LORRAINE BELLMAR, Personal Representative v. ROBERT MOORE & Another.

• Court: Massachusetts Appeals Court
• Decided: December 29, 2023
• Docket: 23-P-0014
• Status: Unpublished

Opinion

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

23-P-14 8

LORRAINE BELLMAR, personal representative,1

vs.

ROBERT MOORE & another.2

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

On June 12, 2016, Harry Bellmar died from ventricular

arrhythmia at the age of sixty-two and the plaintiff, as

personal representative of Mr. Bellmar's estate, filed suit

against the defendants, alleging negligent medical treatment and

wrongful death. The sole issue on appeal is whether summary

judgment was appropriate under G. L. c. 260, § 4. We hold that

it was.

Background. Because this appeal relates to the grant of

summary judgment, we discuss the facts necessary to decide this

issue in the light most favorable to the nonmoving party, the

1 Of the estate of Harry Bellmar. 2 Robert R. Moore, M.D., Ph.D., P.C., doing business as Moore Family Practice. plaintiff. See Bulwer v. Mount Auburn Hosp., 473 Mass. 672, 680

(2016).

Dr. Robert Moore was Mr. Bellmar's primary care physician.

At all relevant times, Mr. Bellmar suffered from morbid obesity

and osteoarthritis of the knees and was suspected to suffer from

sleep apnea. In 2006, when Mr. Bellmar was fifty-three years

old, in preparation for lumbar disc surgery, an

electrocardiogram (EKG) was performed. Dr. Moore wrote in his

medical notes that Mr. Bellmar had an abnormal EKG and noted

there was "possible ectopic atrial rhythm." A nurse

practitioner working under Dr. Moore's supervision diagnosed

Mr. Bellmar with hypertension and prescribed antihypertensive

medication, and Dr. Moore cleared Mr. Bellmar for surgery.

Dr. Moore did not order or recommend additional cardiac testing

or a cardiology consultation based on the abnormal EKG report

during Mr. Bellmar's 2006 office visit or anytime thereafter.

After that visit. Dr. Moore saw Mr. Bellmar on thirteen other

occasions between 2006 and 2015.3 Mr. Bellmar died from

ventricular arrhythmia in 2016.

3 The plaintiff's complaint provides the dates of these visits: December 13, 2006; December 17, 2010; May 23, 2011; January 5, 2012; April 23, 2012; May 14, 2012; July 10, 2013; May 27, 2014; June 16, 2014; September 26, 2014; June 2, 2015; November 6, 2015; and November 24, 2015.

2 Mr. Bellmar's widow, as personal representative of his

estate, filed the instant suit in 2017, alleging that the

defendants were negligent in their medical treatment of

Mr. Bellmar. During discovery, the plaintiff provided reports

written by her expert witness. Dr. Richard Pels, regarding

Mr. Bellmar's health conditions, the treatment provided to him

by the defendants, and the reasonable standard of care.

Dr. Pels stated that based on Mr. Bellmar's 2006 EKG report.

Dr. Moore had deviated from the standard of medical care by

failing to follow up on the 2006 EKG results, especially given

Mr. Bellmar's risk factors. After a request by the defendants,

the court held an evidentiary hearing pursuant to Daubert v.

Merrell Dow Pharms., Inc., 509 U.S. 579, 597 (1993), and

Commonwealth v. Lanigan, 419 Mass. 15, 26 (1994), at which

Dr. Pels testified.4 Dr. Pels testified that had Mr. Bellmar

been prescribed different medications or treatments, his death

would have been preventable. Dr. Pels was also asked, "And even

if [Mr. Bellmar] had a normal EKG in 2006, would his underlying

risk factors warrant the performance of a follow-up EKG?"

Dr. Pels responded, "Yes, it would have."

The defendants filed a motion for summary judgment, arguing

that G. L. c. 260, § 4, the statute of repose, bars the

4 The court's ruling on the defendant's Daubert-Lanigan motion is not at issue on this appeal.

3 plaintiff's claims as a matter of law.5 After the Superior Court

judge heard arguments from the parties, the judge ruled in favor

of the defendants. This appeal followed.

Discussion. The plaintiff argues that summary judgment was

not appropriate and that we should overrule Moran v. Benson, 100

Mass. App. Ct. 744 (2022),6 because it inappropriately expands

the scope of G. L. c. 260, § 4. We first state the applicable

standard of review before examining the holding in Moran and

whether summary judgment was appropriate in this case.

1. Standard of review. A motion for summary judgment

under Mass. R. Civ. P. 56 (c), as amended, 436 Mass. 1404

(2002), is appropriate where "the moving party . . . 'show[s]

that there is no genuine issue as to any material fact and that

the moving party is entitled to a judgment as a matter of law'

based on the undisputed facts." Premier Capital, LLC v. KMZ,

Inc., 464 Mass. 467, 474 (2013), quoting Mass. R. Civ.

P. 56 (c). "In deciding a motion for summary judgment the court

may consider the pleadings, depositions, answers to

interrogatories, admissions on file, and affidavits" (citation

5 The defendants also argued that the plaintiff failed to show exactly when the interstitial scarring that led to Mr. Bellmar's death occurred. The Superior Court allowed summary judgment on the grounds that the statute of repose bars recovery and, because we affirm on those grounds, we need not address the defendants' other argument. 6 The Supreme Judicial Court denied further appellate review. See 498 Mass. 1108 (2022).

4 omitted). Bank of N.Y. Mellon v. Morin, 96 Mass. App. Ct. 503,

506 (2019). We review the allowance of a motion for summary

judgment de novo. Bulwer, 473 Mass, at 680.

2. Revisiting Moran. General Laws c. 260, § 4, second

par., provides as follows:

"Actions of contract or tort for malpractice, error or mistake against physicians, surgeons, dentists, optometrists, hospitals and sanitoria 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 occurrence of the act or omission which is the alleged cause of the Injury upon which such action is based except where the action is based upon the leaving of a foreign object in the body" (emphasis added). This period of repose creates an "absolute time limit" on

medical malpractice claims, even when "the plaintiff's injury

does not occur, or is not discovered, until after the statute's

time limit has expired." Moran, 100 Mass. App. Ct. at 746,

quoting Parr v. Rosenthal, 475 Mass. 368, 382 (2016). "A repose

period begins to run from some 'definitely established event,'

abolishing a plaintiff's cause of action thereafter, even if the

injury does not occur, or is not discovered, until after the

statute's time limit has expired" (citation omitted). Rudenauer

v. Zafiropoulos, 445 Mass. 353, 358 (2005). Although this can

lead to harsh results, see Moran, supra at 748, the

Legislature's intent was that tolling under the statute not be

allowed in an effort to create "systemwide certainty."

Rudenauer, supra at 359.

5 In Moran, the patient underwent a magnetic resonance

imaging (MRI) scan and the results indicated that she was

suffering from multiple sclerosis. See 100 Mass. App. Ct. at

744-745. The doctor failed to inform her of these results,

instead treating her for migraine headaches. See id. This

court ruled that there was only one "definitely established

event" from which the period of repose could be considered to

have begun: the initial failure to act after the MRI. Id. at

747. This court affirmed the judgment in favor of the medical

provider defendants because the only "definitely established

event" occurred more than seven years prior to the filing of the

complaint and the continuing medical treatment, which was within

seven years of the filing of the complaint, could not stand

alone. _Id. ("Moran labors hard to claim the defendants' actions

within the repose period are separate acts or omissions

constituting negligence; however, such acts are nothing more

than the defendants' acts of continuing treatment").

The plaintiff argues that Moran inappropriately expands the

scope of G. L. c. 260, § 4, by preventing claims arising from

negligence that occurred inside the period of repose. We

disagree. In Moran, the court held that the initial failure to

act on the MRI scan eclipsed any other claims of negligence and

was thus the only "definitely established event." Id. at 747.

Our holding in Moran thus does not eliminate the possibility of

6 a complaint surviving summary judgment where the plaintiff has

sufficiently established that subsequent medical appointments

inside the period of repose are not simply continuing medical

treatment but are rather the basis of a negligence claim on

their own. See id. To simplify, Moran does not address the

outcome under G. L. c. 260, § 4, where the plaintiff has

successfully pleaded multiple "definitely established events,"

some of which are within seven years of the filing of the

complaint and some of which are not. As a result, we see no

need to revisit Moran because its holding does not, as the

plaintiff argues, improperly provide immunity from suit for

negligent acts that occur within the period of repose.

3. Summary judgment. Turning to the facts of this case,

the motion judge, following this court's holding in Moran,

ordered entry of summary judgment because "[t]he allegations in

the instant complaint clearly center on Dr. Moore's failure to

order subsequent testing after the abnormal EKG in December

2006," which is outside the period of repose. The plaintiff

claims that despite the fact that the 2006 EKG was outside the

period of repose, summary judgment should not have been granted

since eleven of the thirteen subsequent medical appointments

mentioned in the complaint were within seven years of the filing

of the complaint. We disagree.

7 The plaintiff has not pleaded or demonstrated any acts of

negligence that could be considered "definitely established

events" which occurred within seven years of the filing of the

complaint. The subsequent medical appointments which occurred

within seven years of the filing of the complaint cannot stand

alone because the plaintiff has not established what the

standard of care required in the absence of the alleged

negligence that occurred more than seven years before the

complaint was filed. "The proper standard is whether the

physician, if a general practitioner, has exercised the degree

of care and skill of the average qualified practitioner, taking

into account the advances in the profession." Palandjian v.

Foster, 446 Mass. 100, 104 (2006), quoting Brune v. Belinkoff,

354 Mass. 102, 109 (1968). The plaintiff's complaint does not

allege independent negligence by Dr. Moore after his 2006 EKG

other than his inaction in failing to order further tests.

Although the testimony of Dr. Pels makes this case closer than

Moran, it does not eliminate this fundamental deficiency.

Dr. Pels confirmed that even if Mr. Bellmar had a normal EKG in

2006, his underlying risk factors would warrant the performance

of a follow-up EKG.7 In this context, "warrant" means "to serve

7 Although this testimony is not the type of evidence specifically listed under Mass. R. Civ. P. 56 (c), its inclusion in the summary judgment exhibits was appropriate and we consider as or give adequate ground or reason for." See Merriam-

Webster's Collegiate Dictionary 1410 (11th ed. 2005). This

testimony thus means that even without the abnormal EKG in 2006,

testing would have been appropriate during the medical

appointments, including those that occurred within seven years

of the filing of the complaint. The testimony does not

establish either what the standard of care was during these

subsequent medical appointments, or that said standard of care

was breached.

Fundamentally, we hold that the plaintiff did not present

any evidence to the motion judge that would distinguish this

case from Moran: evidence that the defendants, even without the

abnormal EKG in 2006, were negligent during the subsequent

medical appointments. Accordingly, we conclude that the

subsequent medical appointments in this case are the type of

it when deciding this issue on appeal. See Cornelias v. Viveiros, 410 Mass. 314, 316-318 (1991).

9 continuing treatment described in Moran and that summary

judgment was appropriate.

Judgment affirmed.

By the Court (Ditkoff, Englander & Walsh, JJ.8),

Assistant Clerk

Entered: December 29, 2023.

The panelists are listed in order of seniority.