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Appeals Court of Massachusetts.

Parker HAYDEN v. Brian P. MCKEON.


Decided: April 26, 2021

By the Court (Wolohojian, Englander & Hand, JJ.1)


The plaintiff, Parker Hayden, commenced this action against Brian P. McKeon alleging medical malpractice.2 A Superior Court judge dismissed Hayden's complaint because it was barred by the statute of repose applicable to medical malpractice actions, G. L. c. 260, § 4. On appeal, Hayden argues that the statute of repose is for several reasons unconstitutional. We affirm.

As alleged in Hayden's complaint, he underwent an elective surgical procedure -- a tibial tubercle osteotomy -- on June 19, 2012. McKeon, who performed the surgery, at the same time allegedly performed an unauthorized surgical procedure known as the lateral release, after identifying a complication. No one informed Hayden of the complication or the unauthorized procedure when he awoke from surgery. Hayden later developed “debilitating symptoms” in 2018, at which point he first learned about the unauthorized procedure. On October 28, 2019, Hayden commenced this action alleging, among other things, “improper judgment [in] proceed[ing] with an unauthorized ․ surgery.”

McKeon filed a motion to dismiss Hayden's complaint based in part on the statute of repose, G. L. c. 260, § 4. That statute prohibits actions for malpractice from being brought against certain medical providers, including surgeons, more than seven years after the act “which is the alleged cause of the injury.”3 In his written opposition to the motion, Hayden argued only that the statute of repose did not apply to his claims due to the statute's foreign objects exception; he did not raise any constitutional challenges to the statute. At the hearing on the motion, however, Hayden for the first time asserted that the statute of repose is unconstitutional. Even then, Hayden's arguments were confined to “due process” and “equal protection”; he cited out-of-State cases and mentioned the Massachusetts Declaration of Rights only once, without substantive argument.

The motion judge dismissed the action, rejecting the argument that the foreign objects exception applied. Then, relying on Harlfinger v. Martin, 435 Mass. 38, 42-50 (2001), the motion judge concluded that Hayden's “attack on the constitutionality of [the statute of repose was] meritless.” Hayden filed a motion for reconsideration, in which he asserted that he was making “a completely different constitutional[ ] argument” than was made in Harlfinger. Hayden did not provide details, however, such as the constitutional provisions on which he was relying.

On appeal, Hayden does not make any arguments regarding the foreign objects exception to the statute of repose. Instead, he argues that the statute of repose violates arts. 1, 7, 11, and 15 of the Massachusetts Declaration of Rights, the Seventh Amendment to the United States Constitution, and his rights to due process and equal protection. Most of these arguments, however, are not preserved for appeal. Hayden did not raise any arguments with respect to the constitutionality of the statute of repose in his written opposition to the motion to dismiss, and prior to this appeal he had not made a substantive argument regarding the Massachusetts Declaration of Rights. See Pelullo v. Croft, 86 Mass. App. Ct. 908, 909 n.3 (2014).

In any event, the Supreme Judicial Court has previously rejected the arguments that a substantially identical statute of repose, applicable to claims of a minor against “healthcare providers,” violates a plaintiff's due process and equal protection rights. See Harlfinger, 435 Mass. at 42-50 (addressing G. L. c. 231, § 60D). The Court in Harlfinger stated that the seven-year statute of repose in G. L. c. 231, § 60D, did not infringe on any fundamental right, and therefore the Court applied the so-called “rational basis test,” id. at 50, to evaluate the statute's constitutionality. The Court stated that “[t]he test [for constitutionality] does not become more stringent merely because the economic legislation in question has the effect of abolishing a cause of action.” Id. at 43.

The reasoning of Harlfinger applies equally to the statute of repose at issue here. The differences between the statutes are not material; if anything, a statute of repose for suits by minors is more prone to objection than the statute at issue, yet the court found no constitutional infirmity. In upholding G. L. c. 231, § 60D, the court identified a host of valid legislative concerns that justified placing an “outside limit” on when medical malpractice claims could be brought. These concerns included both traditional concerns regarding the avoidance of stale claims and the need for finality, as well as concerns more specific to medical malpractice cases. Id. at 42-44. The Court noted that “the Legislature was convinced that the availability of medical malpractice insurance at affordable premiums was at risk,” and that, “if, as the plaintiffs contend, the Legislature overreacted to the perceived danger ․ the plaintiffs must address their arguments to the Legislature.” Id. at 44-45.

Finally, we note that this court also has previously rejected substantially the same arguments that Hayden makes here, while also rejecting the argument that the statute of repose violates art. 11 of the Massachusetts Declaration of Rights. See Plummer v. Gillieson, 44 Mass. App. Ct. 578, 581-583 (1998).

Judgment affirmed.


2.   Hayden asserted claims for negligence and negligent infliction of emotional distress.

3.   The statute sets an “absolute time limit on the liability of those within [its] protection and ․ abolish[es] a plaintiff's cause of action thereafter, even if the plaintiff's injury does not occur, or is not discovered, until after the statute's time limit has expired.” Rudenauer v. Zafiropoulos, 445 Mass. 353, 357 (2005), quoting Nett v. Bellucci, 437 Mass. 630, 635 (2002).

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