eJournal

The MBA’s weekly newsletter, with information about upcoming MBA events, members in the news and more.

Identify Malpractice ‘Traps for the Unwary’ with the MBA

Thursday, Oct. 8, 2020
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Have you come across a malpractice "trap" in your practice area that others should be aware of? The Massachusetts Bar Association is seeking input from MBA members as it updates its popular Traps for the Unwary publication. 

Last published as the Sixth Edition in 2011, Traps for the Unwary is a member-exclusive reference guide that looks at some of the malpractice hazards for attorneys who practice in a general, civil practice. From dangers that arise in uncommon circumstances to hard-to-see risks that are masked by a complex matrix of laws and regulations, Traps for the Unwary is a useful tool aimed at benefiting both lawyer and client. The original Traps for the Unwary, published in 1988, earned a first place Award of Achievement from the American Bar Association for service to the bar.

Attorney James E. Harvey Jr. of O’Malley and Harvey LLP, who is again serving as editor-in-chief for the project, has already been working for several months with liaisons from various MBA section councils to update the previous guide and identify new traps. Have a trap to add? Share your "trap" suggestion by emailing it to jharvey@omalleyharvey.com.  

To help you identify potential traps, the MBA will periodically publish excerpts from Traps for the Unwary in eJournal. This week’s trap involves statutes of repose.

TRAPS EXAMPLE: STATUTES OF REPOSE

WARNING: Unlike statutes of limitations, statutes of repose cannot be tolled for any reason, "despite the hardships they may impose on plaintiffs." Bridgwood v. A.J. Wood Construction, Inc., 480 Mass. 349, 353, 105 N.E.3d 224 (2018). Also see Stearns v. Metropolitan Life Ins. Co., 481 Mass. 529, 533, 117 N.E.3d 694 (2019). Unlike a statute of limitations, a "statute of repose is an absolute limitation which prevents a cause of action from accruing after a certain period which begins to run upon the occurrence of a specified event." 480 Mass. at 351. "Notwithstanding compelling equitable considerations, statutes of repose are not tolled . . .  Statutes of repose are harsh." Nett v. Bellucci, 437 Mass. 630, 646-647, 774 N.E.2d 130 (2002).

  • Improvements to real property: M.G.L. c. 260, § 2B, generally provides that tort suits arising from negligent design, construction or administration of improvements to real property must be filed within three years of the date the cause of action accrues but in no event more than six years after completion of construction of the improvement. Berish v. Bornstein, 437 Mass. 252, 770 N.E.2d 961 (2002). Thus, a client injured two weeks ago in a premises liability accident could retain an attorney today, and, if the construction was completed five years and 49 weeks ago, the client’s cause of action against a major defendant will expire if the attorney does not file the complaint within the remaining one week. This statute applies to tort claims, not contract claims, and the court will look to the “gist of the action” to determine whether the claim is based in contract or in tort. Bridgwood v. A.J. Wood Construction, Inc., 480 Mass. at 355.

  • Medical malpractice: In general, actions of contract or tort for malpractice against doctors, dentists and hospitals have a 3-year statute of limitations and a 7-year statute of repose, from the date of the act or omission. M.G.L. c. 260, § 4. See, e.g., Blaney v. Lowell Gen. Hosp., 76 Mass. App. 910, 925 N.E.2d 549 (2010). "Statutes of repose are not subject to any form of equitable tolling."  Joslyn v. Chang, 445 Mass. 344, 350, 837 N.E.2d 1107 (2005) (affirming summary judgment in the wrongful death of an infant where suit was brought ten years later).