarding-court-operations-under-the-exigent- circumstances/download [https://perma.cc/5K7R-27AT].
2 interrogatories asserting that he "never had any interactions
with [Zousoumas] at any time," and that he had no knowledge of
other physicians involved in her care. Zousoumas was deposed on
March 11, 2020, during which she conceded that she had neither
met nor spoken with Dr. Feliz, and that he had never been
involved in her care.
Nine months later, on January 14, 2021, Zousoumas's
attorneys learned that Dr. Louca was the anesthesiologist who
performed the epidural. On February 10, 2021, Zousoumas served
a motion to amend the complaint pursuant to Superior Court Rule
9A, seeking to substitute Dr. Louca as a defendant. The judge
allowed the motion on February 16, 2021. Thereafter, Dr. Louca
moved to dismiss so much of the complaint alleging claims
against him, on the ground that they were time-barred by G. L.
c. 260, § 4. In a thoughtful memorandum of decision, a judge
allowed the motion to dismiss and entered a separate and final
judgment in favor of Dr. Louca. This appeal followed.
Discussion. "We review the allowance of a motion to
dismiss de novo, accepting as true all well-pleaded facts
alleged in the complaint." Ryan v. Mary Ann Morse Healthcare
Corp., 483 Mass. 612, 614 (2019), citing Calixto v. Coughlin,
481 Mass. 157, 158 (2018).
3 1. Statute of repose. As a threshold matter, the
nomenclature of G. L. c. 260, § 4 instructs our resolution of
the plaintiff's arguments.
"General Laws c. 260, § 4, provides in pertinent part that 'in no event shall any . . . action' sounding in 'contract or tort for malpractice, error or mistake against physicians, surgeons . . . hospitals and sanitoria' 'be commenced more than seven years after occurrence of the act or omission which is the alleged cause of the injury upon which such action is based.' This language constitutes a statute of repose" (footnote omitted).
Joslyn v. Chang, 445 Mass. 344, 346-347 (2005). Consequently,
while G. L. c. 260, § 4 does not explicitly designate itself as
such, the Supreme Judicial Court has expressly characterized
this seven-year limit on medical malpractice actions as a
statute of repose.
Here, the "act or omission" that allegedly caused
Zousoumas' injury was the epidural procedure performed by Dr.
Louca on January 7, 2014. Thus, to be within the seven-year
statute of repose, the plaintiff needed to have brought this
action no later than January 7, 2021. The motion for leave to
amend the complaint to substitute Dr. Louca, filed February 10,
2021, was too late. See Nett v. Bellucci, 437 Mass. 630, 631
(2002) (operative date for calculating statute of repose is date
of filing motion for leave to amend complaint to add party).
2. Equitable tolling. The plaintiff contends that he is
entitled to application of the doctrine of equitable tolling
4 because he was misled by inaccurate medical records and the
"[d]efendant's tact[ica]l failure to more timely disclose [Dr.
Louca] as a relevant party." See Halstrom v. Dube, 481 Mass.
480, 485 (2019). Even assuming this to be true, we are
constrained to reject the plaintiff's argument that the doctrine
is available here.
A statute of repose is "a rigid prohibition of action."
Joslyn, 445 Mass. at 350. It is evident that "statutes of
repose are not subject to any form of equitable tolling." Id.
See Nett, 437 Mass. at 646 ("Notwithstanding compelling
equitable considerations, statutes of repose are not tolled").
Indeed, a "statute of repose eliminates a plaintiff's cause of
action even in cases of fraudulent concealment." Bridgwood v.
A.J. Wood Constr., Inc., 480 Mass. 349, 354 (2018). Where,
here, the plaintiff moved to amend the complaint more than a
month after the statute of repose had passed, "we cannot
introduce an equitable exception when the Legislature has
fashioned an ironclad rule." Joslyn, supra at 351.
3. COVID-19 order. The plaintiff further asserts that the
COVID-19 order extended the statute of repose, because it tolled
"all civil statutes of limitations . . . from March 17, 2020,
through June 30, 2020," thus providing an additional 105 days
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NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
24-P-68
JOHN GIANINO, personal representative,1
vs.
BOSTON MEDICAL CENTER & others.2
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff3 appeals from a judgment dismissing his
complaint against the defendant Dr. Joseph Louca, on the ground
that the claims were time-barred by the statute of repose
applicable to medical malpractice actions, G. L. c. 260, § 4.4
On appeal, the plaintiff argues that the judge erred in failing
to (1) apply the doctrine of equitable tolling and (2) toll the
1 Of the estate of Alice Zousoumas.
2Michelle Sia, Christine Curry, Joseph Louca, and Thamarah Crevecoeur.
3The plaintiff was substituted as the plaintiff on appeal following Zousoumas's death.
4The claims against Boston Medical Center, Michelle Sia, Christine Curry, and Thamarah Crevecoeur remain pending in the Superior Court. statute of repose in accordance with the Supreme Judicial
Court's third updated order promulgated in response to the
COVID-19 pandemic (COVID-19 order).5 We affirm.
Background. Between 2013 and 2014, Alice Zousoumas
received prenatal, intrapartum, and postpartum care from a
cohort of clinicians at Boston Medical Center (BMC), in
connection with her pregnancy, labor, and delivery. As part of
that care, on January 7, 2014, Dr. Louca administered epidural
anesthesia to Zousoumas while she was infected with Methicillin-
resistant Staphylococcus aureus (MRSA), resulting in an epidural
abscess that escalated into chronic infections, permanent
disabilities, and other long-term health effects.
On January 6, 2017, Zousoumas filed suit against BMC and
several healthcare professionals alleging, inter alia, medical
malpractice. As relevant here, she named Dr. Eddy Feliz as the
anesthesiologist who administered the epidural. She did so
based on medical records produced by BMC in discovery that
seemed to identify Dr. Feliz as the attending anesthesiologist.
On May 22, 2017, Dr. Feliz filed an answer to the complaint
denying the allegations against him and later answered
5 See Third Updated Order Regarding Court Operations Under the Exigent Circumstances Created by the COVID-19 (Coronavirus) Pandemic, No. OE-144 (June 24, 2020), https://www.mass.gov/doc/repealed-sjc-third-updated-order- regarding-court-operations-under-the-exigent- circumstances/download [https://perma.cc/5K7R-27AT].
2 interrogatories asserting that he "never had any interactions
with [Zousoumas] at any time," and that he had no knowledge of
other physicians involved in her care. Zousoumas was deposed on
March 11, 2020, during which she conceded that she had neither
met nor spoken with Dr. Feliz, and that he had never been
involved in her care.
Nine months later, on January 14, 2021, Zousoumas's
attorneys learned that Dr. Louca was the anesthesiologist who
performed the epidural. On February 10, 2021, Zousoumas served
a motion to amend the complaint pursuant to Superior Court Rule
9A, seeking to substitute Dr. Louca as a defendant. The judge
allowed the motion on February 16, 2021. Thereafter, Dr. Louca
moved to dismiss so much of the complaint alleging claims
against him, on the ground that they were time-barred by G. L.
c. 260, § 4. In a thoughtful memorandum of decision, a judge
allowed the motion to dismiss and entered a separate and final
judgment in favor of Dr. Louca. This appeal followed.
Discussion. "We review the allowance of a motion to
dismiss de novo, accepting as true all well-pleaded facts
alleged in the complaint." Ryan v. Mary Ann Morse Healthcare
Corp., 483 Mass. 612, 614 (2019), citing Calixto v. Coughlin,
481 Mass. 157, 158 (2018).
3 1. Statute of repose. As a threshold matter, the
nomenclature of G. L. c. 260, § 4 instructs our resolution of
the plaintiff's arguments.
"General Laws c. 260, § 4, provides in pertinent part that 'in no event shall any . . . action' sounding in 'contract or tort for malpractice, error or mistake against physicians, surgeons . . . hospitals and sanitoria' 'be commenced more than seven years after occurrence of the act or omission which is the alleged cause of the injury upon which such action is based.' This language constitutes a statute of repose" (footnote omitted).
Joslyn v. Chang, 445 Mass. 344, 346-347 (2005). Consequently,
while G. L. c. 260, § 4 does not explicitly designate itself as
such, the Supreme Judicial Court has expressly characterized
this seven-year limit on medical malpractice actions as a
statute of repose.
Here, the "act or omission" that allegedly caused
Zousoumas' injury was the epidural procedure performed by Dr.
Louca on January 7, 2014. Thus, to be within the seven-year
statute of repose, the plaintiff needed to have brought this
action no later than January 7, 2021. The motion for leave to
amend the complaint to substitute Dr. Louca, filed February 10,
2021, was too late. See Nett v. Bellucci, 437 Mass. 630, 631
(2002) (operative date for calculating statute of repose is date
of filing motion for leave to amend complaint to add party).
2. Equitable tolling. The plaintiff contends that he is
entitled to application of the doctrine of equitable tolling
4 because he was misled by inaccurate medical records and the
"[d]efendant's tact[ica]l failure to more timely disclose [Dr.
Louca] as a relevant party." See Halstrom v. Dube, 481 Mass.
480, 485 (2019). Even assuming this to be true, we are
constrained to reject the plaintiff's argument that the doctrine
is available here.
A statute of repose is "a rigid prohibition of action."
Joslyn, 445 Mass. at 350. It is evident that "statutes of
repose are not subject to any form of equitable tolling." Id.
See Nett, 437 Mass. at 646 ("Notwithstanding compelling
equitable considerations, statutes of repose are not tolled").
Indeed, a "statute of repose eliminates a plaintiff's cause of
action even in cases of fraudulent concealment." Bridgwood v.
A.J. Wood Constr., Inc., 480 Mass. 349, 354 (2018). Where,
here, the plaintiff moved to amend the complaint more than a
month after the statute of repose had passed, "we cannot
introduce an equitable exception when the Legislature has
fashioned an ironclad rule." Joslyn, supra at 351.
3. COVID-19 order. The plaintiff further asserts that the
COVID-19 order extended the statute of repose, because it tolled
"all civil statutes of limitations . . . from March 17, 2020,
through June 30, 2020," thus providing an additional 105 days
5 for the plaintiff to amend his complaint.6 See COVID-19 order,
supra at ¶ 13. In essence, the plaintiff asks us to interpret
"all civil statutes of limitations" to include statutes of
repose. This we decline to do.
In interpreting the COVID-19 order, "we rely upon basic
principles of statutory construction." Shaw's Supermkts., Inc.
v. Melendez, 488 Mass. 338, 341 (2021). "If the language is
clear and unambiguous, we 'must give effect to its plain and
ordinary meaning.'" Id., quoting Doherty v. Civil Serv. Comm'n,
486 Mass. 487, 491 (2020). "Where a word is not defined in a
statute, we give the word its usual and accepted meaning, so
long as those meanings are consistent with the statutory
purpose." Shaw's Supermkts., Inc., supra at 342.
The plaintiff points to the title of G. L. c. 260,
"Limitations on Actions," to support his contention that the
seven-year limit imposed by § 4 falls under the umbrella of
statutes of limitations. This, however, is antithetical to the
Supreme Judicial Court's explicit characterization of the
relevant portion of § 4 as a statute of repose, see Joslyn, 445
6 The plaintiff also references a paragraph in the COVID-19 order tolling "all deadlines set forth in statutes or court rules . . . that expired at any time from March 17, 2020, through June 30, 2020." COVID-19 order, supra at ¶ 14. This provision is of no help to the plaintiff, as his claims expired on January 7, 2021, a date well outside the expiration window specified in the COVID-19 order. See Shaw's Supermkts., Inc., 488 Mass. at 343.
6 Mass. at 346-347, and its repeated conclusion that "[a] statute
of repose is distinct from a statute of limitations,"
Conservation Comm'n of Norton v. Pesa, 488 Mass. 325, 332
(2021). See Bridgwood, 480 Mass. at 351 ("Statutes of repose
and statutes of limitations are different types of limitations
on actions"). "While a statute of limitations provides a
procedural defense to a legal claim, a statute of repose
provides a substantive right to be free from liability."
Conservation Comm'n of Norton, supra at 332, quoting Bridgwood,
supra at 352. Thus, applying the "usual and accepted meaning"
of statutes of limitations, we cannot infer that the Supreme
Judicial Court intended to amalgamate the two independent
limitations as one. See Bridgwood, supra.
This result is consistent with the scope and purpose of the
COVID-19 order as being "limited to court operations under the
exigent circumstances created by the COVID-19 pandemic." Dunn
v. Langevin, 492 Mass. 374, 378 (2023). In the same way the
Supreme Judicial Court "did not purport to supervise executive
agencies" in issuing the COVID-19 order, Graycor Constr. Co. v.
Pacific Theatres Exhibition Corp., 490 Mass. 636, 646 (2022),
neither can it have intended to supersede policy decisions made
7 by the Legislature, see Moran v. Benson, 100 Mass. App. Ct. 744,
748-749 (2022).
Judgment entered September 28, 2023, affirmed.
By the Court (Blake, C.J., Neyman & Grant, JJ.7),
Clerk
Entered: December 27, 2024.
7 The panelists are listed in order of seniority.