Parr v. Rosenthal

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SJC-12014

MICHAEL PARR1 & another2 vs. DANIEL ROSENTHAL.

Essex. April 5, 2016. - September 2, 2016.

Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, &
Hines, JJ.3

Limitations, Statute of. Medical Malpractice, Statute of
limitations. Negligence, Doctor, Medical malpractice.

Civil action commenced in the Superior Court Department on
March 9, 2009.

The case was tried before Thomas R. Murtaugh, J., and a
motion for a new trial was heard by him.

After review by the Appeals Court, the Supreme Judicial
Court granted leave to obtain further appellate review.

Myles W. McDonough (James S. Hamrock, Jr., with him) for
the defendant.
David J. Gallagher for the plaintiffs.

1
As parent and next friend of William Parr.
2
Michele Parr, as parent and next friend of William Parr.
3
Justice Cordy participated in the deliberation on this
case and authored his separate opinion prior to his retirement.
Justices Spina and Duffly participated in the deliberation on
this case prior to their retirements.
 2

Annette Gonthier Kiely, Adam R. Satin, & Thomas R. Murphy,
for Massachusetts Academy of Trial Attorneys, amicus curiae,
submitted a brief.
John J. Barter, for Professional Liability Foundation,
Ltd., amicus curiae, submitted a brief.

GANTS, C.J. The plaintiffs commenced this medical

malpractice action against the defendant in the Superior Court

for his alleged negligence in connection with a "radio frequency

ablation" (RFA) procedure he performed on the leg of their minor

son, which caused severe burning and eventually resulted in the

amputation of the child's leg. The jury did not reach the issue

of negligence because they found that, more than three years

before the plaintiffs filed the action, they knew or reasonably

should have known that the child had been harmed by the

defendant's conduct, so the action was barred by the statute of

limitations for medical malpractice claims.

The plaintiffs contend that the jury should have been

instructed on the so-called "continuing treatment doctrine"

applicable to medical malpractice claims, a doctrine that

heretofore has not been recognized under Massachusetts law.

Generally speaking, the doctrine states that a cause of action

does not accrue, and therefore the statute of limitations clock

does not begin to run, for medical malpractice claims during the

period that an allegedly negligent physician continues to treat

the patient for the same or a related condition. See, e.g.,
 3

Borgia v. New York, 12 N.Y.2d 151, 156-157 (1962). We now

recognize the doctrine under Massachusetts law and hold that the

statute of limitations for a medical malpractice claim generally

does not begin to run while the plaintiff and the defendant

physician continue to have a doctor-patient relationship and the

plaintiff continues to receive treatment from the physician for

the same or a related condition. We also hold that the

continuing treatment exception to the discovery rule terminates

once a patient (or the parent or guardian of a minor patient)

learns that the physician's negligence was the cause of his or

her injury. We further hold that, once the allegedly negligent

physician no longer has any role in treating the plaintiff, the

continuing treatment doctrine does not apply even if the

physician had at one time been part of the same "treatment team"

as the physicians who continue to provide care. Here, where the

jury found that the plaintiffs knew or reasonably should have

known more than three years before commencing suit that they had

been harmed by the conduct of the defendant, and where the

defendant's participation in treating the plaintiff ended more

than three years before the suit was filed, the cause of action

accrued more than three years before the action was commenced

and therefore was not timely under the statute of limitations.

We thus affirm the judgment in favor of the defendant.4

4
We acknowledge the amicus briefs submitted by the
 4

Background. We recite the facts in the light most

favorable to the plaintiffs. See Lipchitz v. Raytheon Co., 434

Mass. 493, 499 (2001). William Parr was born on September 3,

1994.5 At birth, he had a large lump at the back of his right

calf. Within a few weeks, he was taken by his parents, Michele

Parr and Michael Parr, to Massachusetts General Hospital (MGH),

where he was referred to the "sarcoma group" for imaging studies

and a biopsy. The sarcoma group is a team of orthopedic

surgeons, general surgeons, radiation oncologists, medical

oncologists, and others who treat tumors of the connective

tissues, including bones, muscles, fat, nerves, and other

tissues. The sarcoma group works on an interdisciplinary model.

The team members meet twice weekly and have "very close

interdisciplinary relationships."

Initially, William's lump was diagnosed by the sarcoma

group as a "hamartoma."6 By January, 2003, when William was

eight years old, the size of the lump had increased, causing

Massachusetts Academy of Trial Attorneys and the Professional
Liability Foundation, Ltd.
5
Because the child and his parents have the same last name,
we refer to each by his or her first name.
6
A "hamartoma" is a benign tumor-like malformation
resulting from faulty development in an organ and composed of an
abnormal mixture of tissue elements that develop and grow at the
same rate as normal elements but are not likely to compress
adjacent tissue. See Stedman's Medical Dictionary 849 (28th ed.
2006).
 5

William occasionally to limp. At that time, Dr. Mark Gebhardt,

a member of the sarcoma group at MGH, performed a biopsy in

which he removed pieces of the lump for the pathologist to

examine. Gebhardt determined that the lump was engulfing much

of William's calf muscle and was having an impact on his nerves

and blood vessels. At this time, it was determined that the

lump was a "desmoid tumor." Desmoid tumors are relatively rare,

benign tumors but can grow in such a way as to infiltrate normal

tissue and impair bodily functions.

Soon after the biopsy, Gebhardt left MGH. William's care

was assumed by Dr. David Ebb, a pediatric oncologist, and Dr.

Kevin Raskin, an orthopedic surgeon, both of whom were on the

staff at MGH and were members of the sarcoma group. At some

point prior to November, 2005, Raskin and Ebb proposed and

scheduled a surgery on William's tumor, which at this point had

caused abnormality in his gait. Meanwhile, Michele continued to

research other options, and she discussed the possibility of RFA

treatment with Ebb and Raskin.7 After one of the meetings of the

7
Radio frequency ablation (RFA) involves the insertion of a
long probe with expandable heating tines that generate high
frequency electrical current to burn or "cook" the target, here
the tumor. There are a number of limitations to the procedure:
(1) the "ablation" or burn zone is constrained by the size of
the device used and the blood flow to the area, limiting the
ablation to the spherical area immediately surrounding the
tines; (2) the RFA procedure does not distinguish between a
targeted tumor and other healthy, critical structures -- it
burns everything in its reach; and (3) it is impossible to
 6

sarcoma group, Raskin and Ebb approached the defendant, Dr.

Daniel Rosenthal, about the possibility of performing RFA on

William's desmoid tumor. Rosenthal was a board certified

radiologist on the staff at MGH and had been a member of the

sarcoma group since 1978. He "invented" RFA, meaning that he

was the first physician to use RFA to treat a tumor, and was a

recognized leader in the field.8 Through the sarcoma group, he

was generally familiar with William's case. Raskin and Ebb then

put Michele in touch with Rosenthal. They told Michele that

Rosenthal "was the best doctor in the business basically. He

was . . . one of the founders of radiofrequency ablation and had

worked at [MGH] for a long time." Rosenthal eventually agreed

predict precisely the extent of the zone of ablation. The
procedure involves the use of a tourniquet to limit the blood
flow into the area of the procedure.
8
Dr. David Ebb testified that he and Dr. Kevin Raskin
"regularly worked with [Dr. Daniel Rosenthal] in the context of
[their] delivering care to patients . . . and were both well
aware that Dr. Rosenthal had been one of the pioneers in
applying this technique . . . and felt that he was the best
resource [they] had with whom to confer regarding this option in
[William's] case." Raskin testified that, when Michele first
inquired about the possibility of treating William with RFA, he
told her, in effect, "[I]t turns out we have . . . the world's
expert here at MGH who does radiofrequency ablation and maybe we
can come up with a plan to use radiofrequency ablation to treat
this tumor." Raskin further testified that he knew Rosenthal
"as part of [their] group at MGH." He continued, "[W]e have
. . . very close interdisciplinary relationships. I mean, I
can't function as an orthopedic oncologist without . . . Dr.
Rosenthal, the radiology group helping me interpret imaging, or
the pathologists helping me interpret slides." He described his
relationship with Rosenthal and the group as a "very close, very
active relationship."
 7

to perform the procedure and it was presented and approved at

subsequent sarcoma group meetings. Rosenthal had never

performed RFA on a desmoid tumor before performing the procedure

on William, and as of the date of trial had not performed

another RFA on a desmoid tumor.

Prior to the procedure, Rosenthal told Michele that the

procedure was reasonable and could help William. Michele

testified that Rosenthal told her that RFA could "kill" the

tumor, but he did not explain any risks of the procedure.

Rosenthal said the procedure would be a day surgery, that

William would come out with "band-aids" at the sites where the

probe had gone in, and that he would be home by the afternoon.

Michael brought William to MGH on the morning of November

4, 2005, for the RFA procedure, and Michele arrived soon

thereafter. Rosenthal briefly showed Michael and William a

drawing describing the procedure, demonstrating the location of

the tumor and other areas he was going to treat. Michael signed

a consent form, which listed the risks of the procedure,

including bleeding, infection, nerve damage, and failure to

cure. The form did not disclose any risk of burns to the skin,

blood vessels, or other vital structures. Moreover, the risks

associated with the use of a tourniquet were not mentioned.

Rosenthal completed the first three of his planned four

ablations when he noticed what he described as "superficial skin
 8

blisters" in the area behind William's knee. At that point,

despite not having completed all of the planned ablations,

Rosenthal realized that he had already burned more than the

entire planned treatment area. On seeing the burned area behind

William's knee, Rosenthal then stopped the procedure and called

two other sarcoma group members, Ebb and Raskin, to the

operating room. A decision was made to discontinue the

procedure.

Ebb explained to Michael and Michele that there had been a

complication during the procedure, and that William had suffered

a burn above the tumor site. Michele testified that she was not

told the cause of the burn or how serious it was, but was told

that William "would recover and be fine." Michael testified

that he and Michele did not know how serious the burn was at

first and that he "never knew" how bad the burn was. Rosenthal

originally described it to them as a "superficial burn." Raskin

referred to the burn as a "superficial blister" in his notes on

the day of the RFA procedure.

William was admitted to MGH for one week after the RFA

procedure and was then transferred to Spaulding Rehabilitation

Hospital (Spaulding) for an additional five weeks. Rosenthal

visited William every day during his week-long stay at MGH and

several more times at Spaulding. Rosenthal's last note in

William's medical file, made during a visit on November 7, 2005,
 9

states that there was "clear improvement in his nerve function."

In fact, by that time, the nerves had been irreparably damaged

from the burn. The burned area ultimately grew to full

thickness, creating a very foul smelling, necrotic blackened

hole in the back of William's knee that spanned the entire area

of the knee from medial to lateral. The nerves were destroyed.

When William returned home from Spaulding, he received in-

home physical therapy, and a visiting nurse provided medical

care. He also continued to receive care from the sarcoma group.

The burn did not heal during this period despite efforts

throughout the winter that were directed by Raskin. The burn

eventually became infected, and William was readmitted to MGH in

February, 2006. Raskin performed debridements of the burn. On

March 19, 2006, after the seventh debridement, it became clear

that William's leg could not be saved, and his parents were told

that amputation below the knee was necessary. On March 20,

2006, William's leg was amputated below the knee.

About two years later, a second amputation, this one above

the knee, became necessary because of continued infections, and

because there was insufficient muscle preserved to enable use of

a prosthesis or to make the knee functional. Thus, on March 12,

2008, Raskin performed an amputation above the knee on William's

right leg. According to Rosenthal's testimony at trial, the

need for the amputations was a direct result of the complication
 10

that occurred during the RFA procedure. Neither Ebb, Raskin,

nor Rosenthal at any time described to the Parrs what had caused

the burn and the resulting injuries. Michael was told that it

was simply an "anomaly." The Parrs did not know what had

happened, despite asking repeatedly. As Michael testified, "We

trusted them, we worked with them and we did not know."

Michele and Michael, as parents and next friends of

William, filed a civil complaint in the Superior Court on March

9, 2009, alleging malpractice by Rosenthal with respect to the

RFA procedure performed by him on November 4, 2005.9 The case

proceeded to a jury trial. Because, under G. L. c. 231, § 60D,

a medical malpractice action brought on behalf of a minor who is

at least six years old must "be commenced within three years

from the date the cause of action accrues," the defendant argued

that he was entitled to judgment because the action was not

timely filed. At the charge conference and in his proposed jury

instructions, the plaintiffs' counsel argued that the statute of

limitations was tolled while William's treatment was continuing.

Relying on the continuing treatment doctrine, he argued that a

cause of action for medical malpractice does not accrue until

9
The action was brought solely on behalf of William;
neither Michele nor Michael claimed loss of consortium.
 11

treatment of a plaintiff by a defendant doctor, or doctors with

whom he works, has terminated.10

The judge declined to give such an instruction. He

correctly stated that Massachusetts had not yet recognized the

continuing treatment doctrine. He further stated that he "would

suggest" that Massachusetts would not "adopt that theory," and

that, in any event, the doctrine would not apply to the facts of

this case. The judge said the defendant "rendered a very

specific treatment" and "[t]hat was it"; "[h]e was not involved

in the treatment of William after that." In response to

counsel's argument that the cause of action did not accrue while

the plaintiff was being treated by the "treatment team" of which

the defendant was a member, the judge noted that no

Massachusetts case had taken that position in a medical

malpractice case.

10
The jury instruction proposed by the plaintiffs, which
quoted the legal malpractice case of Murphy v. Smith, 411 Mass.
133, 137 (1991), quoting Greene v. Greene, 56 N.Y.2d 86, 94
(1982), stated:

"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 [p]laintiff's
cause of action does not accrue until treatment for the
injuries has been terminated." (Footnotes omitted.)
 12

As to the question whether the claim was timely brought

within the statute of limitations, the judge instructed the jury

as follows:

"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.[11] 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[,] 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 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."

The judge also explained the meaning of "should have known"

in this context:

"An action for medical malpractice accrues when a
reasonably prudent person in the plaintiff's position
reacting to any suspicious circumstances for which
they might have been aware should have discovered that
his medical care given by the physician may have
caused . . . William appreciable or not insignificant
injury or harm. Certainty of causation is not
required. Rather, notice of likely cause is
sufficient to start the statute running[,] imposing on
the potential litigant the duty to discover from
legal, scientific and medical communities whether a
theory of causation supports a legal claim."

11
The complaint was actually filed on March 9, 2009, but no
12
counsel objected to the reference to March 6. The
limitation and repose periods for medical malpractice claims
brought on behalf of adults, established by G. L. c. 260, § 4,
are essentially identical. Section 4 provides in relevant part:
 13

Plaintiffs' counsel timely objected to the judge's decision not

to give a continuing treatment instruction regarding the statute

of limitations.

The jury answered "yes" to the first 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?" Because they answered

"yes" to this question, they did not reach the other questions,

including whether the defendant was negligent and, if so,

whether his negligence was a substantial contributing factor in

causing William's injury. Judgment entered for the defendant.

The plaintiffs moved for a new trial, claiming that the judge

erred by failing to furnish the jury with the continuing

treatment instruction. The judge denied the motion. The

plaintiffs appealed from the judge's decision not to give the

continuing treatment instruction, and from the denial of their

motion for a new trial.

The Appeals Court reversed the judgment and remanded the

case for a new trial. Parr v. Rosenthal, 87 Mass. App. Ct. 787

(2015). Relying by analogy on this court's adoption of the

"continuing representation" doctrine in legal malpractice cases,

see, e.g., Murphy v. Smith, 411 Mass. 133, 137 (1991), the

Appeals Court recognized the "continuing treatment" doctrine in

medical malpractice cases. The court held that the limitations
 14

period does not begin to run during the continuing treatment of

a patient for the same injury on which the action for medical

malpractice is based. See Parr, supra at 788, 792-793. The

court also declared that the continuing treatment 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." Id. at 797.

In cases alleging legal malpractice, the statute of

limitations, although tolled under the continuing representation

doctrine, nevertheless begins to run once a client acquires

actual knowledge that he or she has suffered appreciable harm as

a result of the attorney's conduct. See, e.g., Lyons v. Nutt,

436 Mass. 244, 249-250 (2002). The Appeals Court, however, held

that in medical malpractice cases "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." Parr,

supra at 798. We granted the defendant's application for

further appellate review.

Discussion. To state a claim for medical malpractice, a

plaintiff must demonstrate that (1) the plaintiff suffered harm;

(2) the harm was caused by the defendant physician's conduct;

and (3) the defendant physician was negligent, which in medical
 15

malpractice cases means that the physician committed a breach of

the "standard of care and skill of the average member of the

profession" practicing in his or her specialty. See Bradford v.

Baystate Med. Ctr., 415 Mass. 202, 206-208 (1993), quoting Brune

v. Belinkoff, 354 Mass. 102, 109 (1968). Where a defendant

raises the statute of limitations as an affirmative defense, the

plaintiff also bears the burden of proving that the action was

timely commenced. See Franklin v. Albert, 381 Mass. 611, 619

(1980). The limitation and repose periods for medical

malpractice claims brought on behalf of minors over the age of

six are established by G. L. c. 231, § 60D, which provides in

relevant part:

"[A]ny claim by a minor against a health care
provider stemming from professional services or health
care rendered, whether in contract or tort, based on
an alleged act, omission or neglect shall be commenced
within three years from the date the cause of action
accrues . . . , but in no event shall such 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."12

12
The limitation and repose periods for medical malpractice
claims brought on behalf of adults, established by G. L. c. 260,
§ 4, are essentially identical. Section 4 provides in relevant
part:

"Actions of contract or tort for malpractice,
error or mistake against physicians [and] surgeons . .
. shall be commenced only within three years after the
cause of action accrues, but in no event shall any
such action be commenced more than seven years after
occurrence of the act or omission which is the alleged
 16

The statute of repose is not at issue in this case. The

plaintiffs' claim clearly was brought within seven years of

William's RFA treatment. The defendant does not claim

otherwise. The key question is whether the claim was timely

brought within the statute of limitations, i.e., within three

years of when the cause of action accrued.

A statute of limitations typically prescribes the time

period when an action must be commenced after the cause of

action "accrues." The statute sets the limitations period, but

in the absence of explicit legislative direction, it is our

common law that determines when a cause of action accrues, and

hence when the limitations period actually begins to run. See

Franklin, 381 Mass. at 617 ("Absent explicit legislative

direction, the determination of when a cause of action accrues,

causing the statute of limitations to run, has long been the

product of judicial interpretation in this Commonwealth"). In

Franklin, supra at 619, we held that the discovery rule applies

to the statute of limitations for medical malpractice claims.13

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."
13
By the time we decided Franklin v. Albert, 381 Mass. 611,
619 (1980), we had already applied the discovery rule to other
causes of action. See, e.g., Friedman v. Jablonski, 371 Mass.
482, 485 (1976) (fraudulent misrepresentations in sale of real
estate); Hendrickson v. Sears, 365 Mass. 83, 83-84 (1974) (legal
malpractice).
 17

Under the discovery rule, medical malpractice claims "accrue"

"when the plaintiff learns, or reasonably should have learned,

that he has been harmed by the defendant's conduct." Id. "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." Lindsay v. Romano, 427 Mass. 771, 774 (1998),

quoting McGuinness v. Cotter, 412 Mass. 617, 628 (1992). "We do

not require that a plaintiff have notice of a breach of a duty

before a cause of action may accrue . . . ." Bowen v. Eli Lilly

& Co., 408 Mass. 204, 208 (1990). See Lindsay, supra ("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. See Bowen, supra at 208,

quoting Fidler v. Eastman Kodak Co., 714 F.2d 192, 199 (1st Cir.
 18

1983) ("Thus on notice, the potential litigant has the duty to

discover from the legal, scientific, and medical communities

whether the theory of causation is supportable and whether it

supports a legal claim").

1. Continuing treatment doctrine. The plaintiffs argue

that Massachusetts should recognize the continuing treatment

doctrine, which provides that a cause of action does not accrue

while the patient is continuing to receive treatment for the

same or related injury or illness from the same physician who

allegedly caused the patient harm. See Otto v. National Inst.

of Health, 815 F.2d 985, 988 (4th Cir. 1987), and cases cited

(in claims brought under Federal Tort Claims Act, "where there

has been a course of continuous medical treatment, a claim may

not accrue until the end of that course of treatment, if the

treatment has been for the same illness or injury out of which

the claim for medical malpractice arose"). See also Borgia, 12

N.Y.2d at 155-156. 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 put "the patient at

a disadvantage to question the doctor's techniques," Barrella v.

Richmond Mem. Hosp., 88 A.D.2d 379, 384 (N.Y. 1982), and impair

"the patient's ability to make an informed judgment as to

negligent treatment." Harrison v. Valentini, 184 S.W.3d 521,
 19

525 (Ky. 2005). See Otto, supra ("The continuous treatment

doctrine is based on a patient's right to place trust and

confidence in his physician. . . . [T]he patient is excused

from challenging the quality of care being rendered until the

confidential relationship terminates"). Second, where there is

a poor medical result from a physician's treatment or procedure,

a patient is entitled to allow the physician an 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. See id. ("the doctrine permits a wronged patient to

benefit from his physician's corrective efforts without the

disruption of a malpractice action"); Barrella, supra (patient

is entitled "to rely upon the doctor's professional skill

without the necessity of interrupting a continuing course of

treatment by instituting suit").

In Murphy v. Smith, 411 Mass. 133, 137 (1991), we adopted

an analogous "continuing representation" rule for legal

malpractice claims. The plaintiffs in that case had received a

letter from their neighbors' attorney in 1983, informing them

that they did not have good title to property they had

purchased. Id. at 135. The plaintiffs then contacted the

defendant, the bank's attorney who had certified good record

title when they purchased the property. Id. The defendant
 20

assured them that the letter "did not present a cause for

concern and that he would take care of it." Id. at 137. The

court determined that the defendant's legal representation of

the plaintiffs began with this assurance, and ended in 1985,

when they retained a new attorney. Id. at 135, 137. They

commenced a legal malpractice action against the defendant in

1987. Id. at 135. If the discovery rule applied without

exception, the three-year statute of limitations would have

begun to run at the time the plaintiffs received the letter from

their neighbors' attorney, i.e., when they were put on notice of

the alleged defect in their title, and their malpractice claim

against the defendant would have been time barred.

The court in Murphy adopted the continuing representation

doctrine as an exception to the discovery rule, holding that the

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." Id. at

137. The statute of limitations in that case thus did not begin

to run until 1985, when the defendant's representation of the

plaintiffs ended. The continuing representation 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
 21

services are rendered." Id., quoting Cantu v. Saint Paul Cos.,

401 Mass. 53, 58 (1987).

The reasoning we embraced in Murphy, supra, in adopting the

continuing representation exception to the discovery rule in

legal malpractice claims also justifies the adoption of a

continuing treatment exception to the discovery rule in medical

malpractice claims. Under the discovery rule, we ordinarily

start the clock when the patient knows or has reason to know

that he or she has been harmed by the physician's conduct; we

consider such knowledge or reason to know sufficient to trigger

the patient's "duty to discover" within the three-year

limitations period whether the physician committed a breach of

the standard of care and was the legal cause of the patient's

injury. See Bowen, 408 Mass. at 208-210. However, while that

physician continues to treat the patient for the same or related

injury or illness, the physician's patient, like an attorney's

client, "realistically cannot be expected to question and assess

the techniques employed or the manner in which the services are

rendered." Murphy, supra at 137. Just as we recognize that a

represented party is entitled to retain confidence in his or her

legal counsel's "ability and good faith" while the

representation continues, so, too, do we recognize that a

patient is entitled to retain confidence in his or her

physician's ability and good faith while continuing treatment
 22

with that physician. The legal client is disadvantaged in

learning whether his or her attorney has committed a breach of

the standard of care while that attorney continues to represent

the client, and so, too, is a patient disadvantaged in learning

whether a physician has committed a breach of the standard of

care while the physician continues to treat the patient. And

just as a wronged client is permitted to benefit from his or her

attorney's efforts to correct a problem without the disruption

of exploring the viability of a legal malpractice action, so,

too, is a patient permitted that same benefit without the

disruption of exploring the viability of a medical malpractice

action.

Moreover, there is no "explicit legislative direction" that

precludes us from recognizing a continuing treatment exception

in determining when a medical malpractice cause of action

accrues. See Franklin, 381 Mass. at 617. As the Appeals Court

correctly noted, the Legislature used almost identical language

to describe the limitations period for medical malpractice

claims and for legal malpractice claims. See Parr, 87 Mass.

App. Ct. at 793. Compare G. L. c. 231, § 60D (medical

malpractice claim by minor who is at least six years old "shall

be commenced within three years from the date the cause of

action accrues"), and G. L. c. 260, § 4, second par. (medical

malpractice claim by adult "shall be commenced only within three
 23

years after the cause of action accrues"), with G. L. c. 260,

§ 4, first par. (legal malpractice claim "shall be commenced

only within three years next after the cause of action

accrues"). See generally Harlfinger v. Martin, 435 Mass. 38, 49

(2001) (noting that discovery rule principles applicable to

other types of tort claims also applied to medical malpractice

claims). The only differences in the language of the statutes

are slight and insignificant. Given the nearly identical

wording of the provisions, there is no reason to conclude that

our interpretation of when a cause of action "accrues" in legal

malpractice cases should not have its analog in medical

malpractice claims.

The defendant argues that the adoption of the continuing

treatment doctrine would constitute "improper judicial

legislation," urging us to infer from the absence of legislation

on the doctrine that the Legislature has rejected it. The

defendant points to nothing in the record of the Legislature,

however, that suggests that its silence on the subject reflects

a conscious choice to reject the continuing treatment doctrine.

We decline to interpret the absence of legislative action as an

affirmative rejection of the doctrine that bars us from adopting

the continuing treatment doctrine as a common-law interpretation
 24

of when a cause of action "accrues" in a medical malpractice

case.14

Our adoption of the continuing treatment doctrine does not

affect the statute of repose that applies to medical malpractice

claims, which provides that "in no event shall such 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." G. L. c. 231, § 60D.

The effect of a statute of repose "is to place an absolute time

limit on the liability of those within [its] protection and to

abolish a plaintiff's cause of action thereafter, even if the

plaintiff's injury does not occur, or is not discovered, until

after the statute's time limit has expired" (citation omitted).

Rudenauer v. Zafiropoulos, 445 Mass. 353, 357 (2005).

14
The defendant has not identified any proposed bill to
create a continuing treatment exception to the discovery rule in
medical malpractice cases that the Legislature failed to enact.
But even if the Legislature had, we would not necessarily
interpret its failure to enact such legislation as demonstrating
an affirmative legislative rejection of such an exception. In
Franklin v. Albert, 381 Mass. 611, 617 (1980), we noted that
several bills that would have amended G. L. c. 260, § 4, to
include a discovery rule had been proposed and rejected by the
Legislature, but we declined to "read the failure to enact these
bills as necessarily disapproving, in principle, a discovery
rule." We recognized that, "[t]he practicalities of the
legislative process furnish many reasons for the lack of success
of a measure other than legislative dislike for the principle
involved in the legislation." Id. at 615-616, quoting Berry v.
Branner, 245 Or. 307, 311 (1966).
 25

Therefore, in this case, the plaintiffs' cause of action would

have been barred by the statute of repose had it been brought

more than seven years after November 4, 2005, the date of the

RFA procedure, even if the cause of action had yet to accrue

under the continuing treatment doctrine.15,16

15
The defendant contends, in a single short paragraph at
the end of his brief, that if we adopt the continuing treatment
doctrine we should only do so prospectively because it would be
"a drastic change" in the current law on accrual of causes of
action. Assuming that this constitutes adequate appellate
argument, we disagree. As the foregoing discussion shows, the
continuing treatment doctrine in medical malpractice cases is a
logical and foreseeable application of the same basic principles
that underlie the continuing representation doctrine in legal
malpractice cases, which has been in effect at least twenty-five
years. See Murphy, 411 Mass. at 137. There is nothing
"drastic" or radically new about it.
16
The dissent claims that our recognition of the continuing
treatment doctrine "intrudes into a critically important sphere
of health care policymaking and makes [our] own preferred policy
judgment without any inkling of the effect it might have on the
cost of health care in Massachusetts, a matter of acute concern
to the executive and legislative branches of government." Post
at . This criticism rests on three fallacies. First, the
dissent assumes that the continuing treatment doctrine will
dramatically increase the cost of health care by significantly
increasing the cost of medical malpractice insurance to health
care professionals. Some perspective is in order. The
continuing treatment doctrine will permit adjudication on the
merits of medical malpractice claims that were filed more than
three years after a plaintiff learned, or reasonably should have
learned, that he or she has been harmed by a physician's
conduct, but fewer than seven years after the occurrence of the
allegedly negligent act, where the patient continues to be
treated for the same or related condition by the allegedly
negligent physician. There is no reason to believe, let alone
adequate factual information in the record to support a belief,
that adoption of the doctrine will affect enough claims to have
any meaningful impact on the cost of medical malpractice
insurance.
 26

2. Effect of actual knowledge on continuing treatment

doctrine. In Lyons v. Nutt, 436 Mass. 244, 250 (2002), we held

that the continuing representation exception to the discovery

rule in a legal malpractice case terminates once "the client

actually knows that he suffered appreciable harm as a result of

his attorney's conduct." We reasoned that once "the client has

such knowledge, then there is no 'innocent reliance which the

continued representation doctrine seeks to protect.'" Id.,

quoting Cantu, 401 Mass. at 58. The defendant urges us to apply

Second, the dissent assumes, without any factual basis,
that the Legislature prefers that the few patients who would be
affected by the continuing treatment doctrine should be denied
the opportunity to receive any compensation for their
physician's negligence in order to avoid the remote possibility
that adoption of the continuing treatment doctrine would
significantly affect the cost of medical malpractice insurance.

Third, although the Legislature has consistently remained
silent as to when a cause of action accrues, leaving that to be
determined by the courts under the common law, and although the
dissent recognizes that we made clear in Franklin, 381 Mass. at
617, that "[a]bsent explicit legislative direction, the
determination of when a cause of action accrues, causing the
statute of limitations to run, has long been the product of
judicial interpretation in this Commonwealth," the dissent
assumes that we can and should infer from the Legislature's
silence that it has made a "policy judgment" to reject the
continuing treatment doctrine. To adopt the dissent's inference
from silence would contradict this statement in Franklin and
invite all the confusion that arises from an inference based on
legislative silence. Moreover, if any inference is to be made
from silence, we can infer from the absence of "explicit
legislative direction" as to when a cause of action accrues that
the Legislature has been content to leave this matter to
judicial interpretation, and has instead barred older claims
only through enactment of a statute of repose.
 27

an analogous rule for the continuing treatment exception in

medical malpractice cases.

In deciding whether to adopt this "actual knowledge" rule,

we first consider the logic and purpose behind it. We declared

in Lyons, 436 Mass. at 247, quoting Williams v. Ely, 423 Mass.

467, 473 (1996), that "[t]he statute of limitations applicable

to a legal malpractice claim begins to run when a client 'knows

or reasonably should know that he or she has sustained

appreciable harm as a result of the lawyer's conduct.' . . .

This is the so-called discovery rule." The consequence of the

termination rule in Lyons is that, even where the client

continues to be represented by the attorney, the statute of

limitations clock for legal malpractice claims begins when a

client actually knows that he or she has sustained appreciable

harm as a result of the lawyer's conduct. If a client

reasonably should know that the attorney has caused the client

appreciable harm, but does not actually know it, the continuing

representation rule continues to apply.

However, in the practice of law, actual knowledge that an

attorney caused a client appreciable harm generally means actual

knowledge that the attorney committed legal malpractice.

Indeed, in Lyons, 436 Mass. at 247-248, 251, we affirmed the

judge's ruling that the continuing representation exception did

not apply after the client realized that his law firm "didn't
 28

know what they were doing" once the offeror "walked away from

the deal." See Hendrickson v. Sears, 365 Mass. 83, 91 (1974)

("A client's cause of action against an attorney for negligent

certification of title to real estate does not 'accrue' . . .

until the misrepresentation is discovered or should reasonably

have been discovered, whichever first occurs . . .").

But with medical malpractice, 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. The instant

case is a classic example: there was no question that the

defendant's RFA procedure caused appreciable harm to William,

but actual knowledge of that fact shed little light on whether

the harm arose from a mere complication or from the defendant's

breach of the standard of care. Therefore, in contrast with an

attorney's client, it is simply incorrect to say that, once a

physician's patient knows that the physician has caused the

patient appreciable harm, there can be no "innocent reliance"

that the continuing treatment doctrine seeks to protect. A

patient who continues under the care of the same physician will

still have the same challenges in learning whether the harm the

patient suffered from the physician's treatment arose from the
 29

physician's negligence. Thus, we conclude that the continuing

treatment exception to the discovery rule terminates only when

the plaintiff has actual knowledge that his or her treating

physician's negligence has caused the patient's appreciable

harm, because it is only then that there can no longer be the

kind of "innocent reliance" that the continuing treatment

doctrine seeks to protect. Once a patient learns that the

physician's negligence was the cause of his or her injury, the

patient has acquired sufficient information to initiate

litigation, and there is no longer adequate reason to continue

to toll the statute of limitations.17

17
The Appeals Court held that the continuing treatment
doctrine does not end, and continues to apply, even if the
patient becomes aware of the physician's negligence, stating
that 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.'" Parr v.
Rosenthal, 87 Mass. App. Ct. 787, 798 (2015), quoting Harrison
v. Valentini, 184 S.W.3d 521, 525 (Ky. 2005). We decline to
place so great an emphasis on the protection of the physician-
patient relationship once the patient has actually learned of
the physician's negligence. Where a physician has acted
negligently in the patient's treatment, the benefit of promoting
the continuation of that relationship is questionable. Faced
with the prospect of the patient suing for malpractice, the
physician has competing interests -- on one hand to see that the
patient gets the best treatment, and on the other hand to
protect his or her own interest by avoiding exposure to
liability. While there may be circumstances where the
physician's unique familiarity with the patient's medical
history enables the physician to treat the patient's condition
most effectively, there may well be others where the physician's
 30

To be clear, by declaring that the tolling of the statute

of limitations ends under the continuing treatment doctrine only

when a plaintiff obtains actual knowledge of a physician's

negligence, we are not revising the discovery rule in medical

malpractice. Where the continuing treatment doctrine does not

apply, the statute of limitations clock begins to run on a

medical malpractice claim when the plaintiff learns, or

reasonably should have learned, that he or she has been harmed

by the defendant's conduct. Franklin, 381 Mass. at 619. Where

the continuing treatment doctrine does apply and, but for the

application of the doctrine the statute of limitations clock

would have started under the discovery rule, the tolling arising

from the doctrine ends once the plaintiff has actual knowledge

that the physician's negligence was the cause of his or her

injury.

3. Applicability of continuing treatment doctrine during

treatment by physicians other than the defendant. In this case,

there is no evidence that Rosenthal continued to treat William

at any point after William returned home from Spaulding in

December, 2005. If the continuing treatment doctrine applies to

Rosenthal's treatment only, then the doctrine would not toll the

statute of limitations period long enough to render the

negligence is indicative of inferior knowledge or skill that
will continue to adversely affect the patient's recovery.
 31

plaintiffs' action timely. The question becomes whether the

doctrine continued to apply, and continued to toll the statute

of limitations for a claim against Rosenthal, for the additional

period that Raskin and Ebb treated William thereafter, as they

continued to try to remedy the damage done during the RFA

procedure.

The plaintiffs in their proposed jury instruction claimed

that the continuing treatment doctrine applies during the

ongoing treatment by a defendant physician "or doctors with whom

he works." See note 8, supra. On appeal, the plaintiffs

contend that it applies to medical personnel who were (1) in

some "relevant association with the [initial treating]

physician," Kelly v. State, 110 A.D.2d 1062, 1063 (N.Y. 1985)

(Hancock, J.P., dissenting); or (2) "part of the same team,"

Tausch v. Riverview Health Inst. L.L.C., 187 Ohio App. 3d 173,

182 (2010). The Appeals Court recognized that "[t]he 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." Parr, 87 Mass. App. Ct. at 794,

citing Tolliver v. United States, 831 F. Supp. 558, 560 (S.D. W.

Va. 1993). See Parr, supra at 795 n.20, and cases cited. The

court adopted a variation of the plaintiffs' argument and held

that, "[o]n retrial, if the jury conclude that William was a

group patient of all three doctors and not an individual patient
 32

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." Id. at

795-796.

We agree that the continuing treatment doctrine would apply

where an allegedly negligent physician continues to supervise,

advise, or consult with other physicians who are treating the

patient for the same or a related injury. See Otto, 815 F.2d at

989 (in medical malpractice case where National Institute of

Health [NIH] was sole defendant, continuing treatment doctrine

applied where "additional treatment was rendered at the advice

and under the direction of the NIH physicians"); Stephenson v.

United States, 147 F. Supp. 2d 1106, 1112 (D.N.M. 2001)

(continuing treatment doctrine applied where negligent primary

care physician had "continued direct involvement in evaluating

[the patient]'s progress" and exercised "control over the

treatment of [the patient] by the other health-care providers");

Echols v. Keeler, 735 P.2d 730, 732 (Wyo. 1987) (continuing care

doctrine did not apply where allegedly negligent doctor did "not

continue as [the patient's] doctor nor was he associated with or

engaged in assisting the doctors thereafter treating [the

patient]"). There was no evidence here, however, that after

December, 2005, Rosenthal supervised the treatment of William,
 33

or advised or consulted with Raskin and Ebb regarding their

treatment of him. Consequently, for the plaintiffs' medical

malpractice cause of action to be timely, the continuing

treatment doctrine would need to apply to the period following

the surgery in which William was being treated by Raskin and Ebb

alone.

We need not determine here whether to follow the case law

in other jurisdictions that have applied the continuing

treatment doctrine to the continuing care of other physicians in

the same medical group partnership or medical clinic where a

patient is considered by the physicians and the patient to be a

patient of the group or clinic rather than of an individual

physician. See Offerdahl v. University of Minn. Hosps. &

Clinics, 426 N.W.2d 425, 428 (Minn. 1988); Watkins v. Fromm, 108

A.D.2d 233, 239 (N.Y. 1985). In Offerdahl, supra, the plaintiff

was a student at the University of Minnesota who "did not seek

treatment from any particular University physician but employed

the University clinic generally as her physician." The Supreme

Court of Minnesota held that although the claim was based upon

negligence by a particular physician of the clinic, "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 malpractice, is
 34

relevant for purposes of determining when treatment terminated

and the statute of limitations began to run." Id. Similarly,

in Watkins, supra at 234-235, the Appellate Division of the

Supreme Court of New York held that the continuing treatment

doctrine tolled the statute of limitations where ongoing

treatment was provided by members of the negligent physician's

medical group because, according to deposition testimony, the

plaintiff "was considered to be a patient of the entire medical

group, rather than of any one of the individual doctors, and

that it was the practice of the defendant doctors to discuss, as

a group, the diagnosis and treatment of all of the patients

under their care." Those factual circumstances are not

presented here. There is no evidence in the record that William

was treated as a patient of the sarcoma group rather than of the

particular physicians providing treatment, that the physicians

in the group discussed the diagnosis or treatment of all their

patients with the group, or that William's parents believed him

to be a patient of the group rather than of individual

physicians.

We have considered whether the reasons that underlie the

continuing treatment doctrine justify the application of the

doctrine where the allegedly negligent physician and the

physician who continues to treat the patient once were together

part of a patient's "treatment team." We recognize that, in
 35

these circumstances, there is a risk that a patient's continued

trust and confidence in the physician providing continuing care

might put the patient at a disadvantage in making an informed

judgment as to whether a former team member provided negligent

treatment, especially where the physician providing the

continuing care effectively brought the allegedly negligent

physician onto the team. We also recognize that there is a risk

that, if a plaintiff were to contemplate a medical malpractice

action against a former team member, the plaintiff might

reasonably fear that exploring an action against that physician

would interrupt or otherwise interfere with the patient's

continuing treatment with other members of the team because of

their respect for and close connection with that physician.

We are reluctant, however, to extend the continuing

treatment doctrine to a "treatment team" for two reasons.

First, tolling the statute of limitations while the plaintiff

continues to be treated by a "treatment team" that once included

the allegedly negligent physician poses the risk that what was

intended to be a narrow exception may be interpreted so broadly

as to devour the discovery rule in medical malpractice cases.

Second, given the multitude of different ways in which patients

receive medical treatment in this Commonwealth, it is difficult

to define with precision a patient's "treatment team." The

absence of a precise definition means not only that it would be
 36

difficult at trial to instruct a jury regarding the statute of

limitations but, more importantly, it would be difficult to

determine whether a case should be dismissed before trial on

statute of limitations grounds. The clarity and precision of a

limitations period is important to the interests of justice,

because it enables untimely filed cases to be dismissed before

trial, thus sparing all parties the needless time, expense, and

burden of a trial where the jury will never reach an

adjudication on the merits.

Because, having balanced the competing considerations, we

are unwilling to apply the continuing treatment doctrine to the

plaintiff's continued treatment by a "treatment team" that once

included the defendant, the doctrine does not apply in this case

after December, 2005. And without the tolling of the statute of

limitations beyond that date under the continuing treatment

doctrine, the plaintiffs' medical malpractice claim was not

timely filed.

Conclusion. We affirm the judgment in favor of the

defendant and the order denying the plaintiffs' motion for a new

trial.

So ordered.
 CORDY, J. (dissenting in part). The court's decision today

fails to consider several factors that strongly militate against

adopting a continuing treatment exception to our settled

discovery rule for medical malpractice claims. Instead, the

court imprudently intrudes into a critically important sphere of

health care policymaking and makes its own preferred policy

judgment without any inkling of the effect it might have on the

cost of health care in Massachusetts, a matter of acute concern

to the executive and legislative branches of government. These

branches are far better equipped to balance the benefits of a

prolonged statute of limitations with the cost and access issues

it implicates. Just because the court can act to change the law

does not mean that it should. Therefore, I respectfully dissent

from the court's adoption of the continuing treatment doctrine

for medical malpractice cases.

For nearly forty years, our law has been clear: a cause of

action for medical malpractice "accrue[s] when the plaintiff

learns, or reasonably should have learned, that he has been

harmed by the defendant's conduct." Franklin v. Albert, 381

Mass. 611, 619 (1980). See G. L. c. 231, § 60D. Once the harm

and its causal relationship to acts of the physician is known or

reasonably should have been learned, the statute of limitations

clock starts to run, and the patient has three years to
 2

determine whether to file suit. See Bowen v. Eli Lilly & Co.,

408 Mass. 204, 208 (1990).

Although I agree with the court's articulation of our rule

that, in the absence of explicit legislative direction, it may

determine, as a matter of common law, when a cause of action

accrues, and hence when the limitation period begins to run, see

Franklin, 381 Mass. at 617, the absence of explicit statutory

language does not mean that the court should act to change

settled law in a manner inconsistent with legislative

objectives. See Rosenbloom v. Kokofsky, 373 Mass. 778, 780

(1977). In this case, the adoption of the continuing treatment

doctrine runs contrary to the legislative aims undergirding the

Commonwealth's medical malpractice statutory framework and

ignores decades of work and study by the executive and

legislative branches regarding reducing the cost of health care

in the Commonwealth, ensuring both affordability and access.1

1
The Legislature has committed extensive resources to
understanding and addressing the issue of rising health care
costs, not only in the area of medical malpractice, but across
the health care industry as a whole. See House Committee Report
concerning 2012 Senate Bill No. 2400, The Next Phase of
Massachusetts Health Care Reform (between 2009 and 2020, "health
spending is projected to double, outpacing both inflation and
growth in the overall economy. The rapid rate of growth
squeezes out other spending, for individual households, for
businesses, for communities and in the state budget. That is
why this effort [to address rising health care costs while
improving health care quality and patient care] is essential for
our long-term economic competitiveness and for the health of our
residents"). To that end, it has mandated that various
 3

Indeed, the court's ignorance of the impact on the cost of

health care of its sudden change of mind on the accrual of

malpractice claims is staggering.2 If ever there was a case that

executive agencies, including the Health Policy Commission, the
office of the Attorney General, and the Department of Public
Health, monitor and report on the costs of health care in the
Commonwealth. See G. L. c. 6D, § 8, as amended by St. 2013,
c. 35, § 3 (mandating annual hearings and report concerning
health care expenditures); G. L. c. 12, § 11N (mandating that
Attorney General "monitor trends in the health care market" and
granting authority to investigate medical providers and payers);
G. L. c. 12C, § 17 (Attorney General tasked with investigating
information "related to health care costs and cost trends,
factors that contribute to cost growth within the commonwealth's
health care system and the relationship between provider costs
and payer premium rates"); St. 2012, c. 224, § 272 (mandating
that Department of Public Health "create an independent task
force . . . to study and reduce the practice of defensive
medicine and medical overutilization in the commonwealth . . . .
The task force shall file a report of its study, including its
recommendations and draft of any legislation, if necessary
. . .").

These agencies produce extensive annual reports on the
issue of rising health care costs, as well as recommendations
across a wide range of health care policy issues. See, e.g.,
Health Policy Commission, 2015 Cost Trends Report,
http://www.mass.gov/anf/budget-taxes-and-procurement/oversight-
agencies/health-policy-commission/publications/2015-cost-trends-
report.pdf [https://perma.cc/C7ME-KMGN]; Office of the Attorney
General, Examination of Health Care Cost Trends and Cost
Drivers, (Sept. 18, 2015), http://www.mass.gov/anf/budget-taxes-
and-procurement/oversight-agencies/health-policy-
commission/annual-cost-trends-hearing/2015/cost-containment-5-
report.pdf [https://perma.cc/XK7N-S74D]; Center for Health
Information and Analysis, Performance of the Massachusetts
Health Care System, Annual Report, (Sept. 2015),
http://www.chiamass.gov/assets/2015-annual-report/2015-Annual-
Report.pdf [https://perma.cc/5DZ6-VW2V].
2
The court writes that there is no reason to believe, let
alone adequate factual information in the record, to support a
belief that adoption of the continuing treatment doctrine will
 4

cried out for judicial restraint and deferral to the branches of

government best equipped to strike the proper balance between

ensuring affordable and available health care with the

protection of injured patients, this is it.

1. Legislative intent. After our adoption of the

discovery rule in Franklin, the Legislature amended G. L.

c. 231, § 60D, regarding the limitations period during which a

minor might bring a claim for medical malpractice. See St. 1986

c. 351, § 23. The legislative history is clear that the

Legislature knew that we had adopted the discovery rule, and

this knowledge informed the course of the statute's amendment.

See Annual Report of the Special Commission Relative to Medical

Professional Liability Insurance and the Nature and Consequences

of Medical Malpractice, 1987 House Doc. No. 5262.3 In addition,

affect enough claims to have any meaningful impact on the cost
of medical malpractice insurance. See ante at note 16. This
argument underscores the obvious: the court simply cannot know,
in the way the Legislature can, whether or how adoption of the
doctrine will affect the cost of medical malpractice insurance.
However, where concern over such costs has been a major driver
behind legislative reform in this area, see discussion infra, it
seems apparent to me that the court should take a more cautious
approach to redefining this area of settled law.
3
The Special Commission Relative to Medical Professional
Liability Insurance and the Nature and Consequences of Medical
Malpractice (commission) was established by St. 1975, c. 362,
§ 12. Its purposes included making recommendations to
ameliorate the high cost of medical malpractice insurance. The
report, which issued in 1987, discussed the issues that led to
the current version of G. L. c. 231, § 60D, including the
enactment of the current limitations period:
 5

our prior cases have carefully considered the intent of the

Legislature in enacting major pieces of medical malpractice

legislation, St. 1975, c. 362, and St. 1986 c. 351, and we have

repeatedly acknowledged its concern regarding the costs

associated with medical malpractice litigation and its efforts

to ameliorate the costs of medical malpractice insurance. See,

e.g., Darviris v. Petros, 442 Mass. 274, 283-284 (2004)

(describing medical malpractice act of 1986 as "an exhaustive

statutory scheme governing medical malpractice claims" and

concluding that "[e]xpanding the scope of damages available to

plaintiffs who are victims of medical malpractice, and the

period within which to make such claims, is contrary to the

express intent of the Legislature in enacting St. 1986,

"Most actuarial experts that testified before both the
Special Commission and the Committee on Insurance
stated meaningful savings would be realized by a
change to the statute of limitations. At present, an
action may be commenced within three years of
discovery that there are grounds to initiate a suit
for medical malpractice, but there is no limit on the
time period in which such discovery must be made.
Under Chapter 351, the statute of limitations for
medical malpractice actions would be revised to place
an outside limit on the time which a lawsuit may be
commenced, that limit being seven years after the date
of the occurrence which gave rise to the claim, except
when the action is based upon the leaving of a foreign
object in the body in which case no outside limit
shall apply (Section 30, Chapter 351)." (Emphasis
added.)

Annual Report of the commission, 1987 House Doc. 5262, at 9.
 6

c. 351"); McGuiggan v. New England Tel. & Tel. Co., 398 Mass.

152, 163 (1986) (Lynch, J., concurring) ("[T]he General Court

has recently limited the amount that may be recovered by victims

of medical malpractice in an attempt to solve what it perceives

as a crisis in the medical profession brought about by the

burgeoning cost of malpractice insurance. St. 1986, c. 351.

The Legislature has acted to restrict recovery by injured

litigants in order to limit the expense of practicing

medicine"). See also Paro v. Longwood Hosp., 373 Mass. 645, 647

(1977) (tribunal requirement of medical malpractice act of 1975

was enacted "as part of a comprehensive package designed to

ensure the continued availability of medical malpractice

insurance at a reasonable cost)".

In sum, the result reached by the court today is anomalous

in light of the legislative history and intervening decisions of

this court, which recognize that the medical malpractice

statutory framework is intended to moderate the cost and expense

of medical malpractice litigation and that such a purpose is

accomplished, in part, by the statute of limitations period.

The court notes that the absence of legislative action cannot be

interpreted as an affirmative rejection of the continuing

treatment doctrine. In reaching this conclusion, however, the

court ignores the fact that the statutory scheme was developed

in tandem with the common law, and that expanding the period in
 7

which a medical malpractice claim may be brought markedly

departs from the clear policy aims the Legislature sought to

accomplish by repeatedly enacting legislation addressing

malpractice claims, insurance, and the objective of reducing the

time of exposure to such malpractice claims. See note 2, supra.

Finally, it is notable that the Legislature did include

express "exceptions" to the limitations period in G. L. c. 231,

§ 60D. First, there is an exception so any child under the age

of six "shall have until his ninth birthday" to bring a claim.

Second, the seven-year statute of repose has an exception for

"the leaving of a foreign object in the body." Id. Given the

Legislature's consideration and inclusion of these exceptions, I

cannot conclude that a "continuing treatment" exception should

be inferred where it was not included by the Legislature. "The

fact that the Legislature specified one exception . . .

strengthens the inference that no other exception was intended."

Joslyn v. Chang, 445 Mass. 344, 350 (2005), quoting LaBranche v.

A.J. Lane & Co., 404 Mass. 725, 729 (1989).

Thus, contrary to the court's conclusion, it is apparent

that, in the medical malpractice context, the Legislature has

concurred with, and maintained, our uniformly applied "accrual"

standard, as articulated in Franklin.4 The statutory history and

4
To the extent that the court relies on decisions from
other jurisdictions in adopting the continuing treatment
 8

framework reflect a legislative choice to balance the goals of

protecting defendant health care providers from extended tort

exposure from stale claims, and of eliminating the "manifest

injustice" which would result without the discovery rule for

plaintiffs who are "blameless[ly] ignoran[t]" of information

which might have put them on inquiry notice for purposes of

investigating and possibly pursuing a claim. See Franklin, 381

Mass. at 618.

The decision today elevates this latter policy concern over

the former, based on the court's belief that the continuing

treatment exception to the discovery rule would benefit patients

by addressing a shortcoming it perceives in our current law,

namely that patients are unable to make informed judgments as to

negligent treatment while such treatment is ongoing. See, e.g.,

Harrison v. Valentini, 184 S.W.3d 521, 524 (Ky. 2005). In

adopting the continuing treatment exception, however, the court

fails to consider future impacts to the health care industry --

impacts to which the Legislature has dedicated decades of study

and, in response, carefully crafted legislation that reflects an

effort to best balance competing policy concerns. Where the

Legislature's policy determinations are fairly clear, the court

should defer to those judgments.

doctrine, those cases do not affect my view of what the
Legislature intended.
 9

2. Adopting the exception by analogy. I also disagree

with the court's reasoning that our adoption of the continuing

representation doctrine to the discovery rule in legal

malpractice claims, see Murphy v. Smith, 411 Mass. 133, 137-138

(1991), justifies the adoption of a continuing treatment

exception to the discovery rule in medical malpractice claims.

I disagree with the proposition that, "just as a wronged client

is permitted to benefit from his or her attorney's efforts to

correct a problem without the disruption of exploring the

viability of a legal malpractice action, so, too, is a patient

permitted that same benefit without the disruption of exploring

the viability of a medical malpractice action." Ante at .

This statement both mischaracterizes the rationale underlying

the continuing representation doctrine, and downplays the

significant differences and interests at stake in those two

arenas.

First, with respect to legal malpractice, as we have held,

the continuing misrepresentation 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" (citation omitted). Murphy, 411 Mass. at 137.

Implicit in the doctrine is an understanding that a person
 10

seeking legal services may not recognize that certain acts or

omissions by an attorney constitute malpractice. Our

justification of the doctrine says nothing, however, about

permitting the representation to continue so that an attorney

may correct an error arising from the attorney's conduct; to the

contrary, the facts in Murphy suggest that the attorney accused

of malpractice did nothing to correct his alleged error. Id.

Moreover, the rationale for adopting the continuing

representation doctrine is largely distinguishable from any

analogous rule in the medical malpractice context. The

"continuing representation" principle that we recognized in the

context of legal malpractice arose from assurances given by an

attorney that he had attended to a legal issue that had no

perceptible manifestation to the client. See id. at 136. In

the field of legal malpractice, there are situations, such as

the one presented by Murphy, where the attorney may assure the

client that a certain task has been carried out correctly and

where the client should be able to accept such representations

in the absence of information to the contrary. Such a rule

makes sense in the legal malpractice context because the alleged

act or omission which gives rise to a claim and causes an injury

to the plaintiff is caused somewhere other than in the

plaintiff's own body, often under circumstances remote from a

plaintiff's ability to detect circumstances which might put him
 11

or her on notice of a claim. See, e.g., Murphy, 411 Mass. at

137 (plaintiffs unaware of attorney's purportedly improper

certification of good record title until receipt of letter from

neighbor's attorney). The same cannot be said about the injury

in a medical malpractice case, especially where the defendant's

actions had a direct and perceptible effect on the patient's

body.

The court also justifies its adoption of the continuing

treatment exception by analogy to the continuing representation

doctrine in legal malpractice on the ground that the Legislature

otherwise used almost identical language to describe the

limitations period for medical malpractice claims and for legal

malpractice claims. It is apparent, however, that the

Commonwealth's legislation governing medical malpractice was

enacted in light of a number of competing policy concerns that

are unique to the health care industry -- concerns simply not

present in the practice of law -- a practice that we as a court

regulate.5

5
The language in context is different. As discussed, there
is a statute of limitations that the Legislature enacted
specifically to address medical malpractice and an even more
specialized statute for cases involving minors. See G. L.
c. 231, § 60D; G. L. c. 260, § 4. The medical malpractice
limitations statute includes a statute of repose, but the
statute for legal malpractice does not. The medical malpractice
statute applicable to juveniles eliminates tolling until the
minor's eighteenth birthday (G. L. c. 260, § 7), but the legal
malpractice statute does not. Compare G. L. c. 260, § 4, first
 12

3. Conclusion. The court's adoption of the continuing

treatment exception to the discovery rule is inconsistent with

the apparent legislative objectives underlying the

Commonwealth's medical malpractice statutory regime,

particularly G. L. c. 231, § 60D. In my view, the court should

apply the settled discovery rule to the facts of this case. As

the court acknowledges, the defendant's treatment ceased in

December, 2005. Therefore, the plaintiffs' action, brought in

2009, was not timely.

par., with G. L. c. 231, § 60D. This express statutory language
unmistakably demonstrates that the Legislature intentionally
differentiated the medical malpractice and legal malpractice
statutes of limitation.