Opinion
16-P-299
02-15-2017
Isa ABUZAROV v. Maureen INGRAM & others.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff, Isa Abuzarov, as father and next friend of Salvi Abuzarova (child), appeals from a Superior Court judgment dismissing his medical malpractice claim against three defendants: MWA, P.C., doing business as Riverbend Medical Group (Riverbend); Inpatient Pediatric Services, Inc. (Inpatient); and Maureen Ingram. The judge allowed the three defendants' motions for judgment on the pleadings, finding that the plaintiff's claims were time-barred by the statute of repose. The plaintiff contends that the seven-year statute of repose that governs the claims of minors, G. L. c. 231, § 60D, does not apply to vicarious liability claims or to suits brought by mentally incapacitated minors, and further argues that service, pursuant to Superior Court Rule 9A, of a motion to amend a complaint commences the action for purposes of the statute of repose. We affirm.
After the judge granted the three defendants' motions for judgment on the pleadings, separate and final judgment, pursuant to Mass.R.Civ.P. 54(b), 365 Mass. 820 (1974), entered on behalf of these three defendants.
Background . This medical malpractice action stems from the care of the child during her birth on October 12, 2006. On December 26, 2012, the plaintiff commenced the action against Brenda Maloney, Rebecca J. Rosenstein, and Sisters of Providence Health System, Inc., doing business as Mercy Medical Center. On September 17, 2013, the plaintiff served a motion to amend the complaint pursuant to Superior Court Rule 9A, seeking to add Riverbend, Inpatient, and Ingram as defendants. The unopposed motion was filed on October 16, 2013. Thereafter, the three newly named defendants each moved for judgment on the pleadings, claiming the statute of repose barred actions against them. The judge allowed the motions, and judgment subsequently entered dismissing the plaintiff's claims against those defendants. This appeal followed.
Discussion . 1. Standard of review . " ‘We review de novo a judge's order allowing a motion for judgment on the pleadings under Mass.R.Civ.P. 12(c), 365 Mass. 754 (1974).’ Merriam v. Demoulas Super Mkts., Inc ., 464 Mass. 721, 726 (2013). A motion for judgment on the pleadings tests the legal sufficiency of the complaint. Minaya v. Massachusetts Credit Union Share Ins. Corp ., 392 Mass. 904, 905 (1984). For the purposes of a rule 12(c) motion, all of the well-pleaded factual allegations of the nonmoving party are assumed to be true. [Ibid .]" Champa v. Weston Pub. Schs ., 473 Mass. 86, 90 (2015).
2. Statute of repose . The plaintiff advances two arguments for relief from the operation of the statute of repose. First, he contends that because the actions against Riverbend and Inpatient are vicarious liability claims against employers of health care providers, they are not medical malpractice claims and are not barred by the statute of repose. Second, the plaintiff asserts that the statute does not apply to mentally incapacitated minors.
"Medical malpractice claims by minors are subject to both a statute of limitations (three years from the date the cause of action accrues, or until age nine years for minors who are less than six years of age at the time the cause of action accrues) and a statute of repose (seven years from the date of the act or omission that caused the injury). G. L. c. 231, § 60D." Harlfinger v. Martin , 435 Mass. 38, 40 (2001).
The plaintiff relies on Bing v. Drexler , 69 Mass. App. Ct. 186 (2007), in support of his contention that the claims of vicarious liability are not subject to the time limitation imposed by the statute of repose. We are not persuaded because that case involved the question whether vicarious liability fell within the scope of the medical malpractice tribunal's authority. Id . at 190-191.
The plaintiff contends that § 60D does not apply to Riverbend and Inpatient because their liability is based solely on the theory of respondeat superior and he is not claiming the corporations were negligent, or breached a contract by acts or omissions. Vicarious liability applies only where the agent has committed a wrongful act, i.e., "[t]he liability of the principal arises simply by operation of law and is only derivative of the wrongful act of the agent." Elias v. Unisys Corp ., 410 Mass. 479, 481 (1991). General Laws c. 231, § 60D, as appearing in St. 1986, c. 351, § 23, applies to "any claim by a minor against a health care provider stemming from professional services or health care rendered." Here, the derivative actions against the principals clearly stem from the professional services or health care rendered by their agents and fall within the purview of a medical malpractice claim. Section 60D states the time bar unequivocally: "in no event shall any such action be commenced" after seven years.
Next, the plaintiff contends that the seven-year statute of repose that governs the claims of minors does not apply to suits brought by mentally incapacitated minors. The plaintiff argues that the appropriate statute to apply is G. L. c. 260, § 7, the so-called "disability" tolling statute. The plaintiff relies on McGuinness v. Cotter , 412 Mass. 617 (1992), and Boudreau v. Landry , 404 Mass. 528 (1989), in support of his contention that the claims of mentally incapacitated minors are not subject to the time limitation imposed by the statute of repose. However, both of these cases involved the tolling of a statute of limitations and not a statute of repose, which bars suit even in circumstances that would otherwise toll the statute of limitations. "[S]tatutes of repose are not subject to any form of equitable tolling, Protective Life Ins. Co . v. Sullivan , 425 Mass. 615, 631 n.19 (1997), except as specifically provided by the statute." Joslyn v. Chang , 445 Mass. 344, 350 (2005). However, no such exception for actions involving mentally incapacitated minors appears in § 60D. The fact that the Legislature inserted one exception into the statute of repose, for "the leaving of a foreign object in the body," demonstrates that it did not intend other exceptions. " ‘[T]he duty of the court [is] to adhere to the very terms of the statute, and not, upon imaginary equitable considerations, to escape from the positive declarations of the text. No exceptions ought to be made, unless they are found therein; and if there are any inconveniences or hardships growing out of such a construction, it is for the legislature, which is fully competent for that purpose, and not for the court, to apply the proper remedy.’ Spring v. Gray , [22 F. Cas. 978, 985 (C.C.D. Me. 1830), aff'd, 31 U.S. (6 Pet.) 151 (1832) ]." Joslyn , supra at 352. Accordingly, we conclude the seven-year statute of repose properly applies here.
3. Commencement of action . Furthermore, the plaintiff argues that a procedural conflict exists between G. L. c. 231, § 51 ; Mass.R.Civ.P. 15, 365 Mass. 761 (1974); and Superior Court Rule 9A, and seeks a ruling that claims contained in a motion to amend should be considered commenced upon service to a defendant pursuant to Superior Court Rule 9A.
This is not a situation where the plaintiff could have amended the complaint as of right. See Mass.R.Civ.P. 15(a), 365 Mass. 761 (1974).
Here, the plaintiff's second motion to amend, which sought to add Riverbend, Inpatient, and Ingram, was served pursuant to rule 9A on September 17, 2013, and was filed with the court on October 16, 2013. The statute of repose had run as of October 12, 2013. The plaintiff acknowledges that the Supreme Judicial Court in Nett v. Bellucci , 437 Mass. 630, 631 (2002), held that "[t]he operative date for commencement of an action for purposes of a statute of repose is the date of filing of a motion for leave to amend a complaint and add a party," but claims that the decision failed to address the effect of rule 9A on the commencement of claims by motions to amend. The plaintiff would have us find that the actions added by the amended complaint be considered commenced as of the date on which he served the motion to amend pursuant to rule 9A.
In Blaney v. Lowell Gen. Hosp ., 76 Mass. App. Ct. 910, 910 (2010), this court addressed the same issue, namely, whether the service, pursuant to Superior Court Rule 9A, of a motion to amend a complaint to add additional parties, "commences" the action against those parties for purposes of the statute of repose, citing G. L. c. 260, § 4. We held, consistent with Nett , that "in order to satisfy the statute of repose, the motion for leave to amend must be filed within the statute of repose period." Blaney supra at 911. Here the plaintiff had unilateral control over the filing of the motion and had ample time to file the unopposed motion to amend the complaint without deviating from the requirements of rule 9A. Because there is no equitable estoppel or tolling of the statute of repose, except as specifically provided by statute, Joslyn , supra at 350, the date for commencement of the action against Riverbend, Inpatient, and Ingram occurred on October 16, 2013, i.e., the date the motion to amend was filed, which is outside the limitations period of the statute of repose.
Judgment entered April 6, 2015, affirmed .