Fraudulent Concealment Prevents Physician from Using Statute of Repose Defense
News: A patient presented several times to the same hospital with complaints of abdominal pain. Multiple CT scans revealed a kidney mass. A physician was informed of the radiology recommendation to follow up, but the patient was not informed of the mass until 12 years after the initial discovery. The mass eventually was diagnosed as cancerous, and the patient later passed away.
The patient initiated a lawsuit before she passed, alleging malpractice and fraudulent concealment by the defendant care providers. The care providers denied liability and argued the suit should be barred because it was untimely. A trial court initially agreed, but an appellate court reversed, determining a genuine issue about the alleged fraudulent concealment sufficient to defeat the medical professionals’ defense.
Background: In 2004, a woman underwent a CT scan that revealed a kidney mass, but neither the patient nor her family were notified of the mass. In 2006, the patient sought treatment at the same hospital for a urinary tract infection. Another CT scan was taken and the mass was observed, yet no information was provided to the patient or her family.
On Oct. 1, 2009, the patent was admitted to the same hospital’s emergency department (ED) with a complaint of abdominal pain. She was examined by a physician and underwent a CT scan. The physician initially claimed the scan looked normal, but revised that diagnosis hours later. The physician asked the patient to return to the facility as further review caused the medical professionals to conclude “not everything is OK.” When the patient returned, she was diagnosed with colitis and received a prescription for an antibiotic before going home again. The CT scan taken at this visit showed the kidney mass had grown since the 2004 and 2006 scans, yet the patient still was not informed about the potentially problematic mass. The discharge instructions from the hospital did not mention the kidney mass.
Two days later, the patient returned to the ED with the same complaint of abdominal pain. Another CT scan was performed. This time, the physician was informed of the radiology recommendation to follow up on the mass to ensure it was not cancerous. On Oct. 6, 2009, the same consulting physician wrote a letter to the patient’s primary physician detailing his treating her for colitis, and failed to mention the kidney mass. After two months, the consulting physician discharged the patient from his treatment.
On April 24, 2016, the patient was admitted to the same hospital’s ED due to a broken arm, and yet another CT scan revealed the kidney mass. The patient was referred to a different hospital for treatment of her arm. During discharge from the original hospital, a nurse mentioned the kidney mass to the patient, which was the first time the patient had ever been informed of the mass that was initially observed in 2004. Later that year, the patient was diagnosed with metastatic renal cell carcinoma. She passed away approximately three years later.
Before her death, the patient filed a lawsuit against multiple individuals and entities, including the initial hospital and physician. Her daughters substituted after their mother passed. The defendants brought a motion for summary judgment prior to trial, arguing the patient’s action was barred for being untimely under what is known as a statute of repose. The defendants argued the alleged negligence occurred in 2009, but the litigation was initiated in 2018. Based on a state statute, litigation for personal injury or wrongful death against a physician must be brought within six years.
The patient’s estate claimed their case fell within an exception to this requirement based on the medical providers’ fraudulent concealment of the negligence, since the patient had not been informed of the mass until 2016. The trial court granted the defendant medical providers’ motion, and the patient’s estate appealed. The appellate court disagreed with the trial court and found a genuine issue about the alleged fraudulent concealment sufficient to defeat the defense. The matter was sent back to the trial court for further proceedings.
What this means to you: This case reveals the importance of providing patients with relevant information and documenting the provision of information in a timely fashion. In this case, the negligence focused on the physician’s failure to inform the patient about the kidney mass and failure to diagnose the cancer. Patients must be allowed to make fully informed decisions. When patients are not fully informed of material information, such as an abnormal mass, patients are deprived of that ability. The patient in this matter claimed she was not informed of the mass until 2016, even though it was initially observed in 2004. That is a huge gap of time, during which multiple scans were taken. Multiple care providers must have seen the images revealing the mass, yet the patient was never informed.
Unfortunately, this set of facts is an all-too-familiar scenario that results in medical malpractice actions. A patient presents to a physician’s office or ED on multiple occasions with the same complaints, and the patient is discharged with a convenient and uncontroversial diagnosis (in this case, colitis). But such a diagnosis and discharge might not be sufficient, particularly when the patient reappears with the same complaints after undergoing treatment for the initial diagnosis. Upon presentation the second or third time, the applicable standard of care might require the physician or care provider to re-evaluate the initial diagnosis and perform additional testing to determine whether there is a different diagnosis; perhaps a rarer condition is at issue, or additional imaging could provide new information to better diagnose the patient.
Consultation with other physicians or other departments could provide useful insight as well. Obtaining a second or third opinion can allow another individual to identify something the initial physician might have missed — or may simply confirm the initial diagnosis, in which case the initial physician has gathered a useful level of protection in the event of a subsequent malpractice action. The physician in this case was even informed of the radiology recommendation to follow up. Reviewing imaging with a radiologist would have undoubtedly helped the physician in this matter to understand the proper diagnosis and to timely diagnose the patient’s cancer.
Beyond actually informing patients of necessary information, it is important to accurately and thoroughly document what the patient has been told, and when. Providers must maintain clear records not only to facilitate treatment, but also to protect against claims of malpractice wherein a patient claims he or she was not informed. One challenge of these circumstances is precisely these large gaps of time. It takes years for a medical malpractice action to proceed through the legal process, and even the beginning of that process could be several years after the underlying treatment or injury.
By the time four or five years have passed, it is natural for memories to fade. Keeping a written record — ideally, signed by the patient confirming he or she received the information — is extremely valuable to prove the physician or care provider informed the patient of material facts, or of risks associated with a procedure. It may seem tedious or difficult to carve time out from treatment to maintain and document events, but keeping a regular practice of documentation and obtaining a patient’s informed written consent might prove to be the critical factor in defending against a malpractice action.
Another important takeaway from this case relates to legal provisions barring old matters, which are known as statutes of limitations and statutes of repose. While there are differences between the two, the function is similar: If applied, the statute prevents liability because the matter should have been brought within a specified period. These statutes vary from state to state, but all states have versions of these to encourage parties to act within the set period and to provide some certainty to individuals that they will not be pursued 10 or 20 years later.
Statutes of repose, such as the one raised in this case, are particularly powerful defensive tools because the statute bars a late claim even if the plaintiff was not injured or did not know he or she was injured at the time. In this case, the underlying malpractice occurred almost 10 years before the patient filed suit, but the patient was unaware of the malpractice because, according to the patient, the physician concealed his negligence. According to the court, this concealment was particularly evident through the physician’s letter to the patient’s primary care physician detailing the treatment for colitis, yet did not mention the kidney mass.
Statutes of limitations and statutes of repose are complete defenses, even if the physician or care provider’s actions were negligent and the patient was injured because of that negligence. The law encourages parties to act rather than sit on their rights. An injured patient must act within the prescribed period — often two to four years — or risk losing their right to file suit. These statutes have nuances, exceptions, and other methods for delaying their application, but it is worthwhile for physicians and care providers to determine their applicability because a successful statute of limitations defense can provide an early defense victory and eliminate the need for trial.
REFERENCE
- Decided Oct. 6, 2021, in the Court of Appeals of Iowa, Case Number 20-1124.
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