CHRISTINE HECK vs. COMMONWEALTH & others. [Note 1]

LYNCH, J. On May 30, 1984, the plaintiff filed a complaint in the Superior Court against Northampton State Hospital and its employees, alleging that, on May 31, 1981, the defendants negligently refused to evaluate, admit, and treat the plaintiff

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for mental illness, or refer her to other appropriate mental health services. Damages for permanent injuries sustained were sought under the Massachusetts Tort Claims Act (act), G. L. c. 258. [Note 2] The complaint alleges that the plaintiff sent a letter presenting her claim to the Secretary of the Executive Office of Human Services, see G. L. c. 258, Sections 1, 4, on February 2, 1984. An amendment to the plaintiff's letter of presentment claimed that the plaintiff was mentally ill and incompetent "from the date of the incident to the present," and this fact was also alleged in the complaint. The defendant, pursuant to Mass. R. Civ. P. 12 (b) (6), 365 Mass. 754 (1974), moved to dismiss the complaint, contending that presentment of the claim was not made within two years of the date on which the action accrued, as required by G. L. c. 258, Section 4. [Note 3] The defendant asserts that the "cause of action accrued on May 31, 1981," and that the plaintiff's possible mental disability or incompetence does not toll the presentment requirements of the act. After argument and briefing on the motion, a judge in the Superior Court entered an order purporting to "report the case" to the Appeals Court, citing Mass. R. Civ. P. 64, 365 Mass. 831 (1974). The text of the order is ambiguous. It suggests

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that the judge was inclined to deny the defendants' motion to dismiss because he deemed this court's recent decisions holding the act's presentment requirement not tolled in other situations inapplicable to a case concerning an incompetent. [Note 4] The order, however, does not explicitly deny or otherwise rule on the motion, although it is entitled "Order on Defendants' Second Motion [Note 5] to Dismiss." Moreover, the docket does not reflect that the judge took action on the motion and denied it. The only relevant docket entry records an "Order Reporting Action to the Appeals Court," and states that notice of such an order was sent. We granted the plaintiff's application for direct appellate review. The report is not properly before us and, accordingly, we discharge it.

A Superior Court judge may report a case to the Appeals Court if he or she makes an interlocutory finding or order which he or she believes "so affects the merits of the controversy that the matter ought to be determined by the appeals court before any further proceedings in the trial court . . . ." G. L. c. 231, Section 111 (1984 ed.). Mass. R. Civ. P. 64. An order such as the one entered in the instant case, therefore, which attempts merely to report the case, but by which the judge takes no other action regarding the controversy, is not the sort of "order" contemplated either by statute or rule. [Note 6] As none of

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the other circumstances in which a Superior Court judge may report a case here pertain, e.g., a verdict or finding of fact by the judge or an agreement by the parties as to the material facts, see G. L. c. 231, Section 111; Mass. R. Civ. P. 64, the report must be discharged. Doe v. Doe, 378 Mass. 202, 203 (1979), and cases cited. Cf. Commonwealth v. Andover, 378 Mass. 370, 376 (1979).

In cases where we have found it necessary to discharge a report, we have nonetheless "been willing to express our views" on matters thus not strictly before us, "particularly when the case has been fully briefed on the merits, when there is a public interest in obtaining a prompt answer . . . and when the answer to be given is reasonably clear." Brown v. Guerrier, 390 Mass. 631, 632 (1983), and cases cited. On the other hand, to the extent that matters of public policy and constitutional questions are raised, we have stated a preference for passing on the issues in light of a fully developed trial record rather than in the abstract. Doe v. Doe, supra. We therefore make these additional comments.

It would appear unlikely, in view of the requirements of G. L. c. 258 and the decided cases, that we would conclude that the plaintiff's mental incompetency tolls the two-year presentment requirement of the act. See Fearon v. Commonwealth, 394 Mass. 50 (1985) (presentment requirement not tolled by application of G. L. c. 260, Section 10, where executor of plaintiff's estate failed to comply with presentment requisites of act); George v. Saugus, 394 Mass. 40 (1985) (minority of plaintiff does not toll presentment requirment); Weaver v. Commonwealth, 387 Mass. 43 (1982) (presentment requirement not tolled by application of G. L. c. 260, Section 10, where administratrix of estate failed to make proper and timely presentment under act). See also Hernandez v. Boston, 394 Mass.

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45, 47 (1985) (statute of limitations provision of Section 4, which is tolled by G. L. c. 260, Section 7, is distinguished from presentment requirement of Section 4, not tolled for minor plaintiff). Under some circumstances, however, incompetency may prolong the period during which presentment can be made.

In medical malpractice cases, the cause of action accrues when the plaintiff learns or reasonably should have learned that he or she has been harmed by a defendant's conduct. Franklin v. Albert, 381 Mass. 611, 619 (1980). See Pruner v. Clerk of the Superior Court in the County of Norfolk, 382 Mass. 309, 312 (1981). This "discovery rule" is applied in order to avoid punishing "blameless ignorance" of a plaintiff by holding malpractice actions time-barred before the plaintiff "reasonably could know of the harm . . . suffered." Franklin v. Albert, supra at 618, citing Urie v. Thompson, 337 U.S. 163, 169-170 (1949). In Dinsky v. Framingham, 386 Mass. 801 (1982), we stated that "[w]e see no reason why the rules applied to the accrual of a cause of action asserted under G. L. c. 258 should be different from the general rules we apply to the accrual of actions under G. L. c. 260." Id. at 803. The "discovery rule" thus applies to medical malpractice claims under the act and governs the interpretation of the phrase "within two years after the date upon which the cause of action arose" in Section 4 of the act. We do not decide under what circumstances, if any, the plaintiff's incompetency may affect when she knew or reasonably should have known that she had been harmed by the defendant's conduct. Cf. Pardy v. United States, 575 F. Supp. 1078, 1081 (S.D. III. 1983); Kelly v. United States, 554 F. Supp. 1001, 1005 (E.D.N.Y. 1983); Zeidler v. United States, 601 F.2d 527, 530-531 (10th Cir. 1979); id. at 532-533 (Logan, J., dissenting) and cases cited; Jackson v. United States, 234 F. Supp. 586 (E.D.S.C. 1964).

For reasons already stated, it is inappropriate for us to comment further at this point in the proceedings of this case.

Report discharged.