Medical Malpractice Statutes

The Boston medical malpractice lawyers at The Law Office of Alan H. Crede, P.C. have provided this guide to Massachusetts medical malpractice law.

All fifty states allow patients injured by their doctors to sue for medical
malpractice and the standards for proving medical malpractice are virtually identical
from state-to-state. How did this uniformity come to be? Did the legislatures of all
fifty states get together, hash out the topic of medical malpractice and then enact
laws with virtually identical wording?

The answer is no. Medical malpractice law, in Massachusetts and elsewhere, is part
of the common law — the rich tradition of “judge-made law” that we inherited from our
English ancestors and upon which we have embroidered our own legal doctrines. State
legislatures never faced the task of inventing medical malpractice law from scratch
because medical malpractice law has been developed by judges relying on legal concepts
with centuries-old pedigrees.

But the legislatures of various states have passed medical malpractice laws and
these statutes (the laws passed by legislative bodies are commonly referred to as
“statutes”) affect the periphery of medical malpractice law. Here in Massachusetts, we
have a fair amount of these medical malpractice statutes. They are mainly procedural in
nature, such as the statute of limitation and the statute of repose, but as every
lawyer knows, procedure matters just as much as substantive law. So, without further
ado, here is a guide to the important Massachusetts medical malpractice statutes:

Massachusetts General Laws Chapter 260 Section 4. M.G.L. c. § 4 sets forth both a statute of
limitation and a statute of repose that apply to medical malpractice actions. The
difference between a statute of limitation and a statute of repose is subtle but
important. A statute of repose eliminates all liability for events that occurred a
certain time in the past even if those events only cause an injury in the present day.
So for example, if a manufacturer sold a product twenty years ago and that product is
dangerous and defective and causes an injury today, the manufacturer would not be
liable if the injury occurred in a state with a ten-year statute of repose.

The statute of repose for Massachusetts medical malpractice cases is seven years and
it applies to every type of medical malpractice case, except for medical malpractice
cases, “based upon the leaving of a foreign object in the body.” (That would mean a
medical malpractice case where, say, a surgeon leaves a sponge in the patient’s body
and the patient is sewn up with the sponge still inside of him. That type of medical
malpractice is known as gossypiboma and is discussed here). The practical effect
of the statute of repose is that if a doctor committed medical malpractice in your
treatment eight years ago and you only learn in the present day that you’ve been a
victim of medical malpractice, you will not be able to recover any damages unless your
case was one where a doctor left a foreign object inside of you.

The statute of repose is very unforgiving. Let’s say that, for the past ten years, a
doctor has been treating you continually for a chronic condition, such as kidney
failure, and you discover that, eight years ago, the doctor committed medical
malpractice. Even though the doctor’s treatment of you has been ongoing, rather than a
part of ancient history, the statute of repose will still operate to protect the doctor
from liability for his medical malpractice committed eight years ago.
Rudenauer v. Zafiropoulos
, 445 Mass. 353 (2005);
Nett v. Bellucci
, 437 Mass. 630 (2002).

Statutes of limitations are somewhat more humane than statutes of repose, but not
very much so. A statute of limitations governs how long you can wait to sue after
developing a right to sue for some claim. In Massachusetts, a three-year statute of
limitations applies to victims of medical malpractice, so long as the patient was older
than six years of age when the medical malpractice occurred. (A separate statute of
limitations, Massachusetts General Laws c. 231, § 60D, applies to medical
malpractice cases where the patient was younger than six).

With statutes of repose, it is always crystal clear when the clock starts ticking:
it starts running the moment the medical malpractice (or other tortious act) is
committed. With statutes of limitations, the question is always the same: When did the
clock start to run? Did it start running when the medical malpractice occurred, even if
took a couple years for the injuries from the medical malpractice to manifest

Like a number of jurisdictions, Massachusetts applies a so-called “discovery rule”
to the running of statute of limitations.
Franklin v. Albert
, 381 Mass. 611, 617 (1980). That means that the clock on the
three-year medical malpractice statute of limitation does not start to run until the
patient either discovers, or should have discovered, that he suffered injuries that may
have been connected to his medical treatment.
Lindsay v. Romano
, 427 Mass. 771 (1998). So the clock on the statute of limitations
will begin running even if the patient does not have definitive proof that she has been
the victim of medical malpractice.

Statutes of limitations, unlike statutes of repose, are also subject to tolling.
“Tolling” is the equivalent of hitting the “pause” button on a statute of limitations;
tolling stops the sands from running out of the statute of limitation’s hourglass. A
statute of limitations might be tolled by different circumstances — for instance, if a
plaintiff loses his sanity for a period of time and later regains it, the statute might
be tolled during his period of insanity. Likewise, if a defendant’s fraud concealed
important facts from a plaintiff, that might also serve to toll a statute of

It is fair to say that statutes of limitation and statutes of repose can be pretty
confusing. But the upshot for any victim of medical malpractice is clear: Get to a
medical malpractice lawyer as soon as possible and have the lawyer sort out these
confusing issues.

Don’t be afraid to contact a lawyer to discuss a possible medical malpractice claim
that you might have, even if you don’t yet have ironclad proof to back up your claim. A
medical malpractice lawyer will be able to investigate your case and obtain the
information you need to connect the dots. Remember: the statute of limitations starts
running as soon as you have reason to believe that you are the victim of medical
malpractice, whether you know that to be a fact or not.

A final reason to visit a medical malpractice lawyer as soon as you have the
slightest inkling that you may have been the victim of medical malpractice is that
medical malpractice cases are incredibly complex and a lawyer will want time to
investigate your case before deciding whether to accept it. If you go into a medical
malpractice lawyer’s office three days or even a month before the statute of
limitations is about to run, many malpractice lawyers will turn you away, even if you
seem to have a very promising case.

Learn More About Malpractice Statutes: