WILLIAM PARR [Note 1] vs. DANIEL ROSENTHAL.

TRAINOR, J. The plaintiff brought a medical malpractice action against the defendant. The jury concluded, pursuant to the judge's instructions, that the statute of limitations had run because the plaintiff knew or reasonably should have known more than three years before filing his complaint that he had been harmed by the defendant. [Note 2], [Note 3] Judgment entered for the defendant, and the plaintiff's subsequent motion for a new trial was denied. The plaintiff

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appeals, arguing that it was error to deny his requested instruction concerning the continuing treatment doctrine as a mechanism for tolling the statute of limitations. [Note 4] We conclude that the continuing treatment doctrine is applicable in Massachusetts and is fairly raised by the facts presented at trial.

Factual background. We review the evidence presented at trial that is relevant to the requested instruction on the continuing treatment doctrine. [Note 5] The cause of action arose out of a radiofrequency ablation (RFA) procedure that was performed by the defendant on November 4, 2005, and resulted in a burn to and the eventual amputation of William's [Note 6], [Note 7] leg.

William was born with a lump in his right leg. Within a few weeks of William's birth the Parrs were referred to the sarcoma group at the Massachusetts General Hospital (MGH). [Note 8] When William was about eight years old, Dr. Mark Gephardt performed surgery on the lesion and determined that it was engulfing most of the calf muscle and impacting William's nerves and blood vessels. Dr. Gephardt could remove only a small portion of the lesion. Pathology later determined that the lesion was a desmoid

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tumor. [Note 9], [Note 10] Shortly after the surgery Dr. Gephardt left MGH and William's primary care was assumed by Dr. David Ebb, a pediatric oncologist, and Dr. Kevin Raskin, an orthopedic surgeon. [Note 11], [Note 12] Both doctors were members of the sarcoma group.

William was followed for many years and is still cared for by the "sarcoma group in the sarcoma conference." The defendant has been a member of the sarcoma group since 1978 and continues to be a member of the group. The sarcoma group is multi-disciplinary and includes "[o]rthopedic oncologists, radiologists, pathologists, radiation oncologists, pediatric oncologists and medical adult oncologists." [Note 13] The group meets weekly to discuss both new cases and cases that need to be revisited. Dr. Raskin explained the function of the group as follows: "It's a way of avoiding making decisions in silos. We make them together. We talk about the cases together. Everyone has input from their own specialty. And ideally at the end of a conference day or a discussion, we have a plan. It's a way of coming up with plans." Dr. Raskin also explained that, as part of the group, he has a "very close interdisciplinary relationship[]" with the defendant.

At some point prior to November of 2005, Drs. Raskin and Ebb proposed doing surgery on William's tumor, which at this point had caused a "foot drop," and surgery was scheduled. However, Mrs. Parr continued to research other options and she discussed the possibility of doing RFA treatment with Drs. Ebb and Raskin. Dr. Raskin asked Dr. Rosenthal after one of the weekly meetings about the possibility of using RFA on William. Mrs. Parr testified that Drs. Ebb and Raskin thought RFA was something to consider and referred the Parrs to the defendant, who they said "was the

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best doctor in the business basically. He was the - one of the founders of radiofrequency ablation and had worked at Mass. General for a long time." After that, Mrs. Parr discussed with the defendant the possibility of treating William with RFA. These discussions occurred by telephone and through electronic mail messages. [Note 14] Mrs. Parr spoke to at least one other doctor, not affiliated with MGH, about doing the RFA procedure before it was scheduled with the defendant.

On the day of the RFA procedure, Dr. Ebb came into the waiting room to find Mrs. and Mr. Parr after the procedure had been terminated. Dr. Ebb told Mrs. Parr "that there had been a complication during the procedure." Dr. Ebb said the complication was "burn above the tumor site." Mrs. Parr was first made aware that "something had gone wrong" around noon of the day of the RFA. Mr. Parr testified that either Dr. Ebb or Dr. Rosenthal told them that there had been a complication and that they discovered the burn when they moved the surgical drapes. He also testified that he knew it was related to the procedure. Neither the doctors nor anyone else from MGH ever told the Parrs what caused the burn.

Dr. Raskin later spoke to Mrs. Parr, saying that "he was going to admit Will to the hospital." Mrs. Parr was not told the cause of the burn or how serious it was, but her understanding at that time was that William "would recover and be fine . . . my understanding was that he would be okay." Dr. Rosenthal originally described it as a "superficial burn." Dr. Raskin referred to the burn as a "superficial blister" in his notes on the day of the RFA procedure. Mr. Parr testified that after learning of the complication, "we were hopeful it was just something minor that . . . it would heal up and we would move forward and ultimately get home soon." Mr. Parr testified that they did not know how serious the burn was at first and that he "never knew" how bad the burn was.

After being at MGH for a week, William was sent to Spaulding Rehabilitation Hospital (Spaulding) "[b]ecause he still couldn't move he was in so much pain. And he still had a very large, unhealed burn on the back of his knee. He was really very unstable." William was at Spaulding for four to five weeks. Dr. Rosenthal visited William while he was at MGH, and he reviewed

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William's records and visited him at Spaulding while William was recovering from the burn. Dr. Raskin gave Dr. Rosenthal updates about William's progress because he was entitled to those updates as "part of the team."

When William returned home after being at Spaulding, he received in-home physical therapy, and a visiting nurse provided medical care. The burn did not heal during this process despite efforts throughout the winter that were directed by Dr. Raskin. The burn became infected and William was readmitted to MGH in February of 2006. Dr. Raskin performed debridements of the burn. Amputation was considered, and on March 20, 2006, William's leg was amputated below the knee. [Note 15] The Parrs commenced this medical malpractice action on March 6, 2009, more than three years from the date of the RFA procedure but less than three years from the date of the first amputation.

Jury instructions. The plaintiff requested that the judge instruct the jury, in relevant part, as follows:

"Further, the law recognizes that, 'a person seeking professional assistance has a right to repose confidence in the professional's ability and good faith and realistically cannot be expected to question and assess the techniques employed or the manner in which services are rendered,' while he is still being treated for the same injuries. The law recognizes that it is not reasonable to expect a patient to sue her doctor while she is being treated by him, or doctors with whom he works, while she is being treated by them for the same injury. The Plaintiff's cause of action does not accrue until treatment for the injuries has been terminated."

The judge denied this request because the doctrine had not been adopted in Massachusetts in the medical malpractice context, and he concluded that even if the rule had been adopted, it did not apply in this factual situation. The judge instead instructed the jury that the cause of action accrues as follows:

"The general rule is that a cause of action accrues on the date of the plaintiff's injury; in this case, William's injury. However, that rule does not apply where the plaintiff did not know or could not reasonably have known of the cause of action. . . . [T]he question comes down to whether the plaintiffs

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knew or should have known that William Parr had been harmed to an appreciable or not insignificant extent by Dr. Rosenthal's conduct."

After these instructions, the jury answered "yes" to the special verdict question: "Did the plaintiffs know or should they reasonably have known prior [to] March 6th, 2006, . . . that they had been harmed by the conduct of the defendant?" See note 3, supra.

Standard of review. "We review objections to jury instructions to determine if there was any error, and, if so, whether the error affected the substantial rights of the objecting party." Dos Santos v. Coleta, 465 Mass. 148 , 153-154 (2013), quoting from Hopkins v. Medeiros, 48 Mass. App. Ct. 600 , 611 (2000).

Discussion. The continuing treatment doctrine would, generally, toll the running of the statute of limitations during treatment for the same or related illness or injury continuing after the alleged act of malpractice but not during the continuation of a general physician-patient relationship by itself. Both parties agree that neither the Supreme Judicial Court nor this court has addressed whether the continuing treatment doctrine tolls the statute of limitations in medical malpractice actions in Massachusetts.

The Supreme Judicial Court has, however, adopted an analogous continuing representation rule that is applicable to legal malpractice claims. See Murphy v. Smith, 411 Mass. 133 , 137 (1991) ("the continuing representation doctrine . . . tolls the statute of limitations in legal malpractice actions where the attorney in question continues to represent the plaintiff's interests in the matter in question"). In Murphy, the court explained that "[t]he doctrine 'recognizes that a person seeking professional assistance has a right to repose confidence in the professional's ability and good faith, and realistically cannot be expected to question and assess the techniques employed or the manner in which the services are rendered.'" Id. at 137, quoting from Cantu v. Saint Paul Cos., 401 Mass. 53 , 58 (1987). [Note 16]

The questions at issue here are first, whether the statute of limitations is tolled during the continuing treatment of the patient for the same injury upon which the action for malpractice is

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based, and second whether, if the patient knew or reasonably should have known of the appreciable harm resulting from the act of malpractice, the statute of limitations would not be tolled by application of the continuing treatment doctrine.

As to the first question, we can see no reason why a rule analogous to the continuing representation doctrine should not apply to medical malpractice claims in the limited situation where three years since the harm occurred has elapsed but the seven-year statute of repose [Note 17] has not yet barred the action. [Note 18] The statute of limitations imposed on medical malpractice claims uses almost exactly the same language as is applied to legal malpractice claims. See G. L. c. 260, § 4, first par., inserted by St. 1981, c. 765 (requiring that legal malpractice claims "shall be commenced only within three years next after the cause of action accrues"). Compare G. L. c. 260, § 4, second par. (requiring that medical malpractice claims "shall be commenced only within three years after the cause of action accrues"). See also Harlfinger v. Martin, 435 Mass. 38 , 49 (2001) (explaining that the Supreme Judicial Court extended the same discovery rules that apply to other tort claims to medical malpractice actions in Franklin v. Albert, 381 Mass. 611 , 618-619 [1980]). Moreover, the jurisdictions the Supreme Judicial Court cited to support the adoption of the continuing representation doctrine for legal malpractice in Massachusetts have all adopted a version of the continuing treatment doctrine for medical malpractice cases. [Note 19]

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The defendant argues that the continuing treatment doctrine, even if adopted, would not apply in this case because Drs. Ebb and Raskin's treatment of William after the RFA procedure

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cannot be imputed to the defendant. However, whether the continuing treatment by the sarcoma group would be imputed to the defendant presents a factual question for the jury.

The case law in other jurisdictions does not clearly establish a single rule for when treatment by an associated doctor can be imputed to the alleged negligent doctor. See Tolliver v. United States, 831 F. Supp. 558, 560 (S.D. W. Va. 1993) ("Examination of the cases does not disclose a bright-line rule showing clearly when multiple physicians are to be considered as providing continuous treatment under the rule. The cases discussed herein do make clear that a close nexus is required for a change of doctors not to break the chain"). However, many cases acknowledge that when there is a close relationship between the doctors, or a patient is considered a patient of the group, then subsequent treatment by another doctor may be imputed. [Note 20] On retrial, if the

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jury conclude that William was a group patient of all three doctors and not an individual patient of Drs. Raskin and Ebb, or that the defendant was still providing input to Drs. Raskin and Ebb on William's care as part of the group prior to the amputation, then their continuing treatment for the burn can be imputed to the defendant. However, if the jury conclude that the defendant was simply a specialist who provided discrete care and did not participate in the care of William's burn, then Dr. Raskin's and Dr. Ebb's care cannot be imputed to the defendant. As a result, this is a factual question for the jury to consider. See Mule v. Peloro, 60 A.D.3d 649, 649-650 (N.Y. 2009) (holding that whether the continuing treatment doctrine applied was an issue of fact where the plaintiffs provided evidence their decedent was subsequently treated by other physicians in the same group for the same condition); Green v. Associated Med. Professionals of NY, PLLC, 111 A.D.3d 1430, 1432 (N.Y. 2013).

The answer to the second question, whether the discovery rule limits the application of the continuing treatment doctrine, requires us to choose between a division in our Federal and State jurisdictions regarding the primary reason for applying the continuing treatment doctrine. On the one hand is "the patient's ability to discover the facts surrounding her injury, while she is still being treated by the same doctor who caused the injury in the first place. Courts have stated that it is not reasonable to expect a patient under the continuing care of a doctor to be able to recognize that the doctor's actions may have caused her injuries, because the doctor may conceal information from the plaintiff, and the patient will be reluctant to question her doctor while she is still under the doctor's care." Stephenson v. United States, 147 F. Supp. 2d 1106, 1109 (D. N.M. 2001). The primary reason to apply the doctrine in these jurisdictions is to allow the patient to discover the injury. [Note 21]

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On the other hand is the pragmatic recognition that courts want "to prevent interference in the doctor-patient relationship, as long as it exists, and want to give the doctor an opportunity to treat and heal any injury the doctor may have caused. As the Ulrich [Note 22] opinion states, some courts feel it is 'absurd' to require the plaintiff to interrupt corrective treatment in order to immediately commence legal proceedings. These opinions emphasize the trust and confidence placed in doctors by their patients. . . . In other words, these courts do not want any disruption of the treatment that could end up healing the patient, thus avoiding a significant problem later and a lawsuit altogether."

Ibid.

If the emphasis is on the question of discovery, the application of a continuing treatment doctrine will only provide some assistance to a plaintiff whose knowledge of the injury and the cause of the injury is doubtful. [Note 23] However, if the focus is on the benefit of encouraging a physician-patient relationship and allowing, if not encouraging, the patient to complete the course of treatment for the injury, it is less relevant whether the patient knows of the injury or of its cause. Application of the doctrine will toll the statute of limitations so long as the patient remains in continuous treatment for the injury by the same physician or group, or under the general control of that physician or group, subject to the statute of repose. Maintaining this relationship will benefit the patient by allowing and encouraging proper treatment of the injury.

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We recognize that actual knowledge of legal malpractice in Massachusetts typically terminates the application of the continuing representation exception to the statute of limitations accruing at discovery. See Lyons v. Nutt, 436 Mass. 244 , 249-250 (2002). In adopting this limitation to application of the continuing representation doctrine, the Supreme Judicial Court indicated that once a client has actual knowledge that he has suffered appreciable harm, there is no reason to apply the rule because "then there is no innocent reliance which the continu[ing] representation doctrine seeks to protect." Id. at 250 (quotation omitted).

Unlike continuing legal representation, however, in the medical malpractice context there is a compelling reason to continue to protect the physician-patient relationship even after the plaintiff arguably has actual knowledge. The patient could in "good faith . . . know[] that the physician has rendered poor treatment, but continue[] treatment in an effort to allow the physician to correct any consequences of the poor treatment." Harrison v. Valentini, 184 S.W.3d 521, 525 (Ky. 2005). See ibid. (further explaining that the plaintiff must be seeking continued care in good faith). See also Litsey v. Allen, 371 S.W.3d 786, 789 (Ky. Ct. App. 2012) (limiting the situations where the statute of limitations is tolled and the plaintiff has actual knowledge to those situations where there is a showing that the plaintiff is relying on the doctor to "correct the consequences of poor treatment").

Here, the Parrs argue that while they were aware of a "complication" as a result of the RFA, they were led to believe, as the doctors also believed, that the burn was superficial and that William would be fine. The Parrs maintain that they placed their trust and confidence in the treatment plan proposed by Drs. Ebb and Raskin, specifically, and the sarcoma group generally. We conclude that actual knowledge should not bar application of the continuing treatment doctrine so long as the patient is continuing treatment in good faith and not solely to allow more time to develop their malpractice case.

We will therefore adopt the continuing treatment doctrine as it emphasizes maintenance of the physician-patient relationship.

Conclusion. The statute of limitations shall be tolled on a medical malpractice claim so long as the plaintiff receives continuing treatment for the same injury or illness allegedly caused by the original treating physician, even if the plaintiff knew or should have known of the injury and its cause, subject to the limit of the statute of repose. Whether subsequent care provided by other

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physicians can be imputed to the original treating physician will be a question for the jury, as will the question whether the patient is continuing treatment in good faith. On the facts presented here, the judge's refusal to instruct the jury on the continuing treatment doctrine was error affecting the plaintiff's substantial rights. We, therefore, reverse the judgment, set aside the verdict, and reverse the order denying the motion for new trial. We remand the case to the Superior Court for a new trial with directions to the trial judge to instruct the jury in a manner consistent with this opinion.

So ordered.