Opinion
10-P-1906
11-14-2011
SEAN M. RILEY, executor, v. STEVEN BENSSON & another.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
A jury returned a special verdict in favor of the defendants, Steven Bensson, M.D., and Mark Robbin, M.D., on claims for medical malpractice and wrongful death brought by Sean Riley, as executor of the estate of his father, Joseph Riley. The jury found the defendants not negligent in their care and treatment of the decedent and (although unnecessary to the verdict) also concluded that the defendants did not cause the decedent's injuries, and the decedent negligently caused his own injuries.
The plaintiff appeals from the judgment and the denial of his motion for a new trial. On appeal, he argues that the judge erred in (1) allowing Bensson to assert the medical malpractice statute of repose (the statute), G. L. c. 260, § 4;
As Robbin's treatment of the decedent commenced in 1998, subsequent to the repose period, he did not assert the statute.
(2) admitting evidence of the decedent's comparative negligence prior to the repose period; and (3) declining to give a jury instruction regarding 'custom and practice' as bearing on the applicable standard of care. We affirm, and award the defendants double costs of appeal. See Avery v. Steele, 414 Mass. 450, 456 (1993) (presence of nonfrivolous arguments does not prevent appeal as whole from being deemed frivolous); Allen v. Batchelder, 17 Mass. App. Ct. 453, 458 (1984) (appeal frivolous when law well-settled and no reasonable expectation of reversal); Mass.R.A.P. 25, as appearing in 376 Mass. 949 (1979).
We pass over whether the plaintiff's failure to provide a transcript of the decedent's entire testimony as shown to the jury amounted to a failure to comply with the trial court judge's order sufficient to warrant dismissal of the appeal. Likewise, we do not dwell on the plaintiff's multiple factual misstatements and failures to support his arguments with correct citations to the record, and address the issues raised in the plaintiff's brief. Compare Hull v. Massachusetts Port Authy., 441 Mass. 508, 514 n.12 (2004) (declining to consider arguments lacking proper record support).
1. Statute of repose. The judge properly concluded that evidence of Bensson's pre-1998 conduct was barred by G. L. c. 260, § 4. The second paragraph of § 4, inserted by St. 1986, c. 351, § 30, provides that '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.' The statute creates an 'absolute time limit on the liability of those within [its] protection and [acts] to abolish a plaintiff's cause of action thereafter.' Rudenauer v. Zafiropoulos, 445 Mass. 353, 357 (2005). Because the decedent initiated suit in 2005, he could not predicate his cause of action on acts or omissions occurring prior to 1998.
We reject the argument that Bensson waived the statute by not asserting it in his answer to the 2005 complaint. Even were the statute an affirmative defense that is waived if not asserted, see Mass.R.Civ.P. 8(c), 365 Mass. 749 (1974), Bensson properly raised the defense in response to the amended complaint. See Massey v. Helman, 196 F.3d 727, 735 (7th Cir. 2000) (amended complaint supersedes the original and permits assertion of previously unmentioned affirmative defenses).
Unlike a statute of limitations, a statute of repose is not set forth in Mass.R.Civ.P. 8(c) as a 'matter constituting an avoidance or affirmative defense.' Courts outside of Massachusetts have characterized a statute of repose as preventing a cause of action from accruing and have concluded that it is not waivable. See Roskam Baking Co. v. Lanham Mach. Co., 288 F.3d 895, 902- 904 (6th Cir. 2002) (interpreting Michigan law).
The contention that the statute is inapplicable because there was no discernible event and the decedent's injuries arose from a continuous course of treatment ignores the explicit teaching of Rudenauer v. Zafiropoulos, supra at 358, which rejected such an argument. There, the court stated that the statute 'extinguish[es] malpractice claims seven years after negligent acts or omissions even when a doctor's treatment of, or responsibility for, a condition continued beyond the alleged negligence.' Ibid. Nothing in Sisson v. Lhowe, 460 Mass. 705, 716 (2011), declares that continuous treatment overrides the statute or renders it inapplicable to wrongful death claims. See Joslyn v. Chang, 445 Mass. 344, 346-347 & n.6 (2005). Sisson, supra, merely holds that a wrongful death claim otherwise barred by the statute may be added to an already pending claim for medical malpractice where the malpractice claim was filed within both the statutes of limitation and repose.
2. Comparative negligence. The various claims of error
in the admission of evidence of the decedent's comparative negligence utterly lack merit. Much of the evidence complained of was introduced by the plaintiff himself. We are also at a loss to discern how such evidence, which was relevant and admissible on the question of causation, could have properly been kept from the jury's consideration. Were that not enough, given the jury's determination that neither defendant was negligent, any error in admission of evidence of the decedent's comparative negligence is irrelevant. See Footit v. Monsees, 26 Mass. App. Ct. 173, 180-181 (1988) (no error in special jury questions where answers to other special questions were dispositive). Finally, neither the plain language of the statute nor any cited authority supports the contention that the statute's reach extends to acts of comparative negligence. The statute speaks only to 'actions' for malpractice and the 'act or omission' constituting the alleged malpractice.
See note 4, supra, regarding the decedent's deposition testimony.
3. Jury instruction on custom and practice. We reject the contention that the judge erred in declining to provide an instruction regarding custom and practice. Although the plaintiff objected, his objection was opaque at best. See Composto v. Massachusetts Bay Transp. Authy., 48 Mass. App. Ct. 477, 480 (2000) (party appealing failure to give a jury instruction must distinctly state grounds of his objection at trial). Moreover, an instruction that evidence of custom or practice is generally admitted to prove that a particular act was performed in accordance with that practice has no bearing on the 'standard of care' of the average qualified practitioner requisite to establishing medical malpractice. See Palandjian v. Foster, 446 Mass. 100, 105 (2006).
Judgment affirmed, with double costs of appeal.
Order denying motion for new trial affirmed.
By the Court (Rapoza, C.J., Grasso & Kantrowitz, JJ.),