Firm Blog

“Continuing treatment” exception to statute of limitations in medical malpractice cases decided in Parr v. Rosenthal by Massachusetts Appeals Court

Posted by: Valerie Yarashus

Massachusetts has just recognized a new exception to the statute of limitations in medical malpractice cases, based upon “continuing treatment” with a medical provider or his/her group.  In Parr v. Rosenthal, the Massachusetts Appeals Court held:

“The statute of limitations shall be tolled on a medical malpractice claim so long as the plaintiff receives continuing treatment for the same injury or illness allegedly caused by the original treating physician, even if the plaintiff knew of should have known of the injury and its cause, subject to the limit of the statute of repose.  Whether subsequent care provided by other physicians can be imputed to the original treating physician will be a question for the jury, as will the question whether the patient is continuing treatment in good faith.”

In Massachusetts, the typical deadline for filing suit after an act of medical malpractice is within three years of the date a person knew or should have known that they were harmed by a defendant’s conduct, provided that no other exceptions apply making the time shorter or longer (and there are several exceptions that apply in either direction).   Another deadline which applies in malpractice cases in Massachusetts is a statute of repose, which typically has an outside time limit of 7 years for malpractice cases involving adults.  The statute of repose will bar a lawsuit even if there was no way for the plaintiff to have known they were harmed, and the only exception to that is in a case based upon leaving a foreign object in the body.

This ruling brings Massachusetts in line with a growing number of states across the county.  The Court recognized that it is an important public policy to allow patients to continue treating with the doctor who may know them best and be in a position to fix the problem that he/she created.   As a practical matter, many patients are hesitant to sue their own doctor even when the facts would clearly warrant it.   Different people will take different amounts of time before they are ready to move on and realize that they need to not only file a claim to protect their rights, but also find a new doctor or group to take care of them and their family.

So how would this new “continuing treatment” exception work in future cases?  Let’s take a surgical error case.  The malpractice occurred 3 ½ years ago.   The plaintiff found out about the error the same day.   The surgeon performed corrective surgery a month later, and continued to follow up with the patient and see the patient in office visiting for the following 6 months after that (for a total of 7 months after the negligently performed surgery).   Before Parr v. Rosenthal was decided, if the injured patient tried to file suit after 3 years and a day, it would have been dismissed as time-barred.   Now, this injured patient would have 3 years and 7 months to file suit under these hypothetical facts, assuming that the continuing treatment was done in good faith.

A second hypothetical example is this:  a patient was misdiagnosed with a benign condition when they should have been diagnosed with a slow-growing cancer over a 10 year period.  They were treated by the same physician for the first 9 years, and had no reason to know that they had cancer until 1 year ago.  Here, the 7-year statute of repose would trump the “continuing treatment” exception and bar suit based on the misdiagnosis for that negligence which occurred more than 7 years ago.   However, the patient could still file suit for negligent conduct within 7 years, because the cause of action did not “accrue” until the patient knew or had reason to know of the misdiagnosis 1 year ago.

All cases are different and each is fact-specific; this article is not intended to give legal advice on any particular case.   In addition, there are multiple ways that the statute of limitations can be extended or shortened.  So, if you have any questions about a particular case, consult a qualified Massachusetts attorney.  Attorneys would still be well-advised to use the most conservative date available if they represent a client and are able to file suit without relying on an exception to the statute of limitations for any reason, including this new “continuing treatment” doctrine, to avoid creating any unnecessary defenses at trial.

Add a Comment