Later negligent acts within repose period salvage med-mal case

A medical malpractice claim was not time barred because the plaintiff had also alleged later negligent acts not predicated on acts or omissions outside of the seven-year period set forth in the statute of repose in G.L.c. 260, §4, the Supreme Judicial Court has determined, reversing the conclusion of a trial judge that had been affirmed by the Appeals Court.

The SJC distinguished the case at bar, Bellmar v. Moore, from its 2005 decision in the case Rudenauer v. Zafiropoulos, on which the trial judge and Appeals Court had relied. The Rudenauer case stands for the proposition that “continuing treatment alone does not toll the statute of repose time period,” Justice Scott L. Kafker explained on behalf of the court.

Rudenauer involved a patient who died in 2000 from cancer that allegedly could have been detected and successfully treated had the defendant doctor properly monitored a kidney condition in 1990 and 1991. Although the defendant doctor continued to treat the patient in Rudenauer during the repose period, that continuing treatment alone was deemed insufficient to toll the repose period.

As in Bellmar, the plaintiff in Rudenauer had alleged additional negligence within the seven-year period for which the statute of repose would not extinguish liability. But those separate acts in Rudenauer “were of no effect for other reasons,” Kafker noted.

For the purposes of the statute of repose, the seven-year period commences when there is a “definitely established event” of medical treatment or care that forms the basis of the medical malpractice action, the court said in Rudenauer.

“The Rudenauer court did not suggest, however, that there would necessarily be only one ‘definitely established event’ for a particular illness or injury,” Kafker wrote.

Indeed, when a doctor treats a patient over many years, there may be several “definitely established events,” he said.

“Prior negligence that occurs outside of the repose period does not shield later negligence if such later negligence can be found to cause an injury,” Kafker wrote.

That is even true “if a patient’s treatment happens to involve the same illness, or disease, so long as the malpractice claim is not predicated on an act or omission that took place outside of the repose period,” he added.

In Bellmar, the plaintiff argued that the defendant doctor breached the standard of care by not ordering testing or providing other care at the patient’s subsequent appointments based on how the patient presented at each of those appointments rather than the long-ago act of negligence.

There was a genuine issue of disputed fact as to whether each appointment constituted negligence and thus its own “definitely established event” from which the repose period started to run, the SJC concluded.

The 14-page decision is Lawyers Weekly No. 10-036-25.

Decades in the making

The plaintiff’s attorney, Bruce A. Bierhans of Hyannis, said the SJC’s holding in Bellmar is important because it clarifies an issue that has been murky for two decades: whether the statute of limitations will toll if a plaintiff can establish that, within the repose period, the physician engaged in an independent act of negligence.

A common feature of medical malpractice cases is Daubert hearings that allow one party to challenge the admissibility of the other party’s expert testimony.

Bierhans said he can foresee situations in which there will be Bellmar hearings.

At such a hearing, the plaintiff would have the burden of establishing that a “definitely established event” occurred within the seven-year statute of repose period that is different from the original event that gave rise to the case, Bierhans said.

Plaintiffs’ attorneys now have better guidance as they evaluate cases in which a course of treatment has extended over a long period of time, he noted.

“I envision it having significant application, for example, in failure to diagnose cancer cases, where an initial failure to diagnose occurs, but the patient continues to have symptoms and may not receive treatment or an additional diagnosis during the repose period but dies from cancer outside of the repose period,” he said.

Boston plaintiffs’ attorney David P. McCormack noted that, even as it was siding with the plaintiff, the SJC in Bellmar reinforced both the ongoing vitality of the continued treatment doctrine and the rigidity of the statute of repose, which often operates in ways plaintiffs deem unfair. He credited Bierhans with using the expert testimony to frame the case to get around that rigidity.

The SJC’s decision makes clear that there must be some avenue of negligence separate and apart from the original, time-barred negligent act or omission to get your foot in the door, McCormack added.

It’s a very strong warning to any plaintiffs’ attorney that you better have some ongoing negligence, separate and apart from whatever the initial event may be, and you should be approaching the case and discovery with that in mind.

“It’s a very strong warning to any plaintiffs’ attorney that you better have some ongoing negligence, separate and apart from whatever the initial event may be, and you should be approaching the case and discovery with that in mind,” he said.

Boston plaintiffs’ attorney Elizabeth N. Mulvey agreed.

“It’s good and clearly correct that the court held that an act of negligence more than seven years ago doesn’t cut off everything downstream. To hold otherwise would be legally wrong and dangerous for patients,” she said.

Still, Mulvey said she was concerned the ruling might create an “artificial situation” that treats events that occurred more than seven years ago as if they did not happen.

One reading of the SJC’s decision in Bellmar is that existing knowledge that is more than seven years old cannot be used, which is not how doctors care for patients, Mulvey noted.

“History is important, and if you have a test that you don’t follow up on or a symptom that you were told about, the idea that seven years is gone, you’re not charged with knowledge of that fact or symptom or test result is, first, not what the statute says and, second, bad for patients,” she said.

Mulvey contrasted it to the discovery rule, which encourages doctors to make full disclosures to their patients, because once the patient is aware that they may have a cause of action, the statute of limitations starts to run.

The Bellmar rule, on the other hand, may encourage doctors to remain mum if they happen to notice while reviewing their files a test result that was not followed up on five years earlier.

“You’re encouraged to just keep your mouth shut for two more years, and then you’re never going to be liable,” Mulvey said. “I think that’s terrible policy and terrible for patient health.”

Multiple chronic conditions

By the time he died in June 2016, Harry Bellmar had been a patient of defendant Dr. Robert Moore and his practice for approximately 10 years. Throughout that time, Bellmar suffered from clinical morbid obesity and hypertension. He was also diagnosed with obstructive sleep apnea, and his cholesterol was high periodically.

On Dec. 8, 2006, in preparation for lumbar disc surgery, Bellmar had an EKG at Cape Cod Hospital, which was abnormal, indicating “possible ectopic atrial rhythm.”

At a subsequent appointment less than a week later, Bellmar was cleared for the disc surgery and prescribed anti-hypertensive medication due to high blood pressure.

Though Bellmar saw Moore at least 12 more times over the next decade, Moore never ordered cardiac testing at any of those appointments. Bellmar died on June 12, 2016, and an autopsy indicated that his death was caused by cardiac arrhythmia.

Bellmar’s wife, Lorraine, filed suit against Moore and his practice in Superior Court in December 2017, claiming that Moore’s medical treatment of her husband had been negligent.

During pretrial proceedings, the plaintiff provided the defendants with three reports from her expert, Dr. Richard Pels, which suggested that Moore should have pursued additional cardiac evaluation based on Harry Bellmar’s history of hypertension and morbid obesity, coupled with the irregular 2006 EKG.

After Moore filed a motion to exclude Pels’ testimony, Pels testified at an evidentiary hearing that each of the decedent’s conditions — obesity, hypertension, high cholesterol and obstructive sleep apnea — put him at risk for cardiac disease. Even if Harry Bellmar’s 2006 EKG had been normal, Moore should have performed a follow-up EKG due to those underlying risk factors, Pels opined.

Depending on what that follow-up EKG revealed, the standard of care dictated that Moore should have then either proceeded with additional cardiac testing or referred the decedent to a cardiologist, neither of which was done, Pels added.

When asked on cross-examination whether cardiac testing and care of Harry Bellmar were necessary “based solely” on the abnormal 2006 EKG, Pels responded: “And the absence of [a] repeat EKG.”

The defendants moved for summary judgment based on the statute of repose.

The judge allowed the motion, and the Appeals Court affirmed. The SJC then allowed the plaintiff’s application for further appellate review.

Not so ‘remarkably similar’

The defendants argued that the negligence alleged in Bellmar was “remarkably similar” to that in the 2022 Appeals Court case Moran v. Benson.

In Moran, the Appeals Court concluded that the plaintiff’s claim was based on an MRI indicating that she likely had multiple sclerosis, which had occurred more than seven years before the filing of the claim.

The negligence alleged in Moran was that the defendant doctors did not advise the plaintiff that she needed to be monitored for her progressive multiple sclerosis, nor did they refer her to an MS specialist.

“This was the entirety of her claim, and the treatment within the seven-year period was not alleged to be separate acts of negligence,” the Appeals Court wrote in Moran.

The trial judge in Bellmar concluded that, like in Moran, the only “definitely established event” of negligence was the abnormal EKG in 2006.

But the SJC pointed to Pels’ testimony that, even if the 2006 EKG had been normal, Harry Bellmar’s underlying risk factors warranted a follow-up EKG.

“In other words, regardless of the 2006 EKG, at each of the decedent’s appointments with Dr. Moore, Dr. Moore failed to provide the care warranted by the decedent’s health and risk factors,” Kafker wrote.

The plaintiff had adduced evidence that, at each of her husband’s appointments, Moore failed to meet the standard of care because he failed to provide relevant cardiac treatment for the decedent, given his morbid obesity, hypertension, high cholesterol and obstructive sleep apnea, rather than the abnormal EKG.

Those other “definitely established events” may be actionable as they occurred within the seven-year period before the commencement of the medical malpractice action, the court reiterated.

“The 2006 negligence, we emphasize, cannot shield later acts of negligence,” Kafker wrote.