FRANCOIS AUGUSTIN & Another 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

25-P-34

FRANCOIS AUGUSTIN1 & another2

vs.

BOSTON MEDICAL CENTER & others.3

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiffs filed a medical malpractice complaint in the

Superior Court alleging that Boston Medical Center (BMC) and

certain individual medical providers (together, defendants) were

negligent in failing to timely diagnose and treat their

daughter. On the defendants' motion for summary judgment, the

judge dismissed the complaint, holding that it was time barred

and that the plaintiffs failed to meet their burden to show the

1 Individually and on behalf of his minor child.

2 Judith Delphin, individually and on behalf of her minor
child.

3Tehnaz Boyle, Sarabeth Broder Fingert, Jennifer Fiore,
Eileen Keneck, Katherine Nash, Stephen Pelton, Tyler Rainer, and
Michael Stratton.
discovery rule applied and tolled the statute of limitations.

This appeal followed. We affirm.

Background. According to their complaint, on August 17,

2017, the plaintiffs took their six year old child to the

emergency department at BMC for a fever and rash after being

treated at home with acetaminophen and ibuprofen. The child was

eventually admitted for observation. A differential diagnosis

of Stevens-Johnson Syndrome (SJS), a rare disease, was made.

The child's condition worsened, and on August 18, 2017, she was

transferred first to Massachusetts General Hospital, and then,

on August 28, 2017, to Shriners Children's Boston (Shriners).

The child was discharged from Shriners on September 29, 2017,

where it was determined that she was likely allergic to

ibuprofen.4

In their complaint, the plaintiffs alleged that ibuprofen

caused the child to develop SJS and that the defendants were

negligent on August 17 and 18, 2017, in failing to timely

diagnose SJS and discontinue the use of ibuprofen that had been

started prior to her admission to BMC.

4 The child was ultimately diagnosed with toxic epidermal
necrolysis, a rare form of SJS caused by medication, including
ibuprofen.

2
On October 4, 2017, an attorney5 sent a letter to Shriners

on behalf of the child requesting medical records after being

retained by the plaintiffs "to investigate a potential claim for

personal injury damages." Included with the letter was an

authorization for the release of medical records, dated

September 10, 2017, and signed by the plaintiffs. On November

3, 2017, the attorney sent a similar letter to BMC with the

accompanying signed authorization, dated September 10, 2017.

Shriners complied with the request and sent the records by

certified mail on November 3, 2017. Later, Shriners produced,

among other updated records, a "progress note" from a November

15, 2017 outpatient appointment that read, "Dad says there is an

uncle [who] wants medical records as he is helping with a legal

case." Within thirty minutes of that appointment, the

plaintiff-father signed a second authorization for the release

of updated Shriners records, citing "legal issues" as the reason

for disclosure.

At the time she became ill, the child was living with her

grandmother. The grandmother testified at her deposition that

5 The firm with which the attorney was associated advertises
that it is a nationally recognized law firm that protects
patient consumers against "pharmaceutical giants" and "medical
professionals who harm patients through carelessness." The
attorney similarly advertises that he has experience in
litigation related to medical devices, pharmaceuticals, and
medical malpractice.

3
prior to being taken to BMC, the child had no rash on her body,

and her skin was clear. She testified that the child's

condition changed at the hospital, and when asked, the

plaintiffs told her that it was because of a reaction to a

medication that the child had been given.

At his deposition, the plaintiff-father admitted that he

had an understanding that the cause of the child's SJS was

ibuprofen as of the time that she was transferred to Shriners.

He testified that he knew that the child had been given

ibuprofen "several times" at BMC, and that he saw "her body

starting to react [to the ibuprofen], and it was like open sores

in her body." He further testified that "[b]ecause of the way

[he] learned the cause of the sickness," he talked to his uncle

about retaining an attorney. He did so "[b]ecause of the way

the situation appeared."

On February 24, 2020, the plaintiff-father signed an

additional authorization to release the child's BMC records to

his attorneys. Attached to the request was a document entitled

"proof of treatment," that contained a copy of the discharge

summary from BMC generated on November 17, 2017. The discharge

summary bore a "received" stamp dated March 23, 2018, indicating

that the BMC records were in possession of someone acting on

behalf of the plaintiffs as of that date. BMC received the

records request on March 17, 2020.

4
The plaintiffs filed a complaint on June 17, 2021. In

response, the defendants filed a motion to dismiss, arguing that

the three-year statute of limitations barred all claims.

Thereafter, the plaintiffs moved to amend their complaint; the

motion was allowed over objection.6 The amended complaint was

filed on February 23, 2022. The defendants then filed a motion

requiring the plaintiffs to post a bond for failure to timely

file an offer of proof, which the plaintiffs opposed. The

motion was allowed; the plaintiffs posted the bond, but no offer

of proof was ever filed. In February 2024, the defendants moved

for summary judgment pursuant to Mass. R. Civ. P. 56, 365 Mass.

824 (1974), on the grounds that the plaintiffs' claims were time

barred. See G. L. c. 231, § 60D;7 G. L. c. 260, § 4.8 In

6 The judge denied the defendants' motion to dismiss,
concluding that the plaintiffs' claim of delayed discovery
raised a disputed issue of material fact that could toll the
statute of limitations and render the complaint timely "should
[the] plaintiff[s] meet [their] burden under the discovery
rule." She ruled that the burden shifted to the plaintiffs to
prove that the discovery rule applied to their claim.

7 General Laws c. 231, § 60D, provides, in relevant part,
that "any claim by a minor against a health care provider
stemming from professional services or health care rendered,
whether in contract or tort, based on an alleged act, omission
or neglect shall be commenced within three years from the date
the cause of action accrues."

8 General Laws c. 260, § 4, provides, in relevant part, that
"[a]ctions of contract or tort for malpractice, error or mistake
against physicians, surgeons, . . . [and] hospitals . . . shall
be commenced only within three years after the cause of action
accrues."

5
response, the plaintiffs argued that there was a dispute of

material fact as to when the plaintiffs understood that the

child's injuries were caused by the defendants, and that a

reasonable jury could find that the complaint was timely. After

a hearing, the judge allowed the motion, concluding that the

complaint was filed after the expiration of the governing

statutes of limitations and that the plaintiffs failed to

satisfy their burden of showing the applicability of the

discovery rule. Specifically, the judge found that the

plaintiffs had not met their burden of proving an actual lack of

knowledge of causation prior to March 2020, and that they failed

to show that an objectively reasonable person would have

similarly lacked such knowledge until sometime after March 2020.

This appeal followed.

Discussion. 1. Legal standards. We review a grant of

summary judgment de novo. See Miller v. Cotter, 448 Mass. 671,

676 (2007). The question "is whether, viewing the evidence in

the light most favorable to the nonmoving party, all material

facts have been established and the moving party is entitled to

a judgment as a matter of law." Augat, Inc. v. Liberty Mut.

Ins. Co., 410 Mass. 117, 120 (1991). See Mass. R. Civ. P.

56 (c), as amended, 436 Mass. 1404 (2002).

"A cause of action for medical malpractice accrues when the

plaintiff learns, or reasonably should have learned, that he or

6
she was harmed by the defendant's conduct." Lindsay v. Romano,

427 Mass. 771, 774 (1998). It is "not require[d] that the

plaintiff[s] know or have reason to know that the defendant[s]

violated a legal duty to the plaintiff[s], but only that [they]

knew or had reason to know that [they] had been harmed by the

defendant[s'] conduct." Bowen v. Eli Lilly & Co., 408 Mass.

204, 206 (1990). "The plaintiff[s] need not know the full

extent of the injury before the statute [of limitations] starts

to run." Id. at 207. "The important point is that the

[statute] starts to run when an event or events have occurred

that were reasonably likely to put the plaintiff[s] on notice

that someone may have caused [their] injury." Id. "Reasonable

notice that a particular product or a particular act of another

person may have been a cause of harm to [plaintiffs] creates a

duty of inquiry and starts the running of the statute of

limitations." Id. at 210.

"Where summary judgment is sought on the basis of a statute

of limitations, once the defendant establishes that the time

period between the plaintiff's injury and the plaintiff's claim

exceeds the applicable limitations period, the burden is on the

plaintiff to prove her claim falls within the discovery rule."

Lindsay, 427 Mass. at 773-774. The purpose of the discovery

rule is to "determin[e] when a cause of action accrues, and thus

when the statute of limitations starts to run." Bowen, 408

7
Mass. at 205. When the plaintiffs invoked the discovery rule,

the burden shifted to them to "prov[e] both an actual lack of

causal knowledge and the objective reasonableness of that lack

of knowledge." Doe v. Creighton, 439 Mass. 281, 283 (2003)

(applying reasonable person analysis in context of G. L. c. 260,

§ 4C claim, citing Riley v. Presnell, 409 Mass. 239, 243-247

[1991]). While this determination is often a question of fact,

the plaintiffs must still prove that the summary judgment record

establishes a lack of actual causal knowledge and that their

failure to make the connection between the defendants' conduct

and the injuries claimed was objectively reasonable. See Doe,

supra at 283-285, citing Riley, supra at 240, 246. As discussed

below, this they did not do.

2. Analysis. The plaintiffs argue that the judge erred in

allowing the defendants' motion because there is a genuine issue

of material fact as to when the plaintiffs knew or should have

known that the defendants' conduct caused the child's injuries.9

9 While the plaintiffs also argue that their education,
background, and knowledge of the legal system bore on the
question of when they were reasonably on notice of their claims
and created a triable issue of fact, our case law is clear that
"[p]ersonal traits unrelated to the tort, such as cultural
background and educational history, are not relevant to the
reasonableness inquiry." Doe, 439 Mass. at 284. See Riley,409
Mass. at 245 ("Individual variations in judgment, intellect, or
psychological health which are unrelated to the complained-of
conduct are not considered" in determining when plaintiff should
reasonably have known of cause of action for medical
malpractice).

8
In the light most favorable to the plaintiffs, the undisputed

facts establish that as of November 15, 2017, the plaintiffs

were reasonably on notice that ibuprofen was a potential cause

of the child's SJS and that it had been given to her at BMC.

They saw the defendants administer ibuprofen and witnessed the

child's negative reactions to it. At his deposition, the

plaintiff-father admitted that he had an understanding that the

child's SJS was caused by ibuprofen when she was transferred

from BMC to Shriners in August 2017, that the child had an

allergic reaction to ibuprofen, and that BMC had administered

ibuprofen to the child "several times." He also described

seeing changes to the child's body when she was administered

ibuprofen. All of this, the plaintiff-father testified, made it

"necessary" to seek legal counsel. And the child's grandmother

testified that she was told by the plaintiff-mother that the

child's condition was a result of medication given at BMC.

The summary judgment record also established that an

attorney acting on the plaintiffs' behalf began investigating a

personal injury claim in September or October 2017. This

included obtaining medical records with releases signed by the

plaintiffs. BMC provided records that were received by someone

on behalf of the plaintiffs in November 2017. From this, we

conclude that at a minimum, the plaintiffs were on notice of the

9
harm caused by BMC's administration of ibuprofen as early as

November 2017.

Moreover, the plaintiffs failed to meet their burden under

the discovery rule. "A reasonable person who has been subjected

to the conduct which forms the basis for the plaintiff's

complaint," Riley, 409 Mass. at 245, would have been on notice

that BMC's administration of ibuprofen may have been related to

the child's injury. The plaintiffs proffered no evidence as to

what actions if any were taken between November 2017 and March

2020, or the objective reasonableness of those actions or

inactions after November 2017, when the statute of limitations

began to run. Accordingly, the discovery rule does not apply

and there was no error in the entry of a judgment of dismissal.

See Malapanis v. Shirazi, 21 Mass. App. Ct. 378, 383 (1986) ("On

an appropriate record, summary judgment may be granted on the

question whether a particular statute of limitations has run").

Judgment affirmed.

By the Court (Blake, C.J.,
Vuono & Neyman, JJ.10),

Clerk

Entered: May 4, 2026.

10 The panelists are listed in order of seniority.

10