DEMELO v. STURDY MEMORIAL HOSPITAL INC (2019)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The plaintiff, Richard DeMelo, appeals from a judgment dismissing his medical malpractice claim against the defendant, Sturdy Memorial Hospital, Inc. (hospital), on the ground that the complaint was outside the three-year limitations period established by G. L. c. 260, § 4. We affirm.

According to the allegations in DeMelo's complaint, which we accept as true for the purpose of reviewing the allowance of the hospital's motion to dismiss, see Curtis v. Herb Chambers I-95, Inc., 458 Mass. 674, 676 (2011), in October 2009 DeMelo was admitted to the hospital, where he was sedated and examined. During the examination a nurse negligently catheterized him and, as a result, DeMelo was injured.

DeMelo was informed upon his discharge from the hospital that he “may urinate blood for a little while, but that is just because of the catheter,” and the “bleeding should stop all by [itself] soon.” Indeed, DeMelo “did experience the acute symptoms of urethral injury, pain and bloody discharge in the urine” immediately after his discharge. Although his pain eventually subsided to some extent, DeMelo continued to feel “concern over [his] painful urination.” However, he was fearful to seek medical attention because of posttraumatic stress disorder (PTSD), social anxiety, depression, and iatrophobia, that is, “fear of doctors, otherwise known as white coat phobia.”

Finally, in June 2012 DeMelo “summed up the courage” to return to the hospital to seek treatment, suspecting that his difficulties were caused by a sexually transmitted disease (STD). The STD tests were negative. DeMelo continued to experience troublesome symptoms until, in September 2015, he consulted with other medical providers, ultimately coming to the conclusion that the catheterization procedure in 2009 was the cause of his symptoms.

DeMelo commenced this action in October 2016, seven years after the negligent procedure, and more than four years after he began to seek medical care for his injury. Although DeMelo concedes that he brought his claim outside the three-year limitations period, he argues that his cause of action did not accrue until late 2015 or early 2016 when he learned that his symptoms were related to the 2009 procedure.

“We review the allowance of a motion to dismiss de novo,” accepting the allegations in the complaint as true and drawing every reasonable inference in DeMelo's favor. Curtis, 458 Mass. at 676. To determine whether DeMelo's allegations state a claim on which relief can be granted, see Mass. R. Civ. P. 12 (b) (6), 365 Mass. 754 (1974), “we look beyond the conclusory allegations in the complaint and focus on whether the factual allegations plausibly suggest an entitlement to relief.” Curtis, supra, citing Iannacchino v. Ford Motor Co., 451 Mass. 623, 635-636 (2008). A “complaint which shows on its face that the statute of limitations has run prior to the date the action was commenced” may properly be dismissed under rule 12 (b) (6). See Babco Indus., Inc. v. New England Merchants Nat'l Bank, 6 Mass. App. Ct. 929, 929 (1978).

A “cause of action for medical malpractice accrues ‘when the plaintiff learns, or reasonably should have learned, that he has been harmed by the defendant's conduct.’ One need not apprehend the full extent or nature of an injury in order for a cause of action to accrue.” Riley v. Presnell, 409 Mass. 239, 243 (1991), quoting Franklin v. Albert, 381 Mass. 611, 619 (1980). Based on the allegations in DeMelo's complaint, he was reasonably on notice of his claim soon after he was discharged from the hospital in October 2009, and no later than June 2012. He was informed upon release from the hospital that he might experience bleeding, but that it should quickly subside. He did in fact experience “acute symptoms of urethral injury, pain and bloody discharge in the urine” immediately after his release, but the symptoms did not go away. If he was not sufficiently aware of his injury when the symptoms did not subside, he was still experiencing “painful urination” nearly three years later, to such an extent that he sought medical attention in June 2012.

In other words, as the motion judge noted, DeMelo “was aware of his injury upon his discharge from the hospital and was on notice to inquire about the injury once his painful urination did not subside.” By June 2012 DeMelo was sufficiently concerned that he did in fact seek treatment. Thus, DeMelo's complaint shows on its face that he either knew or should have known of his injury more than four years before he filed his complaint. See Bowen v. Eli Lilly & Co., 408 Mass. 204, 207-210 (1990). See also and compare Darviris v. Petros, 59 Mass. App. Ct. 323, 327 (2003), S.C., 442 Mass. 274 (2004) (medical negligence claim for failure to obtain informed consent before surgery accrued “almost immediately” when “plaintiff knew that she had been subjected to surgery she did not authorize”).

General Laws c. 260, § 7, does not toll the applicable limitations period. DeMelo does not plausibly allege that he was “incapacitated by reason of mental illness.” G. L. c. 260, § 7. Even if PTSD, anxiety, depression, or iatrophobia amount to mental illness within the meaning of this statute, we agree with the motion judge that “any disability preventing the plaintiff from seeking medical care was removed in 2012, when he sought medical care for his painful urination.”

To the extent DeMelo argues that the continuing treatment doctrine tolled the limitations period, see Parr v. Rosenthal, 475 Mass. 368, 369-370 (2016), we are not persuaded. According to the complaint, any treatment DeMelo received from the hospital ended more than three years before he filed this action. See id. at 369 (“once the allegedly negligent physician no longer has any role in treating the plaintiff, the continuing treatment doctrine does not apply”).

Judgment affirmed.