MATTHEW HARLFINGER & others [Note 1] vs. HOWARD MARTIN

SOSMAN, J. At issue in the present appeal is the constitutionality of G. L. c. 231, s. 60D, which requires that medical malpractice claims on behalf of minors be brought within seven years of the date of the act or omission that allegedly caused the injury. The plaintiffs contend that this statute of repose violates the due process and equal protection guarantees of the Federal and State Constitutions. In the alternative, they argue that the defendant was under a continuing duty to treat the minor plaintiff, such that the action alleging a breach of that duty is still timely, notwithstanding the passage of more than seven years since the minor was actually treated by the defendant. A judge in the Superior Court granted the defendant's motion for summary judgment, upholding the constitutionality of the statute and rejecting the plaintiffs' theory of a continuing duty. The plaintiffs appealed, and we granted their application for direct appellate review. We find that G. L. c. 231, s. 60D, does not violate due process or equal protection guarantees, and that the plaintiffs' continuing duty theory is unavailing on the facts of this case. We therefore affirm the judgment.

1. Facts. We review the facts in the light most favorable to the plaintiffs. On June 26, 1989, four year old Matthew Harlfinger fell and fractured his elbow. An open reduction and pin fixation was performed three days later by a physician other than the defendant.

The defendant first saw Matthew on August 6, 1989, when he was admitted to Brockton Hospital with a pin track infection. The defendant operated on Matthew to remove the pins at the site of the infection, and discharged him from the hospital ten days later. According to Matthew's mother, the defendant told her that he "would be responsible for treating Matthew after his discharge from the hospital and would provide all necessary follow-up care until Matthew was fully healed and recovered."

Subsequent to Matthew's discharge from the hospital, the defendant saw Matthew four times in his office, the last such office visit occurring on September 26, 1989. At that final visit, Matthew's mother expressed concern that her son's elbow still looked abnormal. The defendant assured her that Matthew's elbow "was fine and there was nothing to worry about," explaining that it might be years before the elbow looked normal again.

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The defendant prescribed a course of physical therapy, and told Matthew's mother that he "would continue to monitor Matthew's rehabilitation and therapy until Matthew was fully recovered."

The defendant did not see Matthew after the September 26, 1989, office visit. Matthew did see a physical therapist, who was located in the same office as the defendant, three times a week for the next several months. The last such physical therapy session occurred sometime in January, 1990.

Thereafter, Matthew's elbow still looked abnormal, but the boy used the arm without any restrictions or complaints of pain. However, in 1996, Matthew began to complain of occasional pain while playing sports. His parents took him to see Dr. Alan Gray, an orthopedic surgeon, sometime in July, 1996. Dr. Gray determined that Matthew's elbow fracture had never healed. On August 22, 1996, Dr. Gray performed internal fixation and bone grafting to achieve bony union of the fracture. Dr. Gray is of the opinion that the defendant should have taken follow-up X-rays of Matthew's elbow, that X-rays would have revealed the nonunion of the fracture, and that earlier surgical intervention would have achieved a better result for Matthew (in terms of both function and appearance of his arm).

The plaintiffs filed their medical malpractice action against the defendant on April 29, 1997. Relying on G. L. c. 231, s. 60D, a judge in the Superior Court held that the seven-year statute of repose barred the plaintiffs' claim. The present appeal followed.

2. G. L c. 231, s. 60D. Medical malpractice claims by minors are subject to both a statute of limitations (three years from the date the cause of action accrues, or until age nine years for minors who are less than six years of age at the time the cause of action accrues) and a statute of repose (seven years from the date of the act or omission that caused the injury). G. L. c. 231, s. 60D [Note 2]. "A statute of limitations normally governs the time within which legal proceedings must be commenced after the

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cause of action accrues. . . . A statute of repose, however, limits the time within which an action may be brought and is not related to the accrual of any cause of action. The injury need not have occurred, much less have been discovered." (Citation omitted.) Klein v. Catalano, 386 Mass. 701, 702 (1982) [Note 3].

The statute of repose was first added to G. L. c. 231, s. 60D, in 1986 [Note 4]. St. 1986, c. 351, s. 23. Previously, s. 60D had contained only the three-year statute of limitations, which applied to minors' claims notwithstanding the tolling provisions of G. L. c. 260, s. 7 [Note 5].

The imposition of a statute of repose on medical malpractice claims was in apparent response to this court's decision in Franklin v. Albert, 381 Mass. 611 (1980), in which we an-

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nounced that the discovery rule would govern the accrual of a cause of action for medical malpractice [Note 6]. A special commission reviewing issues pertaining to medical malpractice insurance, which had been established by the Legislature back in 1975 (St. 1975, c. 362, s. 12), then recommended that an "outside limit" be placed on the time in which malpractice actions could be brought, because, under the discovery rule, "there is no limit on the time period in which such discovery must be made." Annual Report of the Special Commission Relative to Medical Professional Liability Insurance and the Nature and Consequences of Medical Malpractice, 1987 House Doc. No. 5262, at 9. The Legislature then adopted a seven-year statute of repose, applicable to medical malpractice claims by both children and adults, except in cases where the malpractice consisted of leaving a foreign object in the patient's body. St. 1986, c. 351, s. 23 (amending G. L. c. 231, s. 60D) and s. 30 (amending G. L. c. 260, s. 4).

3. Due process. The plaintiffs claim that the statute of repose in G. L. c. 231, s. 60D, violates the due process guarantees of both the Federal Constitution and the Massachusetts Declaration of Rights [Note 7]. A due process challenge to this statute was rejected by the Appeals Court in Plummer v. Gillieson, 44 Mass. App. Ct. 578, 582-583 (1998). We agree with the Appeals Court that the statute of repose bears a reasonable relationship to a legitimate legislative purpose, and that it therefore survives a challenge on due process grounds. Id. at 583.

Due process requires only that the statute "bear[] a real and substantial relation to the public health, safety, morals, or some other phase of the general welfare." Blue Hills Cemetery, Inc. v. Board of Registration in Embalming & Funeral Directing,

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379 Mass. 368, 373 (1979), quoting Sperry & Hutchinson Co. v. Director of the Div. on the Necessaries of Life, 307 Mass. 408, 418 (1940). Where challenged economic legislation does not infringe on any fundamental right, we look only to see whether the legislation "has a permissible legislative objective" and whether the legislation "bears a rational relation to that objective." Klein v. Catalano, supra at 707. The test does not become more stringent merely because the economic legislation in question has the effect of abolishing a cause of action. "[W]e see no basis for treating a law that abrogates a tort remedy differently from any other law that regulates economic activity." Id. at 712 (upholding six-year statute of repose for tort claims involving design and construction work, applying rational relationship analysis rather than compelling State interest analysis).

The statute of repose at issue here was passed as part of a larger, long-term effort to curb the cost of medical malpractice insurance and keep such insurance available and affordable. See Annual Report of the Special Commission Relative to Medical Professional Liability Insurance and the Nature and Consequences of Medical Malpractice, 1978 House Doc. No. 5631; Annual Report of the Special Commission Relative to Medical Professional Liability Insurance and the Nature and Consequences of Medical Malpractice, 1987 House Doc. No. 5262. These are surely permissible objectives, and providing a definitive endpoint beyond which medical malpractice claims cannot be brought bears a rational relation to those objectives [Note 8].

The plaintiffs contend that this rationale does not suffice

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because "the malpractice insurance crisis was illusory" and, in any event, the statute of repose has only a "negligible impact" on the cost of health care. [Note 9] We do not, under the guise of a due process analysis, independently determine the extent of the problem that the Legislature intended to address by economic legislation. Nor do we calculate the precise dollars saved by a particular enactment. The rational relationship test does not require that a statute pass a court-conducted retrospective cost benefit analysis. "Whether [the statute is] wise or effective is not, of course, the province of [courts]." Klein v. Catalano, supra at 707, quoting Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 505 (1982). Rather, to whatever extent a statute has not proved effective, or to the extent that the problem it was intended to address later appears less pressing, the resort is to the Legislature to repeal or modify that legislation in light of new facts and circumstances.

Here, the Legislature was convinced that the availability of medical malpractice insurance at affordable premiums was at risk [Note 10]. Actuarial experts testified that "meaningful savings would be realized" by amending the statute of limitations, which at that time left insurers and health care providers with no outer limit to later discovered but stale claims. Annual Report of the Special Commission Relative to Medical Professional Liability Insurance and the Nature and Consequences of Medical Malpractice, 1987 House Doc. No. 5262, at 9. If, as the plaintiffs contend, the Legislature overreacted to the perceived danger, or

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if, as the plaintiffs argue, the costs of minors' claims brought after seven years are too minimal to have a real impact on insurers [Note 11], the plaintiffs must address their arguments to the Legislature.

The plaintiffs argue that other courts have relied on due process grounds to strike down statutes strictly limiting the time in which medical malpractice actions may be brought on behalf of minors. See Barrio v. San Manuel Div. Hosp. for Magma Copper Co., 143 Ariz. 101, 107 (1984) (statute requiring minor injured under age of seven years to bring action before reaching age ten held unconstitutional); Strahler v. St. Luke's Hosp., 706 S.W.2d 7, 8, 11-12 (Mo. 1986) (two-year statute of repose held unconstitutional); Mominee v. Scherbarth, 28 Ohio. St. 3d 270, 273, 277 (1986) (four-year statute of repose for minors' claims violated due process); Sax v. Votteler, 648 S.W.2d 661, 663, 665-667 (Tex. 1983) (two-year statute of repose unconstitutional). However, several of those cases were decided using a heightened level of scrutiny based on specific State constitutional guarantees [Note 12], not the rational relationship test that we apply in a due process analysis. See Barrio v. San Manuel Div. Hosp. for Magma Copper Co., supra at 104, 107 (State Constitution prohibited "abrogation" of right of action to recover damages for injury; statute of repose operated to "abrogate" that right); Strahler v. St. Luke's Hosp., supra at 12 (relying on "open" courts provision, not due process clause); Sax v. Voneler, supra at 665-667 (applying balancing test under State Constitution's "open courts" provision). Only one case, Mominee v. Scherbarth, supra at 274-277, found a due process

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violation and struck down such a statute under a rational relationship test.

By comparison, other courts that have considered medical malpractice statutes of limitation or repose [Note 13] (including statutes setting significantly shorter deadlines than the statute of repose at issue here) have decided that such statutes do not violate either due process or State constitutional guarantees of access to the courts. See Douglas v. Stallings, 870 F.2d 1242, 1249-1250 (7th Cir. 1989) (upholding Indiana's two-year statute of repose for medical malpractice actions); Holmes v. Iwasa, 104 Idaho 179, 184 (1983) (two-year statute of repose); Johnson v. St. Vincent Hosp., Inc., 273 Ind. 374, 403-405 (1980) (two-year statute of repose); Valentine v. Thomas, 433 So. 2d 289, 293-294 (La. Ct. App. 1983) (three-year statute of repose); Choroszy v. Siew Tso, 647 A.2d 803, 806-807 (Me. 1994) (three-year statute of repose); Ross v. Kansas City Gen. Hosp. & Med. Ctr., 608 S.W.2d 397, 400 (Mo. 1980) (two-year statute of repose); Colton v. Dewey, 212 Neb. 126, 128-129 (1982) (ten-year statute of repose); Harrison v. Schrader, 569 S.W.2d 822, 827-828 (Tenn.1978) (three-year statute of repose); Aicher v. Wisconsin Patients Compensation Fund, 237 Wis. 2d 99, 121-127 (2000) (five-year statute of repose).

The plaintiffs point out, quite correctly, that statutes of repose barring the claims of injured minors are more likely to cause the loss of valuable and meritorious claims than do such statutes barring claims by adults. Lacking either the practical where-withal or the legal capacity to sue on their own behalf, children are dependent on their parents and guardians to bring their

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claims of medical malpractice before those claims become time barred. A child's meritorious claim can thus be lost through no fault of the injured child [Note 14]. The fact that the interests of minors are at stake does not, however, change the nature of our due process analysis. Under the statute of repose at issue in Klein v. Catalano, supra, claims could be barred even though the injury had not yet even occurred [Note 15]. Recognizing that the statute would operate to abrogate any possible tort remedy for persons injured more than six years after completion of the allegedly negligent design or construction of a building, we determined that the due process analysis would be no different from that applied to "any other law that regulates economic activity." Id. at 712. The fact that some minors, due to parental neglect or ignorance (not present here) or to minors' unawareness of the extent and gravity of their injuries, will lose their ability to bring medical malpractice claims does not require us to conduct our due process analysis of this statute of repose with some heightened level of scrutiny.

4. Equal protection. The plaintiffs also contend that G. L. c. 231, s. 60D, violates equal protection guarantees because it impermissibly distinguishes between medical malpractice claims based on the leaving of a foreign object in the patient's body and all other medical malpractice claims. Plaintiffs with claims involving foreign objects are subject only to the three-year statute of limitations from the date of accrual of the action, not to the seven-year statute of repose. All other medical malpractice plaintiffs are subject to both the three-year statute of limitations and the seven-year statute of repose. The statute governing

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medical malpractice claims by adults contains an identical provision, exempting plaintiffs with foreign object claims from its seven-year statute of repose. G. L. c. 260, s. 4.

The distinction at issue involves no suspect classification, and the statute itself does not affect any fundamental right. As such, s. 60D does not deny medical malpractice plaintiffs equal protection "as long as it is rationally related to the furtherance of a legitimate State interest." Carter v. Bowie, 432 Mass. 563, 567 (2000), quoting Chebacco Liquor Mart, Inc. v. Alcoholic Beverages Control Comm'n, 429 Mass. 721, 722 (1999). "[I]f there is any reasonably conceivable state of facts that could provide a rational basis for the classification," the classification will survive an equal protection challenge. Chebacco Liquor Mart, Inc. v. Alcoholic Beverages Control Comm'n, supra at 723, quoting FCC v. Beach Communications, Inc., 508 U.S. 307, 313 (1993). "Legislative line drawing 'requires that some persons who have an almost equally strong claim to favored treatment be placed on different sides of the line.' " Chebacco Liquor Mart, Inc. v. Alcoholic Beverages Control Comm'n, supra, quoting FCC v. Beach Communications, Inc., supra at 315-316. "[S]uch line drawing does not violate equal protection principles simply because it 'is not made with mathematical nicety or because in practice it results in some inequality.' " Chebacco Liquor Mart, Inc. v. Alcoholic Beverages Control Comm'n, supra, quoting Dandridge v. Williams, 397 U.S. 471, 485(1970).

Controlling the cost of medical malpractice insurance, and establishing some definitive endpoint for claims of medical malpractice, are legitimate State interests. There is a rational basis for exempting malpractice claims involving foreign objects left in a patient's body from the definitive endpoint that is imposed on other medical malpractice claims. Problems of proof, and changes in the standard of care, do not plague foreign object cases, no matter how long ago the alleged malpractice occurred. The later discovery of the foreign object is, for all practical purposes, proof of some earlier negligence on the part of a health care provider. The Legislature could rationally decide that the risks of stale claims involving that specific type of medical malpractice were so low that they could, as a group,

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safely be exempted from the seven-year statute of repose. By comparison, the passage of time makes other types of malpractice claims difficult to defend (see note 8, supra), such that an absolute deadline measured from the actual date of the act of malpractice may be viewed as appropriate [Note 16].

The plaintiffs argue that our own adoption of the discovery rule for all malpractice cases, and not just for foreign object cases, see Franklin v. Albert, 381 Mass. 611, 620 (1980), now precludes the Legislature from distinguishing such foreign object cases. Nothing in Franklin v. Albert, supra, concerned an equal protection challenge to such a classification. There we were considering whether to apply the discovery rule in determining when a medical malpractice claim accrued. At the time, there was no legislative pronouncement on the issue, id. at 616-617, and we decided to extend to medical malpractice claims the same discovery rule principles that we had applied to other tort claims, id. at 618-619. The defendant in that case suggested that, if we were to adopt such a discovery rule in the medical malpractice area, we should do so only for claims involving foreign objects. We rejected that suggestion because "the principle underlying the discovery rule applies whether the

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malpractice consists of leaving a foreign object in the patient's body or of other negligence in diagnosis or treatment of the patient." Id. at 620. That we declined to draw such a distinction as a matter of common law does not mean that it is irrational for the Legislature to draw that distinction in a subsequent enactment. The rational basis test does not require that we agree with the Legislature's classifications; it only requires that there be some "reasonably conceivable state of facts that could provide a rational basis for the classification." Chebacco Liquor Mart, Inc. v. Alcoholic Beverages Control Comm'n, supra at 723, quoting FCC v. Beach Communications, Inc., supra at 313.

The plaintiffs again suggest that, because this particular legislation affects the rights of children, we should subject it to some higher level of scrutiny than the rational basis test normally applied to an equal protection analysis. We again reject that suggestion. While children face a whole range of conditions and circumstances not faced by adults, they are not a suspect class commanding stricter scrutiny of legislation that affects their interests. Of course, the distinction being drawn in this statute - distinguishing medical malpractice claims involving foreign objects from all other types of medical malpractice claims - has nothing to do with the age of the patient involved, and the statute governing medical malpractice claims of adults contains the identical seven-year statute of repose and the identical exemption for foreign object claims. See G. L. c. 260, s. 4. The classification being challenged is not one based on age; children have not been singled out for any different treatment on this particular subject; and the distinction being challenged is not one that uniquely affects children. That children are governed by the same statute of repose as adults, and, like adults, exempted from that statute if their claim is based on a foreign object left in the body, does not provide any basis on which we would depart from the traditional rational basis analysis [Note 17].

5. Continuing duty. The plaintiffs' final theory is that their

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claim was timely brought because the defendant had a "continuing duty" to treat Matthew such that a breach of that duty continued up until the time they sought out the opinion of another physician. They point first to two Massachusetts cases suggesting that a physician may be under a duty to provide ongoing follow-up care or treatment such that failure to do so can form the basis of a medical malpractice claim. See Shannon v. Ramsey, 288 Mass. 543 (1934); Gray v. Kieger, 27 Mass. App. Ct. 583 (1989). Neither case is apposite. In Shannon v. Ramsey, supra, we declined to find any ongoing duty to treat the patient where one defendant physician had consulted with the patient during only one visit, accompanied by the physician who was actually "in charge of the case." Id. at 547. Rather, a claim of negligence against that defendant had to be predicated solely on what he had done or not done during that one consultation visit, not on any later failure to attend to the plaintiff. Id. at 548.

In Gray v. Kieger, supra, the defendant was aware that an X-ray of the plaintiff's leg following a serious accident showed a suspicious lesion and was aware that the patient needed further X-rays. A follow-up appointment was scheduled, but the patient, not having been advised of the lesion, did not keep that appointment. The defendant then did nothing to contact the patient. Years later, the lesion proved malignant. The Appeals Court held that, on those facts, with a known condition that the physician knew required further follow-up, the physician could be held to have breached his duty of care by not alerting the patient to the presence of the lesion and not contacting the patient when he failed to attend the follow-up visit. Id. at 587. Nothing in Gray v. Kieger, supra, suggests that a physician who believes that the patient has reached the end of his needed treatment has some ongoing duty to that patient that is breached by failure to follow-up with that patient.

The plaintiffs also point to other jurisdictions where statutes

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of limitation or repose have sometimes been tolled while the plaintiff patient continues to receive treatment for the same condition from the defendant physician, even if the specific negligent act occurred earlier during that treatment. See Raynor v. Kyser, 338 Ark. 366, 370-373 (1999); Tullock v. Eck, 311 Ark. 564, 570 (1993); Blanchette v. Barrett, 229 Conn. 256, 274-278 (1994); McDermott v. Torre, 56 N.Y.2d 399, 405-406 (1982); Fonda v. Paulsen, 46 A.D.2d 540 (N.Y. 1975); Schleicher v. Cupelo, 182 Misc. 2d 392, 393-396 (N.Y. Sup. Ct. 1998); Rowntree v. Hunsucker, 833 S.W.2d 103, 106-108 (Tex. 1992).

Assuming, without deciding, that we would adopt some version of this continuing treatment doctrine for purposes of tolling our statute of repose, [Note 18] the doctrine would not cover the present fact pattern. These cases stress that a statute of limitations or repose may be tolled while active treatment is still ongoing, and decline to toll the statute merely because of the ongoing existence of a passive doctor-patient relationship. See, e.g., Raynor v. Kyser, supra at 372 (continuous treatment doctrine requires "active, ongoing medical care and attention beyond the time of a specific negligent act or series of acts"; three and one-half year hiatus between visits defeats claim of continuous treatment); Tullock v. Eck, supra at 571 (patient's continued ingestion of prescribed medication is not "continuing treatment" in the absence of any further contact with defendant physician); Rowntree v. Hunsucker, supra (same); McDermott v. Torre, supra at 405 (continuous treatment doctrine "does not contemplate circumstances where a patient initiates return visits merely to have his or her condition checked"); Schleicher v. Cupelo, supra at 396 (continuous treatment doctrine does not toll statute of limitations "where no apparent treatment is prescribed and

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only monitoring is contemplated"). The plaintiffs rely primarily on Blanchette v. Barrett, supra, in which the court held that the jury could apply the continuous treatment doctrine despite the passage of two and one-half years during which the plaintiff did not see the defendant physician. In that case, however, the defendant had been the plaintiff's primary care physician for over twelve years, during which time there had been repeated regular visits; nothing had occurred to terminate that physician-patient relationship; and, when complications developed, the plaintiff attempted to schedule an appointment with the defendant for further care [Note 19].

Here, the defendant engaged in no ongoing treatment of Matthew after the conclusion of his physical therapy in January, 1990. Nothing further was prescribed for Matthew's condition; there were no visits or scheduled appointments and no expectation that he would need any such visits; and, when complications did emerge, the plaintiffs did not return to the defendant for further care. These facts fall far short of even the most indulgent application of the continuing treatment doctrine. Mere promises by the defendant that he would "provide all necessary follow-up care" and that he "would continue to monitor Matthew's rehabilitation and therapy until Matthew was fully recovered" do not mean that he was still continuing to "treat" Matthew following his last visit and final physical therapy session.

Judgment affirmed.