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Appeals Court of Massachusetts.



Decided: October 08, 2021

By the Court (Wolohojian, Sullivan & Ditkoff, JJ.2)


The pro se plaintiff appeals from the dismissal of his complaint on statute of limitations grounds, contending that a liberal reading of the complaint demonstrates that his complaint was timely. We affirm, concluding that even the most forgiving assessment of the complaint, supplemented by the plaintiff's representations to the motion judge, fails to disclose facts that would render the complaint timely.

Discussion. “We review the allowance of a motion to dismiss de novo, accepting the allegations in the complaint as true and drawing all reasonable inferences in the [nonmovant's] favor.” Harrington v. Costello, 467 Mass. 720, 724 (2014). “While ‘detailed factual allegations’ are not required at the pleading stage, mere ‘labels and conclusions’ will not survive a motion to dismiss.” Burbank Apartments Tenant Ass'n v. Karqman, 474 Mass. 107, 116 (2016), quoting Iannacchino v. Ford Motor Co., 451 Mass. 623, 636 (2008).

The allegations of the complaint, dated February 26, 2018 and filed on February 27, 2018 are:

“1. On or about February 7, 2015, the plaintiff, entered a doctor/patient relationship with the Defendant doctors at the Brigham And Women's Faulkner Hospital, Inc.’s emergency department, and were obligated by a fiduciary duty, professional and medical standards, and a duty of care during a subsequent phone call.

“2. During that time period, and thereafter, the Defendants engaged in various acts in violation of the law and the Plaintiff's rights, including civil rights under MA law, negligence, medical malpractice, intentional and negligent infliction of emotional distress, false imprisonment, and assault.

“3. The Defendants’ actions resulted in great and various harm to the Plaintiff's body and mind, as well as economic harm.”

Each of the listed causes of action are governed by a three-year statute of limitations. See G. L. c. 260, §§ 2A, 4 & 5B.

At the hearing on the motion to dismiss, the plaintiff elaborated on the allegations of his complaint. He explained the “acts” referred to in paragraph 2 as follows:

“There was a very hostile response and a rejection on me by the particular doctor when I called regarding the false imprisonment on the day I went to the emergency room. Subsequently, there were also contacts I attempted to make there at the hospital regarding their practice and procedure and policies.”

The judge considered these additional statements, as do we.

“[T]he general rule for tort actions is that an action accrues when the plaintiff is injured.” Koe v. Mercer, 450 Mass. 97, 101 (2007). In circumstances where the plaintiff may not know or reasonably be on notice of the harm, “a cause of action accrues ․ [on] the date when a plaintiff discovers, or any earlier date when [ ]he should reasonably have discovered, that [ ]he has been harmed or may have been harmed by the defendant's conduct.” Bowen v. Eli Lilly & Co., Inc., 408 Mass. 204, 205-206 (1990). See Passatempo v. McMenimen, 461 Mass. 279, 293-294 (2012).

Drawing all inferences in favor of Robinson, he was harmed by the defendants on February 7, 2015 when he was allegedly falsely imprisoned. His complaint and his subsequent representations to the judge demonstrate that he was aware of the harm. He called the hospital to complain and sought the hospital policy thereafter. He was dissatisfied with the response he received, but the subsequent events do not extend the statute of limitations for the allegedly wrongful conduct of which he had knowledge on February 7, 2015. See Koe, supra at 101.3

Judgment affirmed.


3.   Under the continuing treatment doctrine, the statute of limitations for medical malpractice may be tolled “while the patient is continuing to receive treatment for the same or related injury or illness from the same physician who allegedly caused the patient harm.” Parr v. Rosenthal, 475 Mass. 368, 378 (2016). The continuing treatment doctrine is inapplicable here because there is no claim of ongoing treatment, see Harlfinger v. Martin, 435 Mass. 38, 52 (2001), and the plaintiff's complaint and supplemental representations at the hearing show that he was aware of the harm he suffered on February 7, 2015. See Parr, supra.

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Docket No: 19-P-1323

Decided: October 08, 2021

Court: Appeals Court of Massachusetts.

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