The opinion
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13-P-1150 Appeals Court
WILLIAM PARR1 vs. DANIEL ROSENTHAL.
No. 13-P-1150.
Essex. September 8, 2014. - August 7, 2015.
Present: Trainor, Rubin, & Sullivan, JJ.
Limitations, Statute of. Negligence, Doctor. Medical
Malpractice, Statute of limitations.
Civil action commenced in the Superior Court Department on
March 9, 2009.
The case was heard by Thomas R. Murtagh, J., and a motion
for a new trial was heard by him.
Douglas Smith for the plaintiff.
James S. Hamrock, Jr., for the defendant.
TRAINOR, J. The plaintiff brought a medical malpractice
action against the defendant. The jury concluded, pursuant to
the judge's instructions, that the statute of limitations had
run because the plaintiff knew or reasonably should have known
1
By his parents and next friends, Michael and Michelle
Parr.
2
more than three years before filing his complaint that he had
been harmed by the defendant.2,3 Judgment entered for the
defendant, and the plaintiff's subsequent motion for a new trial
was denied. The plaintiff appeals, arguing that it was error to
deny his requested instruction concerning the continuing
treatment doctrine as a mechanism for tolling the statute of
limitations.4 We conclude that the continuing treatment doctrine
is applicable in Massachusetts and is fairly raised by the facts
presented at trial.
Factual background. We review the evidence presented at
trial that is relevant to the requested instruction on the
2
The statute of limitations for a medical malpractice
action requires that the suit "commence[] only within three
years after the cause of action accrues." G. L. c. 260, § 4,
second par., inserted by St. 1986, c. 351, § 30.
3
We were not provided with the special verdict question
jury slip. However, both parties agree that judgment entered
for the defendant due to the jury's finding on the statute of
limitations special verdict question. The judge's instructions
indicate the special verdict question was:
"Did the plaintiffs know or should they reasonably have
known prior [to] March 6th, 2006, . . . that they had been
harmed by the conduct of the defendant?"
4
The plaintiff initially raised an argument that the jury
also should have been instructed on fraudulent concealment and
equitable tolling as mechanisms for tolling the statute of
limitations. However, in his reply brief, the plaintiff
concedes that the fraudulent concealment argument was waived by
failure to object below and indicated that the equitable tolling
doctrine was only pressed as an alternative to the continuing
treatment instruction. As a result, we will not address either
the fraudulent concealment or the equitable tolling argument.
3
continuing treatment doctrine.5 The cause of action arose out of
a radiofrequency ablation (RFA) procedure that was performed by
the defendant on November 4, 2005, and resulted in a burn to and
the eventual amputation of William's6,7 leg.
William was born with a lump in his right leg. Within a
few weeks of William's birth the Parrs were referred to the
sarcoma group at the Massachusetts General Hospital (MGH).8 When
William was about eight years old, Dr. Mark Gephardt performed
surgery on the lesion and determined that it was engulfing most
of the calf muscle and impacting William's nerves and blood
vessels. Dr. Gephardt could remove only a small portion of the
lesion. Pathology later determined that the lesion was a
5
We provide a review of the relevant evidence that was
presented to the jury in order to analyze whether there was a
factual basis for providing the continuing treatment doctrine
instruction. Any mention of a fact here in no way implies that
it was proven by a preponderance of the evidence or that the
jury had to accept or rely upon it.
6
We refer to William, Mr. Parr, and Mrs. Parr to avoid any
confusion between the plaintiff and his parents.
7
The defendant does not dispute that there was evidence to
support the conclusion that "[t]he amputation was required
because of the neurological complications caused by the burn
injury with inability to move the foot, and persistent
infections at the burn wound site."
8
This medical treatment team or group is also referred to
as the connective tissue oncology/radiology conference or the
tumor board.
4
desmoid tumor.9,10 Shortly after the surgery Dr. Gephardt left
MGH and William's primary care was assumed by Dr. David Ebb, a
pediatric oncologist, and Dr. Kevin Raskin, an orthopedic
surgeon.11,12 Both doctors were members of the sarcoma group.
William was followed for many years and is still cared for
by the "sarcoma group in the sarcoma conference." The defendant
has been a member of the sarcoma group since 1978 and continues
to be a member of the group. The sarcoma group is multi-
disciplinary and includes "[o]rthopedic oncologists,
radiologists, pathologists, radiation oncologists, pediatric
oncologists and medical adult oncologists."13 The group meets
9
Desmoid tumors are rare and although they do not
metastasize and are therefore technically benign they do
infiltrate normal tissue and impair bodily function where they
develop.
10
After the surgery, William was also treated with
chemotherapy.
11
Dr. Raskin was not a part of the group when William was
first referred to MGH. Dr. Gephardt later left MGH, and at that
time Dr. Raskin became directly involved in William's care. Dr.
Gephardt has not been involved in William's care since he left
MGH.
12
Mrs. Parr identified Drs. Gephardt and Ebb as William's
treating physicians at MGH. Mr. Parr testified that at the
beginning William was treated by Dr. Ebb, Dr. Raskin, and Dr.
Gephardt.
13
Dr. Ebb described the group as "very large" and a group
that "essentially includes medical physicians who take care of
connective tissue lesions of any description, benign and
malignant. It includes surgeons. It includes radiologists like
Dr. Rosenthal. It includes surgeons like Dr. Raskin. And
5
weekly to discuss both new cases and cases that need to be
revisited. Dr. Raskin explained the function of the group as
follows: "It's a way of avoiding making decisions in silos. We
make them together. We talk about the cases together. Everyone
has input from their own specialty. And ideally at the end of a
conference day or a discussion, we have a plan. It's a way of
coming up with plans." Dr. Raskin also explained that, as part
of the group, he has a "very close interdisciplinary
relationship[]" with the defendant.
At some point prior to November of 2005, Drs. Raskin and
Ebb proposed doing surgery on William's tumor, which at this
point had caused a "foot drop," and surgery was scheduled.
However, Mrs. Parr continued to research other options and she
discussed the possibility of doing RFA treatment with Drs. Ebb
and Raskin. Dr. Raskin asked Dr. Rosenthal after one of the
weekly meetings about the possibility of using RFA on William.
Mrs. Parr testified that Drs. Ebb and Raskin thought RFA was
something to consider and referred the Parrs to the defendant,
who they said "was the best doctor in the business basically.
He was the -- one of the founders of radiofrequency ablation and
had worked at Mass. General for a long time." After that, Mrs.
Parr discussed with the defendant the possibility of treating
radiation physicians as well. And we will discuss children and
adults in those conferences."
6
William with RFA. These discussions occurred by telephone and
through electronic mail messages.14 Mrs. Parr spoke to at least
one other doctor, not affiliated with MGH, about doing the RFA
procedure before it was scheduled with the defendant.
On the day of the RFA procedure, Dr. Ebb came into the
waiting room to find Mrs. and Mr. Parr after the procedure had
been terminated. Dr. Ebb told Mrs. Parr "that there had been a
complication during the procedure." Dr. Ebb said the
complication was "burn above the tumor site." Mrs. Parr was
first made aware that "something had gone wrong" around noon of
the day of the RFA. Mr. Parr testified that either Dr. Ebb or
Dr. Rosenthal told them that there had been a complication and
that they discovered the burn when they moved the surgical
drapes. He also testified that he knew it was related to the
procedure. Neither the doctors nor anyone else from MGH ever
told the Parrs what caused the burn.
Dr. Raskin later spoke to Mrs. Parr, saying that "he was
going to admit Will to the hospital." Mrs. Parr was not told
the cause of the burn or how serious it was, but her
understanding at that time was that William "would recover and
be fine . . . my understanding was that he would be okay." Dr.
14
At some point, it was decided to move forward with the
RFA. Either Dr. Ebb or Dr. Raskin presented the idea of doing
the RFA procedure for William to the tumor board. The surgery
that had been scheduled was postponed.
7
Rosenthal originally described it as a "superficial burn." Dr.
Raskin referred to the burn as a "superficial blister" in his
notes on the day of the RFA procedure. Mr. Parr testified that
after learning of the complication, "we were hopeful it was just
something minor that . . . it would heal up and we would move
forward and ultimately get home soon." Mr. Parr testified that
they did not know how serious the burn was at first and that he
"never knew" how bad the burn was.
After being at MGH for a week, William was sent to
Spaulding Rehabilitation Hospital (Spaulding) "[b]ecause he
still couldn't move he was in so much pain. And he still had a
very large, unhealed burn on the back of his knee. He was
really very unstable." William was at Spaulding for four to
five weeks. Dr. Rosenthal visited William while he was at MGH,
and he reviewed William's records and visited him at Spaulding
while William was recovering from the burn. Dr. Raskin gave Dr.
Rosenthal updates about William's progress because he was
entitled to those updates as "part of the team."
When William returned home after being at Spaulding, he
received in-home physical therapy, and a visiting nurse provided
medical care. The burn did not heal during this process despite
efforts throughout the winter that were directed by Dr. Raskin.
The burn became infected and William was readmitted to MGH in
February of 2006. Dr. Raskin performed debridements of the
8
burn. Amputation was considered, and on March 20, 2006,
William's leg was amputated below the knee.15 The Parrs
commenced this medical malpractice action on March 6, 2009, more
than three years from the date of the RFA procedure but less
than three years from the date of the first amputation.
Jury instructions. The plaintiff requested that the judge
instruct the jury, in relevant part, as follows:
"Further, the law recognizes that, 'a person seeking
professional assistance has a right to repose confidence in
the professional's ability and good faith and realistically
cannot be expected to question and assess the techniques
employed or the manner in which services are rendered,'
while he is still being treated for the same injuries. The
law recognizes that it is not reasonable to expect a
patient to sue her doctor while she is being treated by
him, or doctors with whom he works, while she is being
treated by them for the same injury. The Plaintiff's cause
of action does not accrue until treatment for the injuries
has been terminated."
The judge denied this request because the doctrine had not
been adopted in Massachusetts in the medical malpractice
context, and he concluded that even if the rule had been
adopted, it did not apply in this factual situation. The judge
instead instructed the jury that the cause of action accrues as
follows:
"The general rule is that a cause of action accrues on the
date of the plaintiff's injury; in this case, William's
injury. However, that rule does not apply where the
plaintiff did not know or could not reasonably have known
of the cause of action. . . . [T]he question comes down to
15
A second amputation was performed above the knee on March
12, 2008.
9
whether the plaintiffs knew or should have known that
William Parr had been harmed to an appreciable or not
insignificant extent by Dr. Rosenthal's conduct."
After these instructions, the jury answered "yes" to the special
verdict question: "Did the plaintiffs know or should they
reasonably have known prior [to] March 6th, 2006, . . . that
they had been harmed by the conduct of the defendant?" See note
3, supra.
Standard of review. "We review objections to jury
instructions to determine if there was any error, and, if so,
whether the error affected the substantial rights of the
objecting party." Dos Santos v. Coleta, 465 Mass. 148, 153-154
(2013), quoting from Hopkins v. Medeiros, 48 Mass. App. Ct. 600,
611 (2000).
Discussion. The continuing treatment doctrine would,
generally, toll the running of the statute of limitations during
treatment for the same or related illness or injury continuing
after the alleged act of malpractice but not during the
continuation of a general physician-patient relationship by
itself. Both parties agree that neither the Supreme Judicial
Court nor this court has addressed whether the continuing
treatment doctrine tolls the statute of limitations in medical
malpractice actions in Massachusetts.
The Supreme Judicial Court has, however, adopted an
analogous continuing representation rule that is applicable to
10
legal malpractice claims. See Murphy v. Smith, 411 Mass. 133,
137 (1991) ("the continuing representation doctrine . . . tolls
the statute of limitations in legal malpractice actions where
the attorney in question continues to represent the plaintiff's
interests in the matter in question"). In Murphy, the court
explained that "[t]he doctrine 'recognizes that a person seeking
professional assistance has a right to repose confidence in the
professional's ability and good faith, and realistically cannot
be expected to question and assess the techniques employed or
the manner in which the services are rendered.'" Id. at 137,
quoting from Cantu v. Saint Paul Cos., 401 Mass. 53, 58 (1987).16
The questions at issue here are first, whether the statute
of limitations is tolled during the continuing treatment of the
patient for the same injury upon which the action for
malpractice is based, and second whether, if the patient knew or
reasonably should have known of the appreciable harm resulting
from the act of malpractice, the statute of limitations would
not be tolled by application of the continuing treatment
doctrine.
16
The Supreme Judicial Court clarified in Lyons v. Nutt,
436 Mass. 244, 250 (2002), that the continuing representation
doctrine was not applicable "where the client actually knows
that he suffered appreciable harm as a result of his attorney's
conduct" because once "the client has such knowledge, . . .
there is no innocent reliance which the continued representation
doctrine seeks to protect" (quotation omitted).
11
As to the first question, we can see no reason why a rule
analogous to the continuing representation doctrine should not
apply to medical malpractice claims in the limited situation
where three years since the harm occurred has elapsed but the
seven-year statute of repose17 has not yet barred the action.18
The statute of limitations imposed on medical malpractice claims
uses almost exactly the same language as is applied to legal
malpractice claims. See G. L. c. 260, § 4, first par., inserted
by St. 1981, c. 765 (requiring that legal malpractice claims
"shall be commenced only within three years next after the cause
of action accrues"). Compare G. L. c. 260, § 4, second par.
(requiring that medical malpractice claims "shall be commenced
only within three years after the cause of action accrues").
See also Harlfinger v. Martin, 435 Mass. 38, 49 (2001)
(explaining that the Supreme Judicial Court extended the same
17
General Laws c. 260, § 4, second par., provides, in
addition to the three-year statute of limitations for medical
malpractice actions, a seven-year statute of repose:
"[I]n no event shall any such [malpractice] 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."
18
The Supreme Judicial Court has held that the continuing
treatment rule, as it has been recognized in other
jurisdictions, would have no effect on the statute of repose
because the Massachusetts statute of repose is not subject to
any form of tolling. Rudenauer v. Zafiropoulos, 445 Mass. 353,
357 (2005).
12
discovery rules that apply to other tort claims to medical
malpractice actions in Franklin v. Albert, 381 Mass. 611, 618-
619 [1980]). Moreover, the jurisdictions the Supreme Judicial
Court cited to support the adoption of the continuing
representation doctrine for legal malpractice in Massachusetts
have all adopted a version of the continuing treatment doctrine
for medical malpractice cases.19
19
See Murphy v. Smith, 411 Mass. at 137 (citing to
Louisiana, New York, South Dakota, and Virginia case law);
Carter v. Haygood, 892 So. 2d 1261, 1268, 1271-1272 (La. 2005)
(holding the prescriptive one-year period for medical
malpractice actions can be tolled by continuing treatment, and
analogizing to the legal malpractice continuing representation
rule); Borgia v. New York, 12 N.Y.2d 151, 155 (1962) ("We hold
that at least when the course of treatment which includes the
wrongful acts or omissions has run continuously and is related
to the same original condition or complaint, the 'accrual' comes
only at the end of the treatment"); Greene v. Greene, 56 N.Y.2d
86, 93-94 (1982) (explaining that the continuing treatment
doctrine "was first recognized in personal injury cases
involving medical malpractice" but is applicable to other
professions, including lawyers); Schoenrock v. Tappe, 419 N.W.2d
197, 197 (S.D. 1988) (cited by the Supreme Judicial Court in
Murphy v. Smith, supra, and "extending the continuous treatment
doctrine to legal malpractice actions"); Lewis v. Sanford Med.
Center, 840 N.W.2d 662, 667-668 (S.D. 2013) (holding the
continuing treatment rule in a medical malpractice case was
inapplicable based upon the facts presented); Farley v. Goode,
219 Va. 969, 976 (1979) ("We hold under these facts that when
malpractice is claimed to have occurred during a continuous and
substantially uninterrupted course of examination and treatment
in which a particular illness or condition should have been
diagnosed in the exercise of reasonable care, the date of injury
occurs, the cause of action for that malpractice accrues, and
the statute of limitations commences to run when the improper
course of examination, and treatment if any, for the particular
malady terminates"); Justice v. Natvig, 238 Va. 178, 180 (1989),
quoting from Grubbs v. Rawls, 235 Va. 607, 613 (1988) ("[I]f
there existed a physician-patient relationship where the patient
13
The defendant argues that the continuing treatment
doctrine, even if adopted, would not apply in this case because
Drs. Ebb and Raskin's treatment of William after the RFA
procedure cannot be imputed to the defendant. However, whether
was treated for the same or related ailments over a continuous
and uninterrupted course, then the plaintiff could wait until
the end of that treatment to complain of any negligence which
occurred during that treatment. Thus, within the confines of
Farley [v. Goode, 219 Va. 969 (1979)], Fenton [v. Danaceau, 220
Va. 1 (1979)], and this opinion, Virginia has a true continuing
treatment rule") (emphasis omitted).
New York has codified the continuing treatment rule in
medical malpractice cases. See Williamson v.
PricewaterhouseCoopers LLP, 9 N.Y.3d 1, 8 (2007) ("The
continuous treatment doctrine was first recognized in medical
malpractice cases [see Borgia v. City of N.Y., 12 N.Y.2d 151
(1962)], and is codified in CPLR 214-a. The statute provides
that an action for medical malpractice must be commenced within
2 1/2 years from the date of the 'act, omission or failure
complained of or last treatment where there is continuous
treatment for the same illness, injury or condition which gave
rise to the said act, omission or failure'").
Louisiana has since altered its statute concerning legal
malpractice to include two peremptive periods and, therefore,
tolling by the continuing representation rule is no longer
permitted in the context of legal malpractice. See Jenkins v.
Starns, 85 So. 3d 612, 626 (La. 2012). However, the medical
malpractice period of prescription statute does not include the
same language that ended the use of the continuing
representation rule in Louisiana for legal malpractice. Compare
La. Rev. Stat. Ann. § 9:5628(A) (West 2007) (medical malpractice
prescription statute, which makes no mention of "peremptive
periods"), with La. Rev. Stat. Ann. § 9:5605(B) (West 2007)
(providing that "[t]he one-year and three-year periods of
limitation [for legal malpractice actions] provided in
Subsection A of this Section are peremptive periods within the
meaning of Civil Code Article 3458 and, in accordance with Civil
Code Article 3461, may not be renounced, interrupted, or
suspended").
14
the continuing treatment by the sarcoma group would be imputed
to the defendant presents a factual question for the jury.
The case law in other jurisdictions does not clearly
establish a single rule for when treatment by an associated
doctor can be imputed to the alleged negligent doctor. See
Tolliver v. United States, 831 F. Supp. 558, 560 (S.D. W. Va.
1993) ("Examination of the cases does not disclose a bright-line
rule showing clearly when multiple physicians are to be
considered as providing continuous treatment under the rule.
The cases discussed herein do make clear that a close nexus is
required for a change of doctors not to break the chain").
However, many cases acknowledge that when there is a close
relationship between the doctors, or a patient is considered a
patient of the group, then subsequent treatment by another
doctor may be imputed.20 On retrial, if the jury conclude that
20
See, e.g., Otto v. National Inst. of Health, 815 F.2d
985, 988-989 (4th Cir. 1987) (treatment by doctors outside the
National Institute of Health [NIH] did not disrupt the
continuous treatment by NIH because the "additional treatment
was rendered at the advice and under the direction of the NIH
physicians, to whom the private doctors consistently and
repeatedly deferred"); Taylor v. Phillips, 304 Ark. 285, 286,
289 (1990) (oral surgeon's partner seeing the patient and then
consulting with the oral surgeon and advising that more surgery
was needed did not disrupt the oral surgeon's continuous
treatment of the patient); Offerdahl v. University of Minn.
Hosps. & Clinics, 426 N.W.2d 425, 428 (Minn. 1988) ("We hold,
under these unique facts where the patient sought treatment from
a clinic as a whole rather than an individual physician, the
treatment of the clinic as a whole, rather than that of the
individual physician alleged to have committed the act of
15
William was a group patient of all three doctors and not an
individual patient of Drs. Raskin and Ebb, or that the defendant
was still providing input to Drs. Raskin and Ebb on William's
care as part of the group prior to the amputation, then their
continuing treatment for the burn can be imputed to the
defendant. However, if the jury conclude that the defendant was
malpractice, is relevant for purposes of determining when
treatment terminated and the statute of limitations began to
run"); Watkins v. Fromm, 108 A.D.2d 233, 234 (N.Y. 1985) ("we
conclude that the subsequent treatment by the remaining members
of the medical group may be imputed to the departed physicians
for Statute of Limitations purposes, provided it is established
that the patient was treated as a group patient and the
subsequent treatment was for the original condition and/or
complications resulting from the original condition"). Compare
Grey v. Stamford Health Sys., Inc., 282 Conn. 745, 758 (2007)
(explaining that "the continuous treatment doctrine generally is
inapplicable to providers of isolated and discrete consultative
diagnostic services" for failure to diagnose); Florio v. Cook,
65 A.D.2d 548, 548-549 (N.Y. 1978) (holding that the statute of
limitations had run for a surgeon who performed a thoracic
laminectomy and provided postoperative care because treatment by
the physician he referred care to could not be imputed to the
defendant without a "master-servant or principal-agent
relationship between the two physicians" or a role in the
continued care of the patient); Pierre-Louis v. Ching-Yuan Hwa,
182 A.D.2d 55, 58-59 (N.Y. 1992) ("an agency or other relevant
relationship between the allegedly wrong-doing physician and the
subsequent treating physician" was required; simply working for
the same hospital is not sufficient) (citation omitted);
Liffengren v. Bendt, 612 N.W.2d 629, 634 (S.D. 2000) (continued
treatment by the doctor the patient was referred to for follow-
up care could not be imputed to the defendant doctor without
principal-agent or master-servant relationship, particularly
where the defendant had nothing more to do with patient's care);
Echols v. Keeler, 735 P.2d 730, 732 (Wyo. 1987) (explaining that
continuing care cannot be imputed to the original doctor when
the patient is referred to another doctor and the allegedly
negligent doctor does "not continue as [the patient]'s doctor
nor was he associated with or engaged in assisting the doctors
thereafter treating [the patient]").
16
simply a specialist who provided discrete care and did not
participate in the care of William's burn, then Dr. Raskin's and
Dr. Ebb's care cannot be imputed to the defendant. As a result,
this is a factual question for the jury to consider. See Mule
v. Peloro, 60 A.D.3d 649, 649-650 (N.Y. 2009) (holding that
whether the continuing treatment doctrine applied was an issue
of fact where the plaintiffs provided evidence their decedent
was subsequently treated by other physicians in the same group
for the same condition); Green v. Associated Med. Professionals
of NY, PLLC, 111 A.D.3d 1430, 1432 (N.Y. 2013).
The answer to the second question, whether the discovery
rule limits the application of the continuing treatment
doctrine, requires us to choose between a division in our
Federal and State jurisdictions regarding the primary reason for
applying the continuing treatment doctrine. On the one hand is
"the patient's ability to discover the facts surrounding her
injury, while she is still being treated by the same doctor who
caused the injury in the first place. Courts have stated that
it is not reasonable to expect a patient under the continuing
care of a doctor to be able to recognize that the doctor's
actions may have caused her injuries, because the doctor may
conceal information from the plaintiff, and the patient will be
reluctant to question her doctor while she is still under the
doctor's care." Stephenson v. United States, 147 F. Supp. 2d
17
1106, 1109 (D. N.M. 2001). The primary reason to apply the
doctrine in these jurisdictions is to allow the patient to
discover the injury.21
On the other hand is the pragmatic recognition that courts
want
"to prevent interference in the doctor-patient
relationship, as long as it exists, and want to give the
doctor an opportunity to treat and heal any injury the
doctor may have caused. As the Ulrich[22] opinion states,
some courts feel it is 'absurd' to require the plaintiff to
interrupt corrective treatment in order to immediately
commence legal proceedings. These opinions emphasize the
trust and confidence placed in doctors by their
patients. . . . In other words, these courts do not want
any disruption of the treatment that could end up healing
the patient, thus avoiding a significant problem later and
a lawsuit altogether."
Ibid.
If the emphasis is on the question of discovery, the
application of a continuing treatment doctrine will only provide
some assistance to a plaintiff whose knowledge of the injury and
21
We recognize that some jurisdictions have indicated that
the continuing treatment rule is not needed in a jurisdiction
that has adopted the discovery rule. See Jones v. McDonald, 631
So. 2d 869, 872 (Ala. 1993), and cases cited. However, we do
not find this reasoning persuasive, as the Supreme Judicial
Court adopted the continuing representation rule for legal
malpractice notwithstanding the fact that the discovery rule
already applied. Murphy v. Smith, 411 Mass. at 136-138.
22
Ulrich v. Veterans Admn. Hosp., 853 F.2d 1078, 1080 (2d
Cir. 1988).
18
the cause of the injury is doubtful.23 However, if the focus is
on the benefit of encouraging a physician-patient relationship
and allowing, if not encouraging, the patient to complete the
course of treatment for the injury, it is less relevant whether
the patient knows of the injury or of its cause. Application of
the doctrine will toll the statute of limitations so long as the
patient remains in continuous treatment for the injury by the
same physician or group, or under the general control of that
physician or group, subject to the statute of repose.
Maintaining this relationship will benefit the patient by
allowing and encouraging proper treatment of the injury.
We recognize that actual knowledge of legal malpractice in
Massachusetts typically terminates the application of the
continuing representation exception to the statute of
limitations accruing at discovery. See Lyons v. Nutt, 436 Mass.
244, 249-250 (2002). In adopting this limitation to application
of the continuing representation doctrine, the Supreme Judicial
Court indicated that once a client has actual knowledge that he
23
In Massachusetts, we have already adopted the discovery
rule for the accrual of medical malpractice claims. See
Franklin v. Albert, 381 Mass. at 612 ("a cause of action for
medical malpractice does not 'accrue' under G. L. c. 260, § 4,
until a patient learns, or reasonably should have learned, that
he has been harmed as a result of a defendant's conduct"). As a
result, application of this version of the doctrine would not
alter a determination that the statute of limitations had
passed. Also, as previously discussed, we adopted the
continuing representation rule despite having a discovery rule
applicable to such actions. See note 21, supra.
19
has suffered appreciable harm, there is no reason to apply the
rule because "then there is no innocent reliance which the
continu[ing] representation doctrine seeks to protect." Id. at
250 (quotation omitted).
Unlike continuing legal representation, however, in the
medical malpractice context there is a compelling reason to
continue to protect the physician-patient relationship even
after the plaintiff arguably has actual knowledge. The patient
could in "good faith . . . know[] that the physician has
rendered poor treatment, but continue[] treatment in an effort
to allow the physician to correct any consequences of the poor
treatment." Harrison v. Valentini, 184 S.W.3d 521, 525 (Ky.
2005). See ibid. (further explaining that the plaintiff must be
seeking continued care in good faith). See also Litsey v.
Allen, 371 S.W.3d 786, 789 (Ky. Ct. App. 2012) (limiting the
situations where the statute of limitations is tolled and the
plaintiff has actual knowledge to those situations where there
is a showing that the plaintiff is relying on the doctor to
"correct the consequences of poor treatment").
Here, the Parrs argue that while they were aware of a
"complication" as a result of the RFA, they were led to believe,
as the doctors also believed, that the burn was superficial and
that William would be fine. The Parrs maintain that they placed
their trust and confidence in the treatment plan proposed by
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Drs. Ebb and Raskin, specifically, and the sarcoma group
generally. We conclude that actual knowledge should not bar
application of the continuing treatment doctrine so long as the
patient is continuing treatment in good faith and not solely to
allow more time to develop their malpractice case.
We will therefore adopt the continuing treatment doctrine
as it emphasizes maintenance of the physician-patient
relationship.
Conclusion. 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 or 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. On the facts presented here, the judge's refusal to
instruct the jury on the continuing treatment doctrine
was error affecting the plaintiff's substantial rights. We,
therefore, reverse the judgment, set aside the verdict, and
reverse the order denying the motion for new trial. We remand
the case to the Superior Court for a new trial with directions
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to the trial judge to instruct the jury in a manner consistent
with this opinion.
So ordered.