DocketNumber: No. 09-P-1167
Citation Numbers: 76 Mass. App. Ct. 910
Filed Date: 4/20/2010
Status: Precedential
Modified Date: 6/25/2022
On January 5, 2001, the plaintiffs commenced this medical malpractice action against Lowell General Hospital (hospital), arising out of an incident that occurred on January 9, 1998. On that day, the plaintiffs’ decedent, who had been involuntarily admitted to the hospital, was, allegedly, allowed to escape and was subsequently struck by a motor vehicle on a public way. A medical malpractice tribunal found insufficient evidence as to the hospital, and the plaintiffs filed a bond. On November 3, 2004, two months before the expiration of the seven-year repose period, the plaintiffs served on counsel for the hospital a motion to amend the complaint seeking to add Linda Cowan, Susan LaVallee, Denise Cotter, Joan DeSousa, and Ellen Miller (all nurses at the hospital) as defendants. After discussion with plaintiffs’ counsel regarding further discovery matters, counsel for the hospital told plaintiffs’ counsel in a letter dated November 15, 2004, “you need not file your Motion to Amend . . . until such time as we have discussed this matter further. ... I will not be filing an opposition until we have spoken about this matter.” In a letter dated December 10, 2004, counsel for the plaintiffs references a “Superior Court Rule 9C Conference conducted relative to plaintiff’s [sic] proposed Motion to Amend the Complaint.” No such motion was filed with the Superior Court until February 17, 2006 — thirteen months after the statute of repose had expired — when the plaintiffs filed a motion for leave to amend the complaint to add the defendant nurses.
A Supreme Judicial Court decision, Nett v. Bellucci, 437 Mass. 630 (2002) (Nett), issued two years before the repose question in the matter here developed, is controlling. In that case the court answered two questions certified by the
The plaintiffs point to the defendants’ purported dilatory and obstructive conduct, a claim disputed by the defendants. However, as the plaintiffs concede, there is no equitable estoppel or tolling of the statute of repose, except as specifically provided by statute. Joslyn v. Chang, 445 Mass. 344, 350 (2005). “[Statutes of repose are harsh.” Nett, 437 Mass. at 647. “Notwithstanding compelling equitable considerations, statutes of repose are not tolled.” Id. at 646.
Separate and final judgment affirmed.
This is not a situation where the plaintiffs could have amended the complaint as of right. See Mass.R.Civ.P. 15(a), 365 Mass. 761 (1974). See also Kennedy v. Beth Israel Deaconess Med. Center, Inc., 73 Mass. App. Ct. 459, 465 n.9 (2009).