Opinion
No. 12–P–1314.
2013-05-15
Joseph WERSAL v. Daniel NATHANSON & others.
By the Court (GRASSO, KATZMANN & GRAINGER, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
On March 15, 2012, a Superior Court judge dismissed Joseph Wersal's (plaintiff) dental malpractice complaint against Daniel Nathanson, Yair Whiteman, and Boston University Goldman School of Dental Medicine (collectively, defendants) pursuant to Mass.R.Civ.P. 12(b)(6), 365 Mass. 754 (1974). The judge found that the plaintiff filed suit after the three-year statute of limitations had expired. See G.L. c. 260, § 4. This appeal ensued. We affirm.
Discussion. 1. Statute of limitations. A dental malpractice claim must be filed within three years of the date that the cause of action accrues. G.L. c. 260, § 4. See Darviris v. Petros, 59 Mass.App.Ct. 323, 326 (2003), S. C., 442 Mass. 274 (2004). Such “a cause of action accrues when the plaintiff ‘(1) knew or had sufficient notice that [he] was harmed; and (2) knew or had sufficient notice of the cause of the harm.’ “ Lindsay v. Romano, 427 Mass. 771, 774 (1998), quoting from McGuinness v. Cotter, 412 Mass. 617, 627 (1992). “It is not necessary that the plaintiff have notice that the defendant was actually responsible for the injury, only that [he] have knowledge or sufficient notice that the [dental] care given by the defendant may have caused the injury.” Ibid. Accordingly, the judge correctly found that the plaintiff's cause of action accrued at the time of injury, or when his tooth restorations broke on January 16, 2007. On May 3, 2006, the defendants ground down the plaintiff's four front top teeth and installed temporary restorations. However, the defendants did not install permanent crowns prior to January 16, 2007, in spite of the plaintiff's numerous unsuccessful telephone calls between June 7, 2006, and January 16, 2007, to schedule an appointment for the installation of the permanent crowns.
The plaintiff alleges that he did not know of the defendants' negligence until he received a letter dated December 21, 2007, from Stephen DuLong, the associate dean for clinical services. In his letter, DuLong wrote, in part, that the delay in putting in permanent crowns “led to dental decay and/or fracture of some of the teeth involved in treatment.” However, in arguing that his cause of action only accrued upon his receipt of DuLong's letter, the plaintiff misunderstands the applicable law. Ultimately, in order for his cause of action to accrue, the plaintiff need not have known that the defendants were negligent, only that the defendants had likely caused him harm. See Riley v. Presnell, 409 Mass. 239, 243 (1991); Harlfinger v. Martin, 435 Mass. 38, 41 n. 3 (2001). The plaintiff possessed this knowledge on January 16, 2007, when the restorations that the defendants had installed broke. Since he did not file suit until December 20, 2010, and his cause of action accrued on January 16, 2007, the suit fell outside the three-year period permitted by the statute of limitations.
2. Fraudulent concealment. In the alternative, the plaintiff claims that the defendants' fraudulent concealment of their malpractice tolled the statute of limitations. See G.L. c. 260, § 12. However, this claim has no merit because the alleged fraudulent concealment took place after January 16, 2007, or the date that the statute of limitations began to run. See Riley v. Presnell, 409 Mass. at 250–251 (“a cause of action is not concealed from one who has knowledge of the facts that create it.... Once the injured party becomes aware or reasonably should become aware of the existence of the cause of action, the statute begins to run”).
3. Continuous treatment doctrine. In the alternative, the plaintiff argues that the defendants' continuous treatment of him served to toll the statute of limitations.
This claim must also fail. As the plaintiff did not raise this claim in the Superior Court, he has waived his right to argue this claim on appeal. See Carey v. New England Organ Bank, 446 Mass. 270, 285 (2006). Moreover, even if the plaintiff had raised this claim below in the Superior Court, Massachusetts courts do not recognize the viability of the continuous treatment doctrine. See Rudenauer v. Zafiropoulos, 445 Mass. 353, 359–360 (2005).
The continuous treatment doctrine allows a plaintiff to toll the running of a statute of limitations of a malpractice cause of action until the end of his or her course of treatment with the medical professional. See Rudenauer v. Zafiropoulos, 445 Mass. 353, 357 (2005).
4. G. L. c. 93A claim. Finally, the plaintiff argues that the judge erred in ruling that the three-year statute of limitations applied to his G.L. c. 93A claim. Generally, a claim alleging a violation of c. 93A must be commenced within four years after the cause of action accrues. See G.L. c. 260, § 5A. However, where a “plaintiff present[s] no more than a reiteration of his [underlying] claim under the guise of a c. 93A violation,” the judge shall apply the statute of limitations applicable to the underlying claim. Schwartz v. Travelers Indem. Co., 50 Mass.App.Ct. 672, 676 n. 7 (2001). Accordingly, as the judge found that the plaintiff's c. 93A claim was a mere reiteration of his underlying malpractice claim, she properly dismissed the claim as time-barred under the three-year statute of limitations.
Judgment affirmed.