Medical malpractice suit not barred by statute of repose

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The Supreme Judicial Court has reversed a Superior Court judge’s decision to award summary judgment to the defendants in a medical malpractice action based on the seven-year statute of repose set forth in G.L.c. 260, §4.

Superior Court Judge Gregg J. Pasquale allowed the defendants’ motion for summary judgment, finding that the statute bars the claim because it was based on a negligent response to an abnormal electrocardiogram (EKG) that occurred more than seven years before the filing of the claim.

The SJC disagreed.

“Although the statute of repose bars medical malpractice causes of action based on negligent acts or omissions that occurred more than seven years before the commencement of the action, it does not shield later negligent acts, so long as the medical malpractice claim is not predicated on any acts or omissions that took place more than seven years before the filing of the claim. In the instant case, there are genuine issues of material fact in dispute regarding whether the defendants’ treatment of the decedent within the seven-year period was negligent, without reliance on the negligent response to the abnormal EKG,” Justice Scott L. Kafker wrote for the court.

“Here, the judge concluded that for purposes of the repose period, the only ‘definitely established event’ of negligence was the abnormal EKG in 2006. We disagree,” Kafker wrote.

“The plaintiff … adduced evidence that at each of the decedent’s appointments, [defendant Robert] Moore failed to meet the standard of care because he failed to provide relevant cardiac treatment for the decedent, not because of the abnormal EKG but because, again, of the decedent’s presentation at those appointments. His morbid obesity, hypertension, high cholesterol, and obstructive sleep apnea obviously put him at risk for cardiac disease. Consequently, genuine issues of material fact exist regarding whether there are negligent acts or omissions, that is, ‘definitely established events’ that fall within the repose period, providing the basis of a medical malpractice claim. To reiterate, those additional acts of negligence may be actionable as they occurred within the seven-year time period before the commencement of the medical malpractice action and they are not dependent upon the 2006 EKG. The 2006 negligence, we emphasize, cannot shield later acts of negligence,” he wrote.

The 14-page decision is Bellmar v. Moore, Lawyers Weekly No. 10-036-25.