Statute of repose bars medical negligence claim over misdiagnosis of plaintiff's muliple sclerosis

Evidence of MS in an MRI
(James Heilman, MD, CC BY-SA 4.0 via Wikimedia Commons)

A Massachusetts medical malpractice case in March reminds law students and lawyers that a statute of repose can be as threatening to a cause of action as a statute of limitations, and furthermore that the statute of repose burdens patients with diligently investigating persistent suffering.

The Massachusetts statute of repose for medmal actions states (emphasis added):

Actions of contract or tort for malpractice, error or mistake against physicians, surgeons, dentists, optometrists, hospitals and sanitoria 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 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.

The plaintiff suffered from multiple sclerosis, which was misdiagnosed in 2011. The results of an MRI indicating MS were never communicated to the plaintiff, almost certainly negligence. But it was more than seven years before the diagnosis was corrected.

The plaintiff tried to predicate her claim on subsequent instances of treatment by the defendant doctors. The court was not receptive. "Even if we generously read the complaint to have alleged separate acts of negligence, that reading would nonetheless be eclipsed by the fact that the 'definitely established event' of the MRI occurred nearly eight years before the complaint was filed," the court opined. A "continuing treatment exception" "would vitiate the statute of repose."

The case is Moran v. Benson, No. 21-P-352 (Mass. App. Ct. Mar. 1, 2022). Justice William J. Meade wrote the opinion of the unanimous panel.