M.G.L.A. 231 § 60D. Claim by minor against provider of health care; limitations

Notwithstanding the provisions of section seven of chapter two hundred and sixty, any claim by a minor against a health care provider stemming from professional services or health care rendered, whether in contract or tort, based on an alleged act, omission or neglect shall be commenced within three years from the date the cause of action accrues, except that a minor under the full age of six years shall have until his ninth birthday in which the action may be commenced, 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.

Statute of limitations governing medical malpractice actions brought on behalf of minors, which contains both statute of limitations and statute of repose, is not unconstitutionally vague; limitations component provides additional protection to minors for malpractice claims accruing before minor reaches age of six, by allowing actions to be brought until minor reaches age nine, but does not supersede repose provision, which requires all actions to be brought within seven years of negligent act or omission. Plummer v. Gillieson (1998) 692 N.E.2d 528, 44 Mass.App.Ct. 578, review denied 699 N.E.2d 851, 427 Mass. 1107. Constitutional Law  308; Limitation Of Actions  4(2)

Statute of repose governing medical malpractice actions brought on behalf of minors, which required all such actions to be brought within seven years of act or omission giving rise to action, bore reasonable relationship to permissible legislative objective of making affordable health care available by reducing cost of malpractice insurance, and thus did not violate due process guarantees of Federal and State Constitutions. Plummer v. Gillieson (1998) 692 N.E.2d 528, 44 Mass.App.Ct. 578, review denied 699 N.E.2d 851, 427 Mass. 1107. Constitutional Law  308; Limitation Of Actions  4(2)

Statute of repose governing medical malpractice actions brought on behalf of minors, which required such actions to be brought within seven years of act or occurrence in question, did not violate equal protection clause; statute did not create different classifications of minor plaintiffs based on their age, but distinguished between medical malpractice plaintiffs and other tort plaintiffs, which was justified by legitimate governmental goal of reducing cost of medical malpractice insurance. Plummer v. Gillieson (1998) 692 N.E.2d 528, 44 Mass.App.Ct. 578, review denied 699 N.E.2d 851, 427 Mass. 1107. Constitutional Law  249(3); Limitation Of Actions  4(2)

Statute of repose governing medical malpractice actions brought on behalf of minors, which requires all such actions to be brought within seven years of act or occurrence giving rise to action, does not violate right to remedy by recourse to laws which is guaranteed by State Constitution. Plummer v. Gillieson (1998) 692 N.E.2d 528, 44 Mass.App.Ct. 578, review denied 699 N.E.2d 851, 427 Mass. 1107. Constitutional Law  321; Limitation Of Actions  4(2)

Fact that rights of children were affected by statute imposing seven-year statute of repose for medical malpractice actions brought on behalf of minors, except when claims were based on leaving a foreign object in minor's body, did not require higher scrutiny than rational basis test when conducting equal protection analysis; children were not suspect class, and distinction drawn by statute had nothing to do with age of patient involved. Harlfinger v. Martin (2001) 754 N.E.2d 63, 435 Mass. 38. Constitutional Law  249(3)

Statute of repose added by amendment to statute of limitations for medical malpractice actions brought by minors clearly and unambiguously requires such actions to be brought within seven years of act or omission giving rise to action, regardless of whether minor was under six years of age at time of act or omission. Plummer v. Gillieson (1998) 692 N.E.2d 528, 44 Mass.App.Ct. 578, review denied 699 N.E.2d 851, 427 Mass. 1107. Limitation Of Actions  72(1)

Preamendment version of statute, providing that medical malpractice action brought by minor "shall be commenced within three years from the date the cause of action accrues, except that a minor under the full age of six years shall have until his ninth birthday in which the action may be commenced," is statute of limitation and not statute of repose, and ninth birthday limitation therein applies only where minor's cause of action accrued prior to his or her sixth birthday; if alleged malpractice occurs before minor's sixth birthday but cause of action does not accrue until afterward, minor's claim is subject to three-year limitation. McGuinness v. Cotter (1992) 591 N.E.2d 659, 412 Mass. 617. Limitation Of Actions  72(1); Limitation Of Actions  165

Cause of action for medical malpractice does not "accrue," under c. 260, § 4 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. Franklin v. Albert (1980) 411 N.E.2d 458, 381 Mass. 611. Limitation Of Actions  95(12)

Action brought on December 28, 1976 by a minor plaintiff and his father for medical malpractice occurring on February 18, 1971, when the minor was nine years old, was barred by the shortened statute of limitation approved June 19, 1975 and effective January 1, 1976, since sufficient time was allowed, between the passing of the act and the time fixed for the limitation, for the commencement of the action. Cioffi v. Guenther (1977) 370 N.E.2d 1003, 374 Mass. 1. Limitation Of Actions  6(10)

3. Purpose

Legislative purpose in adding repose period to statute of limitations governing medical malpractice claims brought on behalf of minors was the reduction of cost of malpractice insurance for health care professionals, in order to insure affordable health care. Plummer v. Gillieson (1998) 692 N.E.2d 528, 44 Mass.App.Ct. 578, review denied 699 N.E.2d 851, 427 Mass. 1107. Limitation Of Actions  31

4. Mental disabilities

Even if minor's cause of action against obstetrician accrued on date he was diagnosed with cerebral palsy, genuine issue of material fact, as to whether he was suffering from mental disabilities at that time such that he was entitled to protections of tolling statute, precluded summary judgment for obstetrician on basis that medical malpractice claim was untimely. McGuinness v. Cotter (1992) 591 N.E.2d 659, 412 Mass. 617. Judgment  181(7)

Statute of limitations which requires minor's medical malpractice action to be brought within three years from accrual date does not govern minor who is also insane. Boudreau v. Landry (1989) 536 N.E.2d 339, 404 Mass. 528. Limitation Of Actions  74(1)

5. Appointment of representative

"Appointment" within meaning of statute requiring medical malpractice action by minor to be commenced within three years of appointment of administrator, executor, guardian, or other representative did not need to be formal and, therefore, automatically occurred when father brought malpractice suit as next friend. Baker v. Binder (1993) 609 N.E.2d 1240, 34 Mass.App.Ct. 287. Limitation Of Actions  72(1)

Lack of formal court approval of settlement of medical malpractice action brought by patient's father as next friend did not defeat father's automatic appointment commencing three-year statute of limitations applicable to malpractice action by mother as next friend against other defendants. Baker v. Binder (1993) 609 N.E.2d 1240, 34 Mass.App.Ct. 287. Limitation Of Actions  72(1)

Father's appointment as next friend of child in bringing medical malpractice action commenced three-year statute of limitations with respect to action by mother as next friend of child in bringing medical malpractice action against different defendants; before statute of limitations begin to run, mother contacted her attorneys about bringing lawsuit against defendants. Baker v. Binder (1993) 609 N.E.2d 1240, 34 Mass.App.Ct. 287. Limitation Of Actions  72(1)

6. Date of commencement

Under Massachusetts law, statute of repose for medical malpractice actions was triggered on day that radiologist allegedly misread ultrasound of fetus, as day on which allegedly negligent act that was cause of injury was performed, not on day of birth, even though child could not bring malpractice action against radiologist until his birth. Nett ex rel. Nett v. Bellucci, C.A.1 (Mass.) 2001, 269 F.3d 1. Limitation Of Actions  55(3)

In absence of controlling precedent on issue that might determine cause of action, certification was appropriate of issue of whether, if operative date for commencement of action under Massachusetts statute of repose was the date of filing of the motion for leave to amend, policies underlying the statutes of repose required that such filings be in compliance with the local rules of court applicable to the filing of such motions, or whether policies permitted the court in its discretion to excuse non-compliance with the local rules. Nett ex rel. Nett v. Bellucci, C.A.1 (Mass.)2001, 269 F.3d 1. Federal Courts  392

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

7. Certification

In absence of controlling precedent on issue that might determine cause of action, certification was appropriate of issue of Massachusetts law as to whether operative date for commencement of an action for the purpose of statutes of repose was date of filing of a motion and supporting memorandum for leave to amend a complaint to add a party, or the date the amended complaint was filed after leave of court was granted, when leave of court was required by the Rules of Civil Procedure to file an amended complaint. Nett ex rel. Nett v. Bellucci, C.A.1 (Mass.)2001, 269 F.3d 1. Federal Courts  392