Gloria Sharyon Brown v. Vero Healthcare.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule

23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,

as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties

and, therefore, may not fully address the facts of the case or the panel's

decisional rationale. Moreover, such decisions are not circulated to the entire

court and, therefore, represent only the views of the panel that decided the case.

A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,

2008, may be cited for its persuasive value but, because of the limitations noted

above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260

n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

21-P-949

GLORIA SHARYON BROWN

vs.

VERO HEALTHCARE.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff, Gloria Sharyon Brown, appeals from a

Superior Court judgment dismissing her complaint against the

defendant, Vero Healthcare.1 Although we sympathize with the

plaintiff's loss of her husband, we are constrained to affirm

the dismissal.

We accept the plaintiff's allegations as true for the

purpose of reviewing the allowance of the defendant's motion to

1 The amended complaint named Vero Health and Rehab of Mattapan

as the defendant. In addition, the original summons and

complaint were served upon "Vero Health and Rehab of Mattapan"

in hand to the registered agent of Vero Health II, LLC, which

does business as "Vero Health & Rehab of Mattapan." Because the

result we reach does not turn on the identity of the defendant

or the plaintiff's status as the decedent's personal

representative, and would be the same whether the operative

complaint is the original or the proposed amended complaint, we

deny the defendant's motion to strike the amended complaint from

the record appendix.

dismiss. See Curtis v. Herb Chambers I-95, Inc., 458 Mass. 674,

676 (2011). According to the plaintiff's complaint, between

December 31, 2016, and January 7, 2017, her husband, George

Brown, "received substandard medical care and lacked, because of

under staffing, assistance at the time of his death and this

lack of care aided in his death due also to negligence." As set

forth more fully in the plaintiff's proposed first amended

complaint, the plaintiff's husband, a patient at the defendant's

skilled nursing facility, died at the facility on January 7,

2017, because the defendant's "servants, agents and/or employees

. . . negligently cared for and treated the Plaintiff's

decedent, George Brown, by failing to observe, monitor and

provide the required standard of care and by failing to respond

appropriately to the rapid decrease of blood pressure, pulse,

and oxygen rates."

The plaintiff filed her complaint on February 10, 2020.

The defendant moved to dismiss the complaint, arguing, among

other things, that the complaint was filed beyond the three-year

statute of limitations for malpractice claims. See G. L.

c. 260, § 4. We need not belabor the complex procedural history

of the case. For the purposes of this appeal, it is enough to

state that the plaintiff opposed the motion to dismiss, arguing

that she did not learn the cause of her husband's death until

February 2017, when she received copies of his medical records

2

and notes from the defendant. Accordingly, she argued, by

operation of the discovery rule, her complaint was within the

applicable statutes of limitations. More specifically, in her

memorandum in support of her motion for leave to file a late

opposition to the defendant's motion to dismiss, the plaintiff

stated that she received the records on February 7, 2017; that

by her calculation, the three-year limitations period elapsed on

February 8, 2020; and that because February 8 was a Saturday,

her complaint, filed on Monday, February 10, 2020, was timely.

The motion judge concluded (without addressing the applicability

of the discovery rule) that whether construed as claiming

negligence, medical malpractice, or wrongful death, the

complaint was beyond the three-year statute of limitations

period.

Although judges must "provide a self-represented party with

a meaningful opportunity to present her case by guiding the

proceedings in a neutral but engaged way," CMJ Mgt. Co. v.

Wilkerson, 91 Mass. App. Ct. 276, 283 (2017), and "some leniency

is appropriate" for self-represented litigants, Mmoe v.

Commonwealth, 393 Mass. 617, 620 (1985), they are bound by the

statutes and rules of procedure like any other litigant.

Assuming without deciding that the discovery rule applies,2 and

2 Medical malpractice claims accrue when the plaintiff "(1) knew

or had sufficient notice that she was harmed; and (2) knew or

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accepting the plaintiff's representations that her cause of

action did not accrue until February 7, 2017, but see Cannonball

Fund, Ltd. v. Dutchess Capital Mgt., LLC, 84 Mass. App. Ct. 75,

90 (2013) (in opposing motion to dismiss based on statute of

limitations, plaintiff must present competent materials

supporting entitlement to relief), her complaint was late.

The last day of the statute of limitations period is the

anniversary of the date the cause of action accrued. See

Mahoney v. DeMatteo-Flatiron LLP, 66 Mass. App. Ct. 903, 904

(2006). Under any statute applicable here, the plaintiff's

action was required to be brought "within" three years. G. L.

c. 229, § 2 (wrongful death actions must be brought "within

three years from the date when the deceased's executor or

administrator knew, or in the exercise of reasonable diligence,

should have known of the factual basis for a cause of action");

G. L. c. 260, § 2A (tort claims "shall be commenced only within

three years next after the cause of action accrues"); G. L.

c. 260, § 4 (medical malpractice actions "shall be commenced

had sufficient notice of the cause of the harm." Lindsay v.

Romano, 427 Mass. 771, 774 (1998), quoting McGuinness v. Cotter,

412 Mass. 617, 627 (1992). "In determining whether a party has

sufficient notice of causation, our inquiry is whether, based on

the information available to the plaintiff, a reasonably prudent

person in the plaintiff's position should have discovered the

cause of his or her injuries." McGuinness, supra at 628. The

mere fact that the plaintiff's husband died at a skilled nursing

facility may not have reasonably alerted her to the defendant's

(alleged) role in causing his death.

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only within three years after the cause of action accrues").

Thus, where a plaintiff was injured on June 5, 2001, the three-

year limitations period for his negligence action expired on

June 5, 2004. See Mahoney, supra at 903-904.3

Even if the day of the relevant act or event is not

counted, cf. Mass. R. Civ. P. 6 (a), 365 Mass. 747 (1974),

February 8, 2020, is not within three years of February 7, 2017.

To illustrate, if a paper is required to be filed within thirty

days of November 1, 2022, it would be due on December 1, 2022.

November 1 would not be counted, day one would be November 2,

day two would be November 3, and so on. Day twenty-nine would

be November 30, and day thirty would be December 1. Because the

limitations period for the plaintiff's claims expired at the

latest on February 7, 2020, a Friday, she was required to file

her complaint on or before that date.

Although the complaint was only one day late, one day late

is too late. The plaintiff had three years to file her

complaint and failed to do so. Because the plaintiff's claims

are barred by the statute of limitations, we need not address

3 Because June 5 was a Saturday, his complaint was timely filed

on the next business day, Monday, June 7. See Mahoney, 66 Mass.

App. Ct. at 904.

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the judge's other reasons for dismissing the complaint.

Judgment affirmed.

By the Court (Massing,

Sacks & Walsh, JJ.4),

Clerk

Entered: May 25, 2023.

4 The panelists are listed in order of seniority.

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