In a tragic accident, a doctor negligently administers radiation treatments to his patient’s leg, resulting in serious burns. The patient is immediately aware of the burns, but does not know that her doctor was negligent. The doctor continues to treat the patient for four more years, making various unsuccessful attempts to heal the burn. Throughout this time, the patient never learns of her doctor’s negligence. Eventually, the patient’s leg must be amputated. After the amputation, the negligent doctor plays no further role in caring for the patient, who is treated by others.
Six years after her injury, having learned from her new physicians that her burns were caused by her former doctor’s negligent administration of the radiation treatments, the patient sues the negligent doctor for malpractice. Is her claim barred by the three-year statute of limitations applicable to medical malpractice actions? Probably not.
In Parr v. Rosenthal, 475 Mass. 368 (2016), the Massachusetts Supreme Judicial Court adopted the continuing treatment doctrine, under which the statute of limitations for a medical malpractice claim does not begin to run while the patient continues to be treated by the allegedly negligent doctor, unless the patient obtains actual knowledge not just that she has been injured by the doctor’s treatment but that the doctor’s conduct was negligent.
The statute of limitations and statute of repose.
Massachusetts G.L. c. 231, § 60D, provides that a claim for medical malpractice, “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 ….” Thus, an action for medical malpractice is subject to a three-year statute of limitations and a seven-year statute of repose. In the factual scenario described above, the patient commences her action within seven years, so the statute of repose does not bar her claim. The question is whether the patient’s claim is barred by the three-year statute of limitations.
The discovery rule.
“A statute of limitations typically prescribes the time period when an action must be commenced after the cause of action ‘accrues.’ ” Parr, 475 Mass. at 377. “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. at 377-78. (Internal quotation marks omitted). However, the plaintiff need not know that the defendant was negligent. “[U]nder 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.” Id. at 378.
The continuing treatment doctrine.
The continuing treatment doctrine is an exception to the discovery rule. While under the discovery rule, the patient’s cause of action accrues, and the limitation period begins to run, as soon as the patient learns that she has been injured as a result of the physician’s conduct, under the continuing treatment doctrine, while the negligent doctor continues to treat the patient, the limitation period begins to run only when the plaintiff learns not just that she has been injured by the doctor’s conduct, but also that the doctor was negligent.
In Parr the Supreme Judicial Court explained,
We … 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 … learns that the physician’s negligence was the cause of his or her injury.
475 Mass. at 369. According to the Court,
[W]hile [a] 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.” 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 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.
Effect of actual knowledge on continuing treatment doctrine. … 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.
Id. at 383-84. (Emphasis in original, citations and footnote references omitted).
In this case.
In the scenario outlined above, the patient commences her malpractice action six years after her injury, rendering her claim potentially untimely under the three-year statute of limitations. The discovery rule offers no assistance to the patient because she knew from the beginning that her injury was caused by the defendant doctor’s conduct (enough to start the clock running under the discovery rule).
However, the continuing treatment doctrine should apply. The doctor-patient relationship between the patient and the negligent doctor continued for four years after the injury. While that relationship continued, the malpractice claim could accrue, and the limitations period could begin to run, only if the patient obtained actual knowledge that her doctor had acted negligently. As she never knew of her doctor’s negligence while their relationship continued, the limitations period was tolled during the entire four years of the relationship and began to run only after the patient’s leg was amputated and the defendant doctor ceased to be involved in her treatment. She brought suit six years after her injury, but only two years after the end of her doctor-patient relationship with the defendant. Therefore, the three-year statute of limitations does not bar the patient’s malpractice action.