Accrual of Medical Malpractice Actions:

Cause of action for negligence in performing surgical operation arose when operation was performed. Maloney v. Brackett (1931) 176 N.E. 604, 275 Mass. 479; Cappuci v. Barone (1919) 165 N.E. 653, 266 Mass. 578.

Under Massachusetts law, the operative date for commencement of an action for purposes of statute of repose was the date of filing of a motion for leave to amend a complaint to add a party, rather than the date the amended complaint was filed after leave of court was granted pursuant to rule requiring leave of court to file an amended complaint. Nett ex rel. Nett v. Bellucci, C.A.1 (Mass.)2002, 306 F.3d 1153. Limitation Of Actions  124

Under Massachusetts law, policies underlying statute of repose did not require that motion for leave to amend complaint to add a party comply with the local rules of court applicable to the filing of such motions, as long as the motion was accepted for filing within the period provided by the statute of repose. Nett ex rel. Nett v. Bellucci, C.A.1 (Mass.)2002, 306 F.3d 1153. Limitation Of Actions  124

Limitations period governing malpractice claim began to run no later than month in which patient wrote complaint to Board of Registration in Medicine and retained attorneys. Doyle v. Shubs, C.A.1 (Mass.)1990, 905 F.2d 1. Limitation Of Actions  95(12)

Patient's awareness of connection between her injury and hysterectomy was sufficient to begin running of statute of limitations on medical malpractice claim. Doyle v. Shubs, D.Mass.1989, 717 F.Supp. 946, amendment denied 729 F.Supp. 918, affirmed 905 F.2d 1. Limitation Of Actions  95(12)

Patient's claim for failure to obtain informed consent to surgery accrued, and three-year statute of limitations began to run, almost immediately after surgery, given that patient did not dispute that while she was still in recovery room, she learned that defendant had performed surgery for which she had not given permission, and in days and weeks following unconsented-to surgery, she experienced painful and unpleasant side effects which she consistently ascribed to the surgery. Darviris v. Petros (2003) 795 N.E.2d 1196, 59 Mass.App.Ct. 323. Limitation Of Actions  95(12)

Operative date for commencement of malpractice action against radiologist, for purposes of seven-year statute of repose, was date parents filed motion for leave to amend complaint to add radiologist as party; despite parents' initial failure to comply with local rule governing service of motions for leave to amend, radiologist was served with motion to amend and notified of fact that motion had been filed, all prior to expiration of seven-year repose period, such that he had actual knowledge that parents had taken first step in court to pursue a malpractice claim against him for his alleged misreading of prenatal ultrasound. Nett v. Bellucci (2002) 774 N.E.2d 130, 437 Mass. 630, answer to certified question conformed to 306 F.3d 1153. Limitation Of Actions  124

Decision of clerk to accept for filing parents' motion to leave to amend their medical malpractice complaint to add radiologist as a part, notwithstanding the lack of a certificate of service, as was required by local rules, did not implicate policies underlying the seven-year statute of repose for such actions. Nett v. Bellucci (2002) 774 N.E.2d 130, 437 Mass. 630, answer to certified question conformed to 306 F.3d 1153. Limitation Of Actions  124

Massachusetts three-year limitations period for medical malpractice actions accrues when the plaintiff learns, or reasonably should have learned, that he has been harmed by the defendant's conduct. Dasha v. Adelman (1998) 699 N.E.2d 20, 45 Mass.App.Ct. 418, review denied 705 N.E.2d 277, 428 Mass. 1107. Limitation Of Actions  95(12)

Medical malpractice action accrues when the plaintiff learns, or reasonably should have learned, that he or she was harmed by the defendant's conduct; it is not necessary that the plaintiff have notice that the defendant was actually responsible for the injury, only that she have knowledge or sufficient notice that the medical care given by the defendant may have caused the injury. Lindsay v. Romano (1998) 696 N.E.2d 520, 427 Mass. 771. Limitation Of Actions  95(12)

Individual variations in judgment, intellect, or psychological health which are unrelated to complained of conduct are not considered in determining whether statute of limitations has run on psychotherapeutic malpractice action; only if reasonable person in plaintiff's position would have been able to discern harm or cause of harm will cause of action accrue and limitations period begin to run. Riley v. Presnell (1991) 565 N.E.2d 780, 409 Mass. 239. Limitation Of Actions  74(1); Limitation Of Actions  95(12)

One need not apprehend full extent or nature of injury in order for cause of action to accrue for medical malpractice. Riley v. Presnell (1991) 565 N.E.2d 780, 409 Mass. 239. Limitation Of Actions  95(12)

Three-year limitation period governing medical malpractice action against orthopedic surgeon, who allegedly negligently treated broken leg, commenced as of discharge where it was uncontroverted that at that time the patient knew he had been taken out of traction by the surgeon too soon, an event that resulted in bone slipping out of alignment, that premature removal required extended stay in body cast, that convalescence in body cast failed to correct the misalignment, that bones had healed in their misaligned position, with a 30° angulation at fracture site, that despite the surgeon's assurance that he would not limp the patient was limping and continued to experience pain and hyperextension, that leg was deformed and that disability was permanent, notwithstanding surgeon's statement at various time during treatment that the angulation was not an unusual result. Malapanis v. Shirazi (1986) 487 N.E.2d 533, 21 Mass.App.Ct. 378. Limitation Of Actions  95(12)

By the time patient, who used IUD for contraception, had been subject of at least two hospitalizations and hysterectomy, as a matter of law, she was put on inquiry concerning possible claims against doctor who had inserted second IUD, and cause of action accrued at that time. Lear-Heflich v. Schwartz (1985) 485 N.E.2d 692, 21 Mass.App.Ct. 928, review denied 488 N.E.2d 1179, 396 Mass. 1106. Limitation Of Actions  95(12)

Cause of action for medical malpractice does not accrue until plaintiff learns, or reasonably should have learned, that he has been harmed as a result of defendant's conduct. Teller v. Schepens (1980) 411 N.E.2d 464, 381 Mass. 621. Limitation Of Actions  95(12)

Patient's cause of action for medical malpractice in which it was alleged that physician's negligence in performing three eye operations caused plaintiff's blindness did not accrue until patient was discharged from defendant's care and did not accrue at time of the third operation, and thus patient's action was not barred by this section. Teller v. Schepens (1980) 411 N.E.2d 464, 381 Mass. 621. Limitation Of Actions  55(3)

Cause of action for medical malpractice does not "accrue," under this section, until patient learns, or reasonably should have learned that he has been harmed as result of physician's conduct; overruling Pasquale v. Chandler, 350 Mass. 450, 215 N.E.2d 319, and Cappuci v. Barone, 266 Mass. 578, 165 N.E. 653. Parker v. Young (1905) 75 N.E. 98, 188 Mass. 600.

Discovery rule, medical malpractice

Under discovery rule of Massachusetts law, patient who sued physician and manufacturers arising from injection of contrast medium Thorotrast had sufficient notice to discover her claim when neurosurgeon's letter notified patient of theoretical possibility of brain tumor development from contrast residue and, thus, patient's medical malpractice, products liability, and negligent infliction of emotional distress claims were time barred; patient understood import of that letter and, even though patient did not actually see her medical charts, she had notice that there was problem. Lareau v. Page, C.A.1 (Mass.)1994, 39 F.3d 384. Limitation Of Actions  95(4.1); Limitation Of Actions  95(12)

Under discovery rule, date on which mother's claims against obstetrician for negligence and breach of warranty accrued depended on when she knew or had sufficient notice that obstetrical care she received may have caused her child's disabilities. McGuinness v. Cotter (1992) 591 N.E.2d 659, 412 Mass. 617. Limitation Of Actions  95(12)

Discovery rule is applicable to cases involving alleged psychotherapeutic malpractice; under discovery rule action for psychotherapeutic malpractice does not accrue until patient has knowledge or sufficient notice that he was harmed and knowledge or sufficient notice of what cause of harm was. Riley v. Presnell (1991) 565 N.E.2d 780, 409 Mass. 239. Limitation Of Actions  95(12)

Failure of legislature to enact legislative bills that would have amended this section to include some form of "discovery rule" for medical malpractice cases did not necessarily disapprove, in principle, "discovery rule" for purposes of medical malpractice actions. Franklin v. Albert (1980) 411 N.E.2d 458, 381 Mass. 611. Limitation Of Actions  95(12)

Principle underlying "discovery rule," under which cause of action for medical malpractice does not "accrue" for purposes of this section until patient discovers, or reasonably should have discovered, that he has been harmed as result of physician's conduct, applies whether malpractice consists of leaving foreign object in patient's body or of other negligence in diagnosis or treatment of patient. Franklin v. Albert (1980) 411 N.E.2d 458, 381 Mass. 611. Limitation Of Actions  95(12)

Under "discovery rule" providing that cause of action for medical malpractice does not "accrue" for purposes of this section until patient discovers, or reasonably should have discovered, that he has been harmed as result of physician's conduct, patient bears burden of proving such facts taking his case outside impact of c. 260, § 4. Franklin v. Albert (1980) 411 N.E.2d 458, 381 Mass. 611. Limitation Of Actions  195(3)

Tolling of statute, medical malpractice

However real plaintiff's psychological and emotional barriers were to confrontation of psychotherapist, who allegedly abused patient, they could not toll statute of limitations for psychotherapeutic malpractice action when plaintiff knew or should have known that he had been harmed by psychiatrist's wrongful conduct. Riley v. Presnell (1991) 565 N.E.2d 780, 409 Mass. 239. Limitation Of Actions  74(1); Limitation Of Actions  95(12)

There are fiduciary aspects to psychotherapist-patient relationship; failure of psychotherapist to reveal facts relevant to potential malpractice action will toll statute of limitations until plaintiff discovers cause of action. Riley v. Presnell (1991) 565 N.E.2d 780, 409 Mass. 239. Limitation Of Actions  95(12)

Limitations period applicable to medical malpractice claims was not tolled due to physician's out-of-state residence where there was no evidence to indicate that timing of malpractice complaint's filing was in any way affected by a lack of knowledge of physician's whereabouts. Doyle v. Shubs, D.Mass.1989, 717 F.Supp. 946, amendment denied 729 F.Supp. 918, affirmed 905 F.2d 1. Limitation Of Actions  85(2)

Defects of form

Dismissal by federal court of medical malpractice action due to plaintiff's failure to serve physician within period allowed or to show good cause for such failure was not dismissal for matter of form within meaning of catchall clause in this section, where savings statute dealt explicitly with dismissal for insufficient service of process suggesting, at very least, that action would be saved only if there was some acceptable reason for insufficiency of service and there was nothing in record to suggest that plaintiff's eight-month delay in effecting service was due to anything but lack of diligence. Krasnow v. Allen (1990) 562 N.E.2d 1375, 29 Mass.App.Ct. 562, review denied 566 N.E.2d 1131, 409 Mass. 1102. Limitation Of Actions  130(9)