Opinion
No. 15–P–1471.
10-25-2016
Naledi MOENG v. Neelam M. THACKER.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff, Naledi Moeng, appeals from a Superior Court judgment dismissing her medical malpractice claim against the defendant, Neelam M. Thacker, M.D. The judge had allowed the defendant's motion to dismiss, finding that the plaintiff's claim was 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 suits brought by “mentally incapacitated” minors. She asserts that the judge erred in dismissing the complaint against the defendant on the basis of the time limitations imposed by that statute. Reviewing the judge's allowance of the motion to dismiss de novo, we affirm. See Dartmouth v. Greater New Bedford Regional Vocational Technical High Sch. Dist., 461 Mass. 366, 373 (2012) ; Harrington v. Costello, 467 Mass. 720, 724 (2014).
The plaintiff's amended complaint names as defendants four doctors, which includes the defendant. After the judge granted the defendant's motion to dismiss, a separate and final judgment, pursuant to Mass.R.Civ.P. 54(b), 365 Mass. 821 (1974), entered on behalf of the defendant.
On April 29, 2014, the plaintiff filed a medical malpractice complaint against various doctors stemming from acts committed between the dates of May 1, 2007, and May 6, 2007. The original complaint named Vasant M. Thacker, M.D., as one of the defendants. Several months later on July 18, 2014, the plaintiff moved under Mass.R.Civ.P. 15(a), 365 Mass. 761 (1974), to substitute the name “Neelam M.” for that of “Vasant M.”. That motion was granted on July 23, 2014. Thereafter, the newly named defendant, Neelam M. Thacker, M.D., moved to dismiss the complaint against her as barred by the statute of repose. The judge allowed the motion and judgment subsequently entered dismissing the plaintiff's claim against that defendant. This appeal followed.
The defendant is identified in the plaintiff's mother's medical records. The defendant and Vasant M. Thacker, M.D., are both obstetricians and, according to the defendant, practiced medicine together at the time the original complaint was filed.
Statute of repose. The timing in which medical malpractice claims may be brought by minors is governed by G.L. c. 231, § 60D, and it contains both a statute of limitations and a statute of repose. Harlfinger v. Martin, 435 Mass. 38, 40 (2001). The statute of limitations sets out the time period in which “an action must be commenced after the cause of action ‘accrues.’ “ Parr v. Rosenthal, 475 Mass. 368, 377 (2016). Generally, the action must be brought “within three years from the date the cause of action accrues, except that a minor under the full age of six years shall have until his ninth birthday in which the action may be commenced.” G.L. c. 231, § 60D, as amended by St.1975, c. 634, § 1. This limitation period applies “[n]otwithstanding the provisions of section seven of chapter two hundred and sixty,” ibid., which governs situations in which a person is “incapacitated by reason of mental illness.” G.L. c. 260, § 7, as amended by St.1987, c. 522, § 19.
The statute of repose imposes another time constraint on the filing of a medical malpractice complaint. It provides that “in no event shall any [medical malpractice action brought by a minor] 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.” G.L. c. 231, § 60D, as appearing in St.1986, c. 351, § 23. The statutory language, as well as its history and purpose, reflect “a legislative determination that an absolute time limit is appropriate in medical malpractice actions.” Rudenauer v. Zafiropoulos, 445 Mass. 353, 358 (2005) (discussing analogous medical malpractice statute of repose for adults). This time constraint applies even when the injury to the plaintiff has neither resulted nor been discovered. Ibid. Moreover, “[n]otwithstanding compelling equitable considerations, statutes of repose are not tolled.” Nett v. Bellucci, 437 Mass. 630, 646 (2002).
“[T]he Legislature allowed only one exception to the statute of repose, that pertaining to actions arising from a foreign object left in the body.” Joslyn v. Chang, 445 Mass. 344, 350 (2005).
The plaintiff relies on McGuinness v. Cotter, 412 Mass. 617 (1992), in support of her contention that the claims of mentally incapacitated minors are not subject to the time limitation imposed by the statute of repose. We are not persuaded, as that case involved the tolling of a statute of limitations and not a statute of repose, which bars suit even under circumstances that would otherwise toll the statute of limitations. Id. at 620–622. See Tindol v. Boston Hous. Authy., 396 Mass. 515, 518–519 (1986). Accordingly, we conclude the seven year statute of repose properly applies here.
For that reason, the issue of whether the plaintiff “is incapacitated by mental illness” has no bearing on the outcome of this case.
Substitution of defendant. The plaintiff claims, the seven-year time limitation notwithstanding, that her complaint against the defendant was nevertheless timely because the amendment substituting the defendant should date back to the original filing date of the complaint. We disagree.
The plaintiff moved to amend the complaint to substitute the defendant pursuant to Mass.R.Civ.P. 15(a). Rule 15 permits a party to amend a pleading “once as a matter of course at any time before a responsive pleading is served and prior to entry of an order of dismissal.” Ibid. In such cases, for purposes of the statute of repose, the action commences on the filing date of the motion to amend. Nett v. Bellucci, supra at 631; Blaney v. Lowell Gen. Hosp., 76 Mass.App.Ct. 910, 910–911 (2010). Therefore, the judge here properly considered July 18, 2014–the date on which the plaintiff moved to amend her complaint to substitute the defendant—the operative date for purposes of calculating the expiration of the statute of repose. Since that date exceeds the seven—year time limitation by several months, dismissal was proper.
Finally, contrary to the plaintiff's assertion, her claim does not benefit from analysis under Mass.R.Civ.P. 17(a), 461 Mass. 1401 (2011), and her cite to Henshaw v. Brown, 299 Mass. 136 (1937), for the proposition that the defendant is a “real party in interest” is misplaced. In Henshaw, the amendment substituting a named defendant related back to the original filing date of the complaint where the “only defect in the proceedings was that the writs were not phrased so as to charge the defendant in his capacity as administrator [of an estate].” Id. at 139. The named individual remained the same, and all that changed was the capacity under which he was sued. In stark contrast, here the plaintiff's amendment substituted an entirely new person. While the two doctors bore the same surname, it is apparent from the record that they differed drastically in age, education, and experience. Under these circumstances, therefore, we see no reason to depart from the proposition that “[b]y its very nature Rule 17(a) applies only to those who are asserting a claim.” La Russo v. St. George's Univ. Sch. of Med., 747 F.3d 90, 96 (2d Cir.2014), quoting from 6A Wright & Miller, Federal Practice and Procedure § 1543 (4th ed.2007). There was no error.
To the extent that we have not addressed the plaintiff's other contentions regarding the statute's legislative purpose and intent, they “have not been overlooked. [Rather, w]e find nothing in them that requires discussion.” Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).