Parr v. Rosenthal

57 N.E.3d 947, 475 Mass. 368
CourtMassachusetts Supreme Judicial Court
DecidedSeptember 2, 2016
DocketSJC 12014
StatusPublished
Cited by17 cases

This text of 57 N.E.3d 947 (Parr v. Rosenthal) is published on Counsel Stack Legal Research, covering Massachusetts Supreme Judicial Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Parr v. Rosenthal, 57 N.E.3d 947, 475 Mass. 368 (Mass. 2016).

Opinions

Gants, C.J.

The plaintiffs commenced this medical malpractice action against the defendant in the Superior Court for his alleged negligence in connection with a “radio frequency ablation” (REA) procedure he performed on the leg of their minor son, which caused severe burning and eventually resulted in the amputation of the child’s leg. The jury did not reach the issue of negligence because they found that, more than three years before the plaintiffs filed the action, they knew or reasonably should have known that the child had been harmed by the defendant’s conduct, so the action was barred by the statute of limitations for medical malpractice claims.

The plaintiffs contend that the jury should have been instructed on the so-called “continuing treatment doctrine” applicable to medical malpractice claims, a doctrine that heretofore has not been recognized under Massachusetts law. Generally speaking, the doctrine states that a cause of action does not accrue, and therefore the statute of limitations clock does not begin to run, for medical malpractice claims during the period that an allegedly negligent physician continues to treat the patient for the same or a related condition. See, e.g., Borgia v. New York, 12 N.Y.2d 151, 156-157 (1962). We now recognize the doctrine under Massachusetts law and hold that the statute of limitations for a medical malpractice claim generally does not begin to run while the plaintiff and the defendant physician continue to have a doctor-patient relationship and the plaintiff continues to receive treatment from the physician for the same or a related condition. We also hold that the continuing treatment exception to the discovery rule terminates once a patient (or the parent or guardian of a minor patient) learns that the physician’s negligence was the cause of his or her injury. We further hold that, once the allegedly negligent physician no longer has any role in treating the plaintiff, the continuing treatment doctrine does not apply even if the physician had at one time been part of the same “treatment team” as the physicians who continue to provide care. Here, where the [370]*370jury found that the plaintiffs knew or reasonably should have known more than three years before commencing suit that they had been harmed by the conduct of the defendant, and where the defendant’s participation in treating the plaintiff ended more than three years before the suit was filed, the cause of action accrued more than three years before the action was commenced and therefore was not timely under the statute of limitations. We thus affirm the judgment in favor of the defendant.4

Background. We recite the facts in the light most favorable to the plaintiffs. See Lipchitz v. Raytheon Co., 434 Mass. 493, 499 (2001). William Parr was born on September 3, 1994.5 At birth, he had a large lump at the back of his right calf. Within a few weeks, he was taken by his parents, Michele Parr and Michael Parr, to Massachusetts General Hospital (MGH), where he was referred to the “sarcoma group” for imaging studies and a biopsy. The sarcoma group is a team of orthopedic surgeons, general surgeons, radiation oncologists, medical oncologists, and others who treat tumors of the connective tissues, including bones, muscles, fat, nerves, and other tissues. The sarcoma group works on an interdisciplinary model. The team members meet twice weekly and have “very close interdisciplinary relationships.”

Initially, William’s lump was diagnosed by the sarcoma group as a “hamartoma.”6 By January, 2003, when William was eight years old, the size of the lump had increased, causing William occasionally to limp. At that time, Dr. Mark Gebhardt, a member of the sarcoma group at MGH, performed a biopsy in which he removed pieces of the lump for the pathologist to examine. Gebhardt determined that the lump was engulfing much of William’s calf muscle and was having an impact on his nerves and blood vessels. At this time, it was determined that the lump was a “desmoid tumor.” Desmoid tumors are relatively rare, benign tumors but can grow in such a way as to infiltrate normal tissue and impair bodily functions.

Soon after the biopsy, Gebhardt left MGH. William’s care was [371]*371assumed by Dr. David Ebb, a pediatric oncologist, and Dr. Kevin Raskin, an orthopedic surgeon, both of whom were on the staff at MGH and were members of the sarcoma group. At some point prior to November, 2005, Raskin and Ebb proposed and scheduled a surgery on William’s tumor, which at this point had caused abnormality in his gait. Meanwhile, Michele continued to research other options, and she discussed the possibility of RFA treatment with Ebb and Raskin.7 After one of the meetings of the sarcoma group, Raskin and Ebb approached the defendant, Dr. Daniel Rosenthal, about the possibility of performing REA on William’s desmoid tumor. Rosenthal was a board certified radiologist on the staff at MGH and had been a member of the sarcoma group since 1978. He “invented” REA, meaning that he was the first physician to use REA to treat a tumor, and was a recognized leader in the field.8 Through the sarcoma group, he was generally familiar with William’s case. Raskin and Ebb then put Michele in touch with Rosenthal. They told Michele that Rosenthal “was the best doctor in the business basically. He was . . . one of the founders of radiofrequency ablation and had worked at [MGH] for a long time.” Rosenthal eventually agreed [372]*372to perform the procedure and it was presented and approved at subsequent sarcoma group meetings. Rosenthal had never performed RFA on a desmoid tumor before performing the procedure on William, and as of the date of trial had not performed another RFA on a desmoid tumor.

Prior to the procedure, Rosenthal told Michele that the procedure was reasonable and could help William. Michele testified that Rosenthal told her that RFA could “kill” the tumor, but he did not explain any risks of the procedure. Rosenthal said the procedure would be a day surgery, that William would come out with “band-aids” at the sites where the probe had gone in, and that he would be home by the afternoon.

Michael brought William to MGH on the morning of November 4, 2005, for the RFA procedure, and Michele arrived soon thereafter. Rosenthal briefly showed Michael and William a drawing describing the procedure, demonstrating the location of the tumor and other areas he was going to treat. Michael signed a consent form, which listed the risks of the procedure, including bleeding, infection, nerve damage, and failure to cure. The form did not disclose any risk of burns to the skin, blood vessels, or other vital structures. Moreover, the risks associated with the use of a tourniquet were not mentioned.

Rosenthal completed the first three of his planned four ablations when he noticed what he described as “superficial skin blisters” in the area behind William’s knee. At that point, despite not having completed all of the planned ablations, Rosenthal realized that he had already burned more than the entire planned treatment area. On seeing the burned area behind William’s knee, Rosenthal then stopped the procedure and called two other sarcoma group members, Ebb and Raskin, to the operating room. A decision was made to discontinue the procedure.

Ebb explained to Michael and Michele that there had been a complication during the procedure, and that William had suffered a burn above the tumor site.

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Bluebook (online)
57 N.E.3d 947, 475 Mass. 368, Counsel Stack Legal Research, https://law.counselstack.com/opinion/parr-v-rosenthal-mass-2016.