JOHN GIANINO, Personal Representative v. BOSTON MEDICAL CENTER & Others.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

24-P-68

JOHN GIANINO, personal representative,1

vs.

BOSTON MEDICAL CENTER & others.2

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff3 appeals from a judgment dismissing his

complaint against the defendant Dr. Joseph Louca, on the ground

that the claims were time-barred by the statute of repose

applicable to medical malpractice actions, G. L. c. 260, § 4.4

On appeal, the plaintiff argues that the judge erred in failing

to (1) apply the doctrine of equitable tolling and (2) toll the

1 Of the estate of Alice Zousoumas.

2Michelle Sia, Christine Curry, Joseph Louca, and Thamarah
Crevecoeur.

3The plaintiff was substituted as the plaintiff on appeal
following Zousoumas's death.

4The claims against Boston Medical Center, Michelle Sia,
Christine Curry, and Thamarah Crevecoeur remain pending in the
Superior Court.
statute of repose in accordance with the Supreme Judicial

Court's third updated order promulgated in response to the

COVID-19 pandemic (COVID-19 order).5 We affirm.

Background. Between 2013 and 2014, Alice Zousoumas

received prenatal, intrapartum, and postpartum care from a

cohort of clinicians at Boston Medical Center (BMC), in

connection with her pregnancy, labor, and delivery. As part of

that care, on January 7, 2014, Dr. Louca administered epidural

anesthesia to Zousoumas while she was infected with Methicillin-

resistant Staphylococcus aureus (MRSA), resulting in an epidural

abscess that escalated into chronic infections, permanent

disabilities, and other long-term health effects.

On January 6, 2017, Zousoumas filed suit against BMC and

several healthcare professionals alleging, inter alia, medical

malpractice. As relevant here, she named Dr. Eddy Feliz as the

anesthesiologist who administered the epidural. She did so

based on medical records produced by BMC in discovery that

seemed to identify Dr. Feliz as the attending anesthesiologist.

On May 22, 2017, Dr. Feliz filed an answer to the complaint

denying the allegations against him and later answered

5 See Third Updated Order Regarding Court Operations Under
the Exigent Circumstances Created by the COVID-19 (Coronavirus)
Pandemic, No. OE-144 (June 24, 2020),
https://www.mass.gov/doc/repealed-sjc-third-updated-order-
regarding-court-operations-under-the-exigent-
circumstances/download [https://perma.cc/5K7R-27AT].

2
interrogatories asserting that he "never had any interactions

with [Zousoumas] at any time," and that he had no knowledge of

other physicians involved in her care. Zousoumas was deposed on

March 11, 2020, during which she conceded that she had neither

met nor spoken with Dr. Feliz, and that he had never been

involved in her care.

Nine months later, on January 14, 2021, Zousoumas's

attorneys learned that Dr. Louca was the anesthesiologist who

performed the epidural. On February 10, 2021, Zousoumas served

a motion to amend the complaint pursuant to Superior Court Rule

9A, seeking to substitute Dr. Louca as a defendant. The judge

allowed the motion on February 16, 2021. Thereafter, Dr. Louca

moved to dismiss so much of the complaint alleging claims

against him, on the ground that they were time-barred by G. L.

c. 260, § 4. In a thoughtful memorandum of decision, a judge

allowed the motion to dismiss and entered a separate and final

judgment in favor of Dr. Louca. This appeal followed.

Discussion. "We review the allowance of a motion to

dismiss de novo, accepting as true all well-pleaded facts

alleged in the complaint." Ryan v. Mary Ann Morse Healthcare

Corp., 483 Mass. 612, 614 (2019), citing Calixto v. Coughlin,

481 Mass. 157, 158 (2018).

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1. Statute of repose. As a threshold matter, the

nomenclature of G. L. c. 260, § 4 instructs our resolution of

the plaintiff's arguments.

"General Laws c. 260, § 4, provides in pertinent part that
'in no event shall any . . . action' sounding in 'contract
or tort for malpractice, error or mistake against
physicians, surgeons . . . hospitals and sanitoria' 'be
commenced more than seven years after occurrence of the act
or omission which is the alleged cause of the injury upon
which such action is based.' This language constitutes a
statute of repose" (footnote omitted).

Joslyn v. Chang, 445 Mass. 344, 346-347 (2005). Consequently,

while G. L. c. 260, § 4 does not explicitly designate itself as

such, the Supreme Judicial Court has expressly characterized

this seven-year limit on medical malpractice actions as a

statute of repose.

Here, the "act or omission" that allegedly caused

Zousoumas' injury was the epidural procedure performed by Dr.

Louca on January 7, 2014. Thus, to be within the seven-year

statute of repose, the plaintiff needed to have brought this

action no later than January 7, 2021. The motion for leave to

amend the complaint to substitute Dr. Louca, filed February 10,

2021, was too late. See Nett v. Bellucci, 437 Mass. 630, 631

(2002) (operative date for calculating statute of repose is date

of filing motion for leave to amend complaint to add party).

2. Equitable tolling. The plaintiff contends that he is

entitled to application of the doctrine of equitable tolling

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because he was misled by inaccurate medical records and the

"[d]efendant's tact[ica]l failure to more timely disclose [Dr.

Louca] as a relevant party." See Halstrom v. Dube, 481 Mass.

480, 485 (2019). Even assuming this to be true, we are

constrained to reject the plaintiff's argument that the doctrine

is available here.

A statute of repose is "a rigid prohibition of action."

Joslyn, 445 Mass. at 350. It is evident that "statutes of

repose are not subject to any form of equitable tolling." Id.

See Nett, 437 Mass. at 646 ("Notwithstanding compelling

equitable considerations, statutes of repose are not tolled").

Indeed, a "statute of repose eliminates a plaintiff's cause of

action even in cases of fraudulent concealment." Bridgwood v.

A.J. Wood Constr., Inc., 480 Mass. 349, 354 (2018). Where,

here, the plaintiff moved to amend the complaint more than a

month after the statute of repose had passed, "we cannot

introduce an equitable exception when the Legislature has

fashioned an ironclad rule." Joslyn, supra at 351.

3. COVID-19 order. The plaintiff further asserts that the

COVID-19 order extended the statute of repose, because it tolled

"all civil statutes of limitations . . . from March 17, 2020,

through June 30, 2020," thus providing an additional 105 days

5
for the plaintiff to amend his complaint.6 See COVID-19 order,

supra at ¶ 13. In essence, the plaintiff asks us to interpret

"all civil statutes of limitations" to include statutes of

repose. This we decline to do.

In interpreting the COVID-19 order, "we rely upon basic

principles of statutory construction." Shaw's Supermkts., Inc.

v. Melendez, 488 Mass. 338, 341 (2021). "If the language is

clear and unambiguous, we 'must give effect to its plain and

ordinary meaning.'" Id., quoting Doherty v. Civil Serv. Comm'n,

486 Mass. 487, 491 (2020). "Where a word is not defined in a

statute, we give the word its usual and accepted meaning, so

long as those meanings are consistent with the statutory

purpose." Shaw's Supermkts., Inc., supra at 342.

The plaintiff points to the title of G. L. c. 260,

"Limitations on Actions," to support his contention that the

seven-year limit imposed by § 4 falls under the umbrella of

statutes of limitations. This, however, is antithetical to the

Supreme Judicial Court's explicit characterization of the

relevant portion of § 4 as a statute of repose, see Joslyn, 445

6 The plaintiff also references a paragraph in the COVID-19
order tolling "all deadlines set forth in statutes or court
rules . . . that expired at any time from March 17, 2020,
through June 30, 2020." COVID-19 order, supra at ¶ 14. This
provision is of no help to the plaintiff, as his claims expired
on January 7, 2021, a date well outside the expiration window
specified in the COVID-19 order. See Shaw's Supermkts., Inc.,
488 Mass. at 343.

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Mass. at 346-347, and its repeated conclusion that "[a] statute

of repose is distinct from a statute of limitations,"

Conservation Comm'n of Norton v. Pesa, 488 Mass. 325, 332

(2021). See Bridgwood, 480 Mass. at 351 ("Statutes of repose

and statutes of limitations are different types of limitations

on actions"). "While a statute of limitations provides a

procedural defense to a legal claim, a statute of repose

provides a substantive right to be free from liability."

Conservation Comm'n of Norton, supra at 332, quoting Bridgwood,

supra at 352. Thus, applying the "usual and accepted meaning"

of statutes of limitations, we cannot infer that the Supreme

Judicial Court intended to amalgamate the two independent

limitations as one. See Bridgwood, supra.

This result is consistent with the scope and purpose of the

COVID-19 order as being "limited to court operations under the

exigent circumstances created by the COVID-19 pandemic." Dunn

v. Langevin, 492 Mass. 374, 378 (2023). In the same way the

Supreme Judicial Court "did not purport to supervise executive

agencies" in issuing the COVID-19 order, Graycor Constr. Co. v.

Pacific Theatres Exhibition Corp., 490 Mass. 636, 646 (2022),

neither can it have intended to supersede policy decisions made

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by the Legislature, see Moran v. Benson, 100 Mass. App. Ct. 744,

748-749 (2022).

Judgment entered September
28, 2023, affirmed.

By the Court (Blake, C.J.,
Neyman & Grant, JJ.7),

Clerk

Entered: December 27, 2024.

7 The panelists are listed in order of seniority.

8