A statute of limitations may be tolled if the person liable for the claim fraudulently concealed the existence of the cause of action from the plaintiff. 735 ILCS 5/13-215 (West 2002) (formerly Ill. Rev. Stat. 1991, ch. 110, par. 13-215); Foster v. Plaut, 252 Ill. App. 3d 692, 698, 625 N.E.2d 198, 203 (1993). In such a case, the plaintiff has five years after his discovery of the cause of action within which to file suit. 735 ILCS 5/13-215 (West 2002); Foster, 252 Ill. App. 3d at 698, 625 N.E.2d at 203.
735 ILCS 5/13-215. Where a plaintiff claims that the fraudulent concealment of a cause of action has tolled the statute of limitations, the plaintiff must demonstrate that the defendant "made misrepresentations or performed acts which were known to be false, with the intent to deceive the plaintiff, and upon which the plaintiff detrimentally relied." Foster v. Plaut, 625 N.E.2d 198, 203 (Ill.App.Ct. 1993) (collecting cases) (rejecting plaintiff's fraudulent concealment argument and granting defendant's motion to dismiss plaintiff's claims because they were not timely filed). Similar to equitable estoppel, to sustain a fraudulent concealment claim, the plaintiff must show that the defendant made "affirmative acts or representations which are calculated to lull or induce a claimant into delaying filing of his claim, or to prevent a claimant from discovering his claim."
A plaintiff must plead and prove that the defendant made misrepresentations or performed acts which were known to be false, with the intent to deceive the plaintiff, and upon which the plaintiff detrimentally relied. Id. (citing Foster v. Plaut, 252 Ill. App. 3d 692, 699 (1993)). Mere silence on the part of the defendant and failure of claimant to learn of the cause of action do not amount to fraudulent concealment.
"Furthermore, the allegedly fraudulent statements or omissions that form the basis of the cause of action may not constitute the fraudulent concealment in the absence of a showing that they tend to conceal the cause of action." Barratt, 296 Ill. App.3d at 257; Foster v. Plaut, 252 Ill. App.3d 692, 699, 625 N.E.2d 198 (1993); Smith v. Cook County Hospital, 164 Ill. App.3d 857, 862, 518 N.E.2d 336 (1987); Zagar v. Health Hospitals Governing Comm'n of Cook County, 83 Ill. App.3d 894, 898, 404 N.E.2d 496 (1980). While the acts constituting a fraudulent concealment generally occur after the cause of action has accrued, "they may be concurrent or coincident with it, or even precede it, provided they are of such a nature or character as to operate after the time when the cause of action arose and thereby prevent its discovery, and were so designed and intended."
The concealment may also consist of some trick or contrivance or other affirmative action intended to exclude suspicion, prevent inquiry or induce plaintiff to delay filing the claim. Foster v. Plaut, 252 Ill. App.3d 692, 625 N.E.2d 198 (1993); Nogle v. Nogle, 53 Ill. App.2d 457, 464, 202 N.E.2d 683, 687 (1964). Fraudulent misrepresentations which form the basis of the underlying cause of action do not constitute fraudulent concealment under section 13-215 in the absence of a showing that the misrepresentations also tended to conceal the cause of action.
" To establish fraudulent concealment, a plaintiff must "demonstrate that the defendant made misrepresentations or performed acts which were known to be false, with the intent to deceive the plaintiff, and upon which the plaintiff detrimentally relied." Cangemi v. Advocate S. Suburban Hosp., 845 N.E.2d 792, 804 (Ill. App. Ct. 2006) (quoting Foster v. Plaut, 625 N.E.2d 198, 203 (Ill. App. Ct. 1993)). "In addition, fraudulent misrepresentations which form the basis of the cause of action do not constitute fraudulent concealment under section 13-215 in the absence of a showing that the misrepresentations tended to conceal the cause of action." Id. (quoting Foster, 625 N.E.2d at 203).
Where a plaintiff claims that the fraudulent concealment of a cause of action has tolled the statute of limitations, the plaintiff must demonstrate that the defendant "made misrepresentations or performed acts which were known to be false, with the intent to deceive the plaintiff, and upon which the plaintiff detrimentally relied." Foster v. Plaut, 625 N.E.2d 198, 203 (Ill.App.Ct. 1993) (collecting cases) (rejecting plaintiff's fraudulent concealment argument and granting defendant's motion to dismiss plaintiff's claims because they were not timely filed). Further, even where a plaintiff has produced evidence tending to show that the defendant's conduct constituted fraudulent concealment, and which actually prevented discovery of the claim, the limitations period will not be tolled "where the plaintiff could have discovered the cause of action with the exercise of ordinary diligence."
[Citations.]" Foster v. Plaut, 252 Ill. App. 3d 692, 699, 625 N.E.2d 198, 203 (1993). Plaintiffs contend that they adequately pled fraudulent concealment on the part of Dr. Del Castillo to sustain their negligence claim against him and to attribute his negligence as an agent to Advocate Hospital as a principal.
A plaintiff seeking to use fraudulent concealment to toll a limitations period must establish that the defendant made misrepresentations or performed acts which it knew to be false, with the intent to deceive the plaintiff, and that the plaintiff detrimentally relied on those representations or acts. Id. (citing Foster v. Plaut, 252 Ill.App.3d 692, 192 Ill.Dec. 238, 625 N.E.2d 198, 203 (Ill.App.Ct. 1st Dist.1993)). When the plaintiff's substantive claim is fraud, the fraudulent conduct that forms the basis of that claim does not constitute fraudulent concealment absent a showing that the fraudulent conduct tended to deceive the plaintiff and prevent him from discovering his claim.
Plaintiff's claim under the Confidentiality Act is dismissed because it is untimely and because plaintiff has waived his right to assert the protections of the statute. See Foster v. Plaut, 252 Ill. App.3d 692, 702, 625 N.E.2d 198, 205 (1st Dist. 1993). Under the Confidentiality Act, a plaintiff must assert a cause of action "within two years of the date of discovery" of his right to recover for any allegedly improper release of his psychiatric records. Foster, 252 Ill.App.3d at 702, 625 N.E.2d at 205.