Toas v. Shapiro

23 Mass. L. Rptr. 194
CourtMassachusetts Superior Court
DecidedMarch 15, 2007
DocketNo. 0000640
StatusPublished
Cited by3 cases

This text of 23 Mass. L. Rptr. 194 (Toas v. Shapiro) 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
Toas v. Shapiro, 23 Mass. L. Rptr. 194 (Mass. Ct. App. 2007).

Opinion

Nickerson, Gary A., J.

This matter is before the Court on defendant’s renewed motion for summary judgment pursuant to Mass.R.Civ.P. 56(c) and final judgment pursuant to Mass.R.Civ.P. 58. The defendant filed this action to renew his previously submitted motion for summary judgment on the grounds that no genuine issue of material fact exists on plaintiffs claims. The defendant, Gary L. Shapiro, M.D. (Shapiro), argues that two recent Supreme Judicial Court decisions,2 both of which were decided after this court (Connon, J.) ruled on defendant’s original motion for summary judgment, directly rebut the legal argument set forth in plaintiffs opposition to defendant’s original motion for summary judgment.3 For the following reasons, the defendant’s renewed motion for summary judgment is ALLOWED.

BACKGROUND

The undisputed facts viewed in the light most favorable to the non-moving party as revealed by the summary judgment record are as follows.

On October 8, 1991, Patricia Toas (Toas) presented at the Cape Cod Hospital emergency room with abdominal pain. X-rays taken at the time showed a normal abdomen. Two days later, Toas had an abdominal ultrasound that revealed a liver mass. Later that [195]*195month, Toas consulted with Shapiro for evaluation and treatment of the abdominal pain and an abnormal ultrasound. The defendant treated Toas numerous times between October 29, 1991 and Februaiy 17, 1993.

On December 2, 1996, Toas presented to the Cape Cod Hospital with fainting spells, light-headedness, dizziness, clamminess, and abdominal pain. Again, Toas sought out Shapiro for evaluation and treatment. The defendant treated Toas on at least three occasions in December 1996 and January 1997. On October 28, 1997, Toas was admitted to Jordan Hospital with abdominal pain. A procedure on November 6, 1997 confirmed the presence of cancer and Toas ultimately succumbed to metastatic carcinoma on June 7, 1998. As outlined in the preceding paragraphs, Shapiro treated Toas during two distinct time periods: October 1991 to Februaiy 1993 and December 1996 to Janu-aiy 1997.

This is an action alleging medical malpractice. The plaintiff claims that Shapiro deviated from the standard of care of the reasonable, competent and prudent physician specializing in the fields of internal medicine and gastroenterology. The plaintiff alleges Shapiro failed to conduct appropriate diagnostic testing to ascertain the cause of Toas’ abdominal pain from October 1991 to Januaiy 1997. The plaintiff argues that the defendant’s deviation from the required standard of care resulted in a delay in diagnosis and treatment of Toas’ condition and as a result of the delay, Toas’ cancer had spread so widely that it was incurable. The plaintiff alleges that no other physician was involved with Toas’ specific abdominal care and that Shapiro owed Toas a continuing obligation to treat and diagnose Toas’ condition from October 1991 through Januaiy 1997. The plaintiff argues that the statute of repose be read to include some form of continuous treatment doctrine which would toll the statute until the doctor’s treatment of the specific condition ends.

The defendant maintains that at all relevant times his care was appropriate and complied with the standard of care required of the average qualified physician practicing gastroenterology. The defendant denies any liability and further maintains that nothing he did or failed to do caused or attributed to Toas’ death. In his original motion, and again on his renewed motion for summary judgment, the defendant argues that the plaintiffs case is barred by the applicable statute of repose. The plaintiff filed his complaint in October 2000, which Shapiro claims is more then seven years after any alleged negligent treatment occurred. The defendant argues that recent SJC decisions unequivocally state that the statute of repose is an absolute bar to claims filed seven years after the alleged negligence. Further, Shapiro argues that one of the recent SJC decisions explicitly states that the continuing treatment doctrine does not toll the statute of repose.

DISCUSSION

Summaiy judgment shall be granted when there is no genuine dispute as to any material fact and the summary judgment record entitles the moving party to judgment as a matter of law. Cassesso v. Commissioner of Correction, 390 Mass. 419, 422 (1983); Community Nat’l Bank v. Dawes, 369 Mass. 550, 553 (1976); Mass.R.Civ.P. 56(c). The moving party bears the burden of affirmatively demonstrating that there is no genuine issue of material fact on eveiy relevant issue. Pederson v. Time, Inc., 404 Mass. 14, 17 (1989). Once the party establishes the absence of a triable issue, the party opposing the motion must allege specific facts establishing the existence of a genuine issue of material fact. See Pederson, 404 Mass. at 17; Godbout v. Cousens, 396 Mass. 254, 261 (1985). A party moving for summaiy judgment who does not bear the burden of proof at trial may demonstrate the absence of a triable issue either by submitting affirmative evidence negating an essential element of the non-moving party’s case or by showing that the non-moving party has no reasonable expectation of proving an essential element of its case at trial. Flesner v. Technical Communications Corp., 410 Mass. 805, 809 (1991); Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716 (1991). On a motion for summaiy judgment, the court considers the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits to determine whether summaiy judgment is appropriate. McGuiness v. Cotter, 412 Mass. 617, 620 (1992). In determining whether genuine issues of fact exist, the court must draw all inferences from the underlying facts in the light most favorable to the party opposing the motion. Bailey v. Bellotti, 459 U.S. 970 (1982).

A. Liability for Treatment Between October 1991 and December 1996

In general, statutes of repose function to limit the duration of liability. Klein v. Catalano, 386 Mass. 701, 709 (1982). The statute of repose set out in G.L.c. 260, §4 bars a medical malpractice claim based on negligent acts or omissions that occur seven years prior to filing a complaint.4 The purpose of the statute of repose is to “place an absolute time limit on the liability of those within [its] protection and to abolish a plaintiffs cause of action thereafter, even if the plaintiffs injury does not occur, or is not discovered, until after the statute’s time limit has expired.” Nett v. Bellucci, 437 Mass. 630, 635 (2002), quoting McGuinness v. Cotter, 412 Mass. 617, 622 (1992). The statutes serve to “give particular types of defendants the benefit of a date certain on which their liability for past conduct will definitively come to an end.” Id. at 639.

The recent SJC decisions, Joslyn v. Chang, 445 Mass. 344 (2005), and Rudenauer v. Zafiropoulos, 445 Mass. 353 (2005), state that the statute of repose is an absolute bar to claims filed seven years after the [196]*196alleged negligence.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Paul E. Forshey v. Theodore A. Jackson, M.D.
West Virginia Supreme Court, 2024
Forshey v. Jackson
671 S.E.2d 748 (West Virginia Supreme Court, 2009)

Cite This Page — Counsel Stack

Bluebook (online)
23 Mass. L. Rptr. 194, Counsel Stack Legal Research, https://law.counselstack.com/opinion/toas-v-shapiro-masssuperct-2007.