If a doctor injures a patient but wants to do everything possible to remediate the problem and to try to lessen the effects of whatever the injury is, does the statute of limitations start to run from the time the injury occurred, from the time the patient discovers the injury, or from the time the continuing treatment related to follow-up care for the injury ends? This is what Parr v Rosenthal , Slip Op No. 12014 (Mass. Sup. Jud. Ct., September 2, 2016) was all about.

The patient was born with a hamartoma on his right calf. It continued to grow, untreated, until it began to affect his gait. When the patient was about 8 years old, the mass was identified by a member of the hospital’s sarcoma group as a desmoid tumor—benign but troublesome. There were a number of surgical options to remove the tumor; however, the patient’s mother was looking for a more “conservative” approach and discovered radiofrequency ablation (RFA). RFA essentially isolates the area by means of a tourniquet and then uses an electric current delivered by wires inserted into the operative area to “burn” or “cook” the target. Like every procedure, it has its advantages and disadvantages.

As it turned out, the doctor who developed RFA was a member of the sarcoma group. He had never used the procedure on this type of tumor, but he agreed to perform it on the boy, who, by this time, was 10 years old. The patient’s mother testified that she was told that it would be same-day surgery and that her son would go home in the afternoon with nothing more than a few Band-Aids. The informed consent form listed the risks as bleeding, infection, nerve damage, and failure to cure. It did not disclose other potential risks such as burns to the skin, blood vessels, or other vital structures in the area and did not mention anything related to the risks associated with using a tourniquet.

During the third of 4 planned ablations, the surgeon—the defendant—noticed that some superficial skin blisters had started to develop. As the first ablations had covered an area greater than what was originally planned for, the final ablation was not performed, and the procedure was discontinued at that point. The patient’s parents were informed that the patient had suffered a superficial burn at the tumor site, but the surgeon expected it to heal without a problem. That was the last interaction between the surgeon and the patient.

The patient required 6 weeks of postoperative rehabilitation at another facility. Although the clinical notes of another doctor in the sarcoma group stated that there seemed to be an improvement regarding nerve function in the area, in actuality, the nerves in the area had been irreparably damaged. Another member of the sarcoma group monitored the continued treatment of the wound, which did not heal, became necrotic, and ultimately required a below-the-knee amputation. Over the next 2 years, the sarcoma group continued to treat the patient for reoccurring infections; however, a second amputation, this one above the knee, was ultimately required. All of this was a result of the complications stemming from the initial RFA procedure. The patient and his parents were never informed of the cause of the burn but only that it was a surgical anomaly. Approximately 4 years after the surgery, the patient’s parents filed a malpractice suit on his behalf.

The defendant—the surgeon—motioned for the case to be dismissed because the law at that time held that any malpractice suit brought on behalf of a minor over the age of 6 had to be brought within 3 years of the date that the cause of action accrued and because he had performed the RFA procedure more than 4 years ago. The plaintiff argued that the statute of limitations was tolled during the time that he was receiving “continuing treatment” for his injury from members of the sarcoma group that the surgeon was part of, and therefore, any window of opportunity for filing such a suit should not begin until the time the continuing treatment was terminated. The suit was dismissed in favor of the defendant. The plaintiff then appealed. The intermediate appellate court reversed and reinstated the claim by adopting the continuous treatment doctrine and its applicability to all defendants. The defendants then filed this appeal to the State Supreme Court. There, the judge noted that Massachusetts had not adopted the continuing treatment doctrine as a tolling provision, but even if it had, it would not apply because the doctor who performed the supposed negligent treatment had completed his ministrations at least 4 years before the suit was filed, and the doctrine could not be imputed to him merely because other members of his group who did not commit malpractice had continued to treat the patient. Here’s why.

In fashioning its decision, the Supreme Court first noted the theory underlying the continuous treatment doctrine by quoting from another case. In that case, the court stated:

The rationale for the doctrine appears to be two-fold. First, a patient who continues a physician-patient relationship impliedly continues to have trust and confidence in the physician, and this trust and confidence puts the patient at a disadvantage to question the doctor’s techniques, and impair the patient’s ability to make an informed judgment as to negligent treatment. Second, where there is a poor medical result from a physician’s treatment or procedure, a patient is entitled to allow the physician a adequate opportunity to remedy or mitigate the poor result without needing to risk interruption of that course of treatment by exploring whether the poor result arose from that physician’s negligence.

… [W]e recognize that a patient is entitled to retain confidence in his or her physician’s ability and good faith while continuing treatment with that physician.… [However], a patient’s actual knowledge that the physician has caused the patient appreciable harm does not necessarily mean that the patient knows that the physician was negligent, because every medical procedure carries with it a risk of complications that may occur naturally without any breach of the standard of care by the physician. (Cits. Omit.)

The court then looked at whether the claim was brought within the window of opportunity afforded by the statute of limitations. The judge instructed the jury:

Ordinarily a personal injury claim must be brought within three years of the date the cause of action accrues or arises. Here, this case was commenced on March 6, 2009. The question is whether the claim was brought within three years after the date on which the cause of action arose. The general rule is that a cause of action accrues on the date of the plaintiff’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….

The question comes down to 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.

Clarifying the phrase “should have known,” the court noted:

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. We do not require that a plaintiff have notice of a breach of a duty before a cause of action may accrue. 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. In essence, under our common law, once a patient knows or reasonably should know that he or she has suffered harm and that the harm was caused by the physician’s conduct, the statute of limitations clock starts to run, and the patient then has three years to discover whether the physician committed a breach of the standard of care and whether the theory of causation is supported by the evidence, and, if so, to commence a civil suit.

The court declined to adopt the plaintiff’s argument that the doctrine should be applied to a specific defendant whose ministrations ceased well after the statute of limitations’ timeframe, for inclusion in the suit ran out merely because he was a member of the group who continued to treat the patient. It noted that such a defendant could only be included if he “…continued to supervise, advise, or consult with other physicians who are treating the patient for the same or a related injury.” In essence, the court adopted the continuous treatment doctrine but declined to apply it to the surgeon merely because he was a member of the group that provided follow-up treatment to the plaintiff. As the surgeon’s activities had concluded well before the statutory 3-year period within which the plaintiff needed to file a claim for malpractice, the court reversed the lower appellate court and dismissed the suit in favor of the defendant.