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Appeals Court of Massachusetts.Suffolk.

JOHN DOE No. 4 v. Melvin D. LEVINE & another.1

No. 09-P-466.

Decided: June 24, 2010

Present: Lenk, Grasso, & Vuono, JJ. John P. Ryan (Harry A. Pierce with him) for Children's Hospital Medical Center. Carmen L. Durso for the plaintiff.

In 2006, the plaintiff, John Doe No. 4(Doe),2 brought this medical malpractice and negligence action against Melvin D. Levine, and his employer, Children's Hospital Medical Center (hospital). Doe alleged that Levine sexually assaulted him while he was Levine's patient from 1967 to 1969 and that the hospital was negligent in its hiring, training, and supervision of Levine with respect to Doe. The hospital moved to dismiss Doe's negligence claim on the ground that the doctrine of charitable immunity, as it existed under the common law at the time the alleged sexual assaults occurred, bars recovery. A Superior Court judge denied the motion, and the hospital has appealed from that order.3

The following facts are taken from the complaint.4 Doe was born in 1957. From 1967 through 1969, he received psychotherapy from Levine, who was the Chief of the Division of Ambulatory Pediatrics at the hospital. During this time, Levine allegedly sexually assaulted Doe, and at least five other patients of Levine have made similar allegations.5 Thus, according to Doe, the hospital knew, or in the exercise of reasonable care should have known, that Levine was not “fit” to treat young males without supervision.

At the time that Doe received treatment, the common-law doctrine of charitable immunity precluded any tort liability against a charitable organization. See Colby v. Carney Hosp., 356 Mass. 527, 528, 254 N.E.2d 407 (1969). However, in 1971, the Legislature abolished absolute charitable immunity and replaced it with limited liability. See G.L. c. 231, § 85K, amended by St.1971, c. 785, § 1, which provides in pertinent part: “It shall not constitute a defense to any cause of action based on tort brought against a corporation ․ that said corporation ․ is or at the time the cause of action arose was a charity; provided, that if the tort was committed in the course of any activity carried on to accomplish directly the charitable purposes of such corporation ․ liability in any such cause of action shall not exceed the sum of twenty thousand dollars.” (Emphasis added).6

Shortly after its enactment, the Supreme Judicial Court declared that the statute did not apply retroactively. See Ricker v. Northeastern Univ., 361 Mass. 169, 172, 279 N.E.2d 671 (1972). Consequently, the hospital's liability is contingent on the time at which Doe's cause of action against it arose. If it arose at the time of the assault (between 1967 and 1969), the statute does not apply, and the hospital has the benefit of complete immunity from tort liability. If, on the other hand, it arose in 2006, when Doe claims he first learned that he had been harmed, the statute applies, and the hospital's liability could reach $20,000.

The judge denied the hospital's motion to dismiss on the ground that the “discovery rule,” which tolls the statute of limitations until a plaintiff discovers, or reasonably should have discovered, that he has been harmed by the defendant's conduct, applied to Doe's negligence claims.7 He reasoned that because “the plaintiff was a child when the alleged abuse occurred and the harm occurred in a therapeutic context,” Doe's cause of action “may have accrued” in 2006 and, therefore, the hospital had the benefit of limited charitable immunity, not absolute immunity.8

The judge erred, however, when he focused on the date that Doe's claim accrued instead of when it arose. It matters not when the claim accrued because the governing statute (G.L. c. 231, § 85K) refers only to when the claim arose. The two terms “arise” and “accrue” are not synonymous.9 “Accrue” means “[t]o come into existence as an enforceable claim or right.” Black's Law Dictionary 23 (9th ed.2009). In contrast, “arise” means “[t]o originate; to stem (from).” Id. at 122, 279 N.E.2d 671. Because the conduct from which the claim originated occurred between 1967 and 1969, Doe's claim arose prior to the enactment of the statute, even if it accrued at a later point.10 Application of the discovery rule does not alter the date on which Doe's claim arose because a “ ‘claim’ arises at the time of the ‘underlying incident’ giving rise to the claim.” Eck v. Godbout, 444 Mass. 724, 730, 831 N.E.2d 296 (2005), quoting from Sword & Shield Restaurant, Inc. v. Amoco Oil Co., 11 Mass.App.Ct. 832, 833, 420 N.E.2d 32 (1981). The time at which a cause of action arises is fixed: an event occurred that concurrently or at a later date caused an injury. The discovery of that injury marks the time at which the cause of action accrues.11 Thus, it is not determinative, as Doe contends, that he did not become aware of his injury until 2006 because the date he discovered his injury is relevant only to the time of accrual for limitations purposes and not to the time at which the cause of action arose.12

This case is not dissimilar to George v. Saugus, 394 Mass. 40, 474 N.E.2d 169 (1985), in which the Supreme Judicial Court distinguished “arise” from “accrue” in the context of the Massachusetts Tort Claims Act. The Act requires a claimant to make presentment “within two years after the date upon which the cause of action arose,” yet “[n]o civil action shall be brought more than three years after the date upon which such cause of action accrued ” (emphasis added). G.L. c. 258, § 4, inserted by St.1978, c. 512, § 15. In George v. Saugus, the minor plaintiff did not make presentment within two years of the date of the incident. The applicable discovery rule tolled the statute of limitations for minors until they reach majority. G.L. c. 260, § 7. The court determined, however, that although the statute tolled the time for bringing the civil action (the accrual time), it did not toll the time for making presentment (the arising time). George v. Saugus, supra at 41, 44, 474 N.E.2d 169 (“Presentment is a statutory prerequisite” that “must be met regardless of the age of the claimant”). See, e.g., Harlfinger v. Martin, 435 Mass. 38, 41 n. 3, 754 N.E.2d 63 (2001) (cause of action no longer existed having been extinguished by the statute of repose).13 ,14

Based on the foregoing, we conclude that Doe's negligence claim arose no later than 1969, which is the year in which he alleges he was last treated by Levine. At that time, the hospital had the benefit of absolute charitable immunity. Accordingly, we vacate the order denying the hospital's motion to dismiss. Judgment shall be entered for the hospital.

So ordered.