Morrison Mahoney Partners Tory Weigand and John Babcock recently prevailed before the Appeals Court, which affirmed the dismissal of the plaintiff’s Complaint by the Middlesex Superior Court.

The plaintiff filed his original Complaint alleging medical malpractice against our client, an orthopedic surgeon, in the performance of an elective surgical procedure on his knee. The original complaint was dismissed for violation of the statute of repose for medical malpractice suits.

The plaintiff then filed a second Complaint alleging intentional misrepresentation and fraudulent concealment, claiming that the surgeon did not disclose aspects of the surgery which were only discovered by the plaintiff years later when his pain resurfaced. Our motion to dismiss the second complaint was allowed by the Superior Court based on the doctrine of res judicata. The Court held that the allegations set forth in the plaintiff’s second Complaint arose from the same set of operative facts as his first complaint, and were barred where the plaintiff failed to raise these claims in his original complaint. In affirming dismissal, the Court confirmed that a claim for medical malpractice will not survive when recast under a different legal theory to survive the statute of repose.