Mass Lawyers Weekly Feature

Ruling Allows Pre-Repose Evidence in Malpractice Case

Attorney Joseph Russo recently obtained a favorable trial court ruling in a medical malpractice case before Judge David A. Deakin of the Middlesex Superior Court. The facts of the case involved the alleged failure to diagnose the patient’s small bowel cancer. The issue was whether the plaintiff was able to introduce medical evidence at trial that fell outside of the seven-year Statute of Repose.

The Statute of Repose is distinct from the Statute of Limitations. General Law – Part III, Title V, Chapter 260, Section 4 The Statute of Limitations bars medical negligence claims from being filed later than three years from the physician’s deviation from the Standard of Care. The exception to the Statute of Limitations is the Discovery Rule. If the claimant is not able to reasonably discover the deviation from the standard of care – for example, an early-stage cancer goes undetected – the three-year Statute of Limitations runs from the date of discovery. However, the Statute of Repose places a hard cap on the time that a claimant may bring a case. Despite the Discovery Rule, under the Statute of Repose, a medical negligence claim may not be brought later than seven years from the deviation from the standard of care.

But the Statute of Repose bars untimely claims, not evidence. In other words, if there is an independent deviation from the standard of care that falls within the seven-year repose period, the claimant can still introduce medical evidence that falls outside of the seven-year repose period. Why? To provide background evidence and context.

SJC Bellmar v. Moore Decision

In arguments, Attorney Russo relied on the seminal 2025 Supreme Judicial Court decision Bellmar v. Moore, SJC – 13643. Bellmar v. Moore :: 2025 :: Massachusetts Supreme Judicial Court Decisions :: Massachusetts Case Law :: Massachusetts Law :: U.S. Law :: Justia The Bellmar decision dealt with a motion to dismiss a timely filed medical malpractice claim. The claim could independently stand on medical evidence within the repose period. Notwithstanding, it relied, in part, on pre-repose medical evidence. The motion was denied and the case was remanded back to the trial court. However, the Bellmar case was resolved before the trial court was able to determine how the pre-repose medical evidence could practically be used.

Trial Court Ruling

Judge Deakin’s ruling in Attorney Russo’s case provides a road map for how pre-repose medical evidence can be practically used. Case Details – Massachusetts Trial Court N5 The evidence may be introduced to provide background and context with the caveat that a strongly worded curative instruction be read to the jury that they are not permitted to consider if the physician was negligent outside of the seven-year repose period as a matter of law.

The case was featured in Massachusetts Lawyers Weekly. Ruling allows pre-repose evidence in malpractice case It is anticipated that the ruling is going to have far reaching implications in multi-year failure to diagnose medical malpractice fact patterns where there are several potential deviations from the standard of care.