Opinion
No. 5-937 / 04-1801
Filed March 1, 2006
Appeal from the Iowa District Court for Wayne County, John D. Lloyd, Judge.
Plaintiffs-appellants appeal from the summary judgment ruling that dismissed their claims against the defendant-appellee. AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
Gary Mattson and Gregory Landry of Lamarca Landry, P.C., Des Moines, for appellants.
Stacie Codr and Michael H. Figenshaw of Bradshaw, Fowler, Proctor Fairgrave, P.C., Des Moines, for appellee Garber.
Susanna Brown of Rouwenhorst Brown, West Des Moines, for defendant Finneran.
Heard by Zimmer, P.J., and Miller and Hecht, JJ.
Plaintiffs Jay and Marge Grismore appeal from a district court summary judgment ruling that dismissed their medical negligence and loss of spousal consortium claims against defendant Keith Garber, M.D. Because the record contains disputed issues of material fact regarding whether Dr. Garber should be equitably estopped from asserting a statute of limitations defense to most of the Grismores' claims, we reverse the summary judgment ruling in part, and remand this matter for further proceedings.
I. Background Facts and Proceedings.
In April 1996 Jay Grismore experienced blood in his stool. Grismore sought treatment from his family physician, Keith Garber. Following a "colon x — ray," radiologist Mary Christensen reported an impression of rectal carcinoma and advanced diverticular disease. Dr. Garber reviewed the report and referred Grismore to John Finneran, a general surgeon.
Dr. Finneran suggested that Grismore undergo an abdominal perineal resection and advised Grismore that, as a result of the surgery, "he would probably end up with a colostomy." Dr. Finneran also referred Grismore to oncologist Loren Brown to see if a course of radiation and chemotherapy was a viable alternative. Dr. Brown recommended biopsy confirmation of Grismore's cancer diagnosis and additional studies, and conveyed his recommendations to Dr. Finneran. No preoperative biopsy was performed.
On May 14, 1996, Grismore underwent an abdominal perineal resection with permanent colostomy. The surgery was performed by Dr. Finneran with Dr. Garber assisting. A post-surgical pathology report dated May 16, 1996, stated the tumor removed from Grismore was a precancerous lesion, but was not malignant. There is some dispute as to what Dr. Finneran and Dr. Garber told Grismore about the nature of the tumor.
According to Grismore, neither doctor told him the results of the pathology report or the fact the tumor was not malignant. He asserts that, following the surgery, he asked Dr. Finneran and Dr. Garber whether he would require chemotherapy and radiation and that they informed him the treatments were unnecessary because they "got it all." Dr. Garber admitted he did not inform Grismore of the pathology report results but noted Grismore had spoken with Dr. Finneran both before and after he left the hospital, and "[o]rdinarily that's one of the things a surgeon does, is go over the pathology report with the patient." Accordingly to Dr. Finneran, "I think the way I put it to him was . . . the path report was negative, or something like that." Dr. Finneran did not, however, recall telling Grismore that he never had cancer, as Dr. Finneran was not convinced Grismore was in fact cancer-free at the time of the surgery.
In 2002 Grismore consulted Sue Beckwith, a colorectal surgeon, regarding a hernia. On April 10, 2002, Dr. Beckwith informed Grismore that he had not had rectal cancer in 1996 and that the abdominal perineal resection was unnecessary.
Grismore and his wife Marge filed suit against Dr. Finneran in September 2003, amending their petition in October 2003 to include Dr. Garber as a defendant. The petition alleged the defendants were negligent in several particulars, including failure to order either a preoperative ultrasound or preoperative biopsy, performing unnecessary radical surgery, failing to timely and accurately diagnose Grismore, and fraudulently concealing the fact that Grismore did not have cancer. Grismore sought damages for medical expenses, loss of function, and pain and suffering; his wife sought damages for loss of consortium.
After filing answers denying the Grismores' allegations, the defendants sought summary judgment. They asserted the petition should be dismissed as it was filed after the applicable statute of limitations had run. The plaintiffs resisted the motion, contending the doctrine of fraudulent concealment and/or the doctrine of equitable estoppel tolled the running of the statute of limitations on their claims. The district court granted the defendants' motion and dismissed the petition.
The plaintiffs appealed from the dismissal of their claims against both defendants, but have since dismissed their appeal as to the claims against Dr. Finneran. We accordingly proceed to review the propriety of granting summary judgment on the claims against Dr. Garber only. The issue on appeal has become whether our supreme court's decision in Christy v. Miulli, 692 N.W.2d 694 (Iowa 2005), requires that the district court's ruling granting summary judgment be reversed and this case remanded for trial.
II. Scope and Standards of Review.
We review a district court summary judgment ruling for the correction of errors at law. Scholte v. Dawson, 676 N.W.2d 187, 188 (2004). Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Iowa R. Civ. P. 1.981(3). All facts are viewed in the light most favorable to the party opposing the motion for summary judgment. Bearshield v. John Morrell Co., 570 N.W.2d 915, 917 (Iowa 1997). "[W]e will indulge in every legitimate inference that the evidence will bear in an effort to ascertain the existence of a fact question. A fact question is generated if reasonable minds can differ on how the issue should be resolved." Walker v. Gribble, 689 N.W.2d 104, 108-09 (Iowa 2004) (citations omitted).
III. Discussion.
The statue of limitations applicable to the plaintiff's claim is found at Iowa Code section 614.1(9)(a) (2003):
[T]hose [actions] founded on injuries to the person or wrongful death against any physician and surgeon . . . arising out of patient care, [must be brought] within two years after the date on which the claimant knew, or through the use of reasonable diligence should have known, . . . of, the injury or death for which damages are sought in the action, whichever of the dates occurs first, but in no event . . . more than six years after the date on which occurred the act or omission or occurrence alleged . . . to have been the cause of the injury or death.
For the purpose of section 614.1(9)(a), "injury" means the physical harm suffered by the plaintiff, and not the wrongful act that caused the physical harm. Scholte, 676 N.W.2d at 193. Thus, the statute required the Grismores to bring their claims within six years of the April 1996 surgery. Because they did not do so, their claims are barred unless the doctrine of fraudulent concealment can be applied. This doctrine, long recognized in Iowa, is an exception to the general rule that a statute of limitations begins to run when the tort is committed. See, e.g., District Twp. of Boomer v. French, 40 Iowa 601, 603-04 (1875).
Our supreme court first recognized that the common-law doctrine of fraudulent concealment survived the adoption of section 614.1(9) in Koppes v. Pearson, 384 N.W.2d 381 (Iowa 1986). There, the court stated:
The person relying on fraudulent concealment to avoid a statute of limitations ordinarily has the burden to prove that the defendant affirmatively concealed the facts on which the plaintiff would predicate its cause of action. Our cases also recognize, however, that the requirement of affirmative acts of concealment may be relaxed where a confidential or fiduciary relationship exists between the person concealing the cause of action and the aggrieved party. The close relationship of trust and confidence between patient and physician gives rise to duties of disclosure which may obviate the need for a patient to prove an affirmative act of concealment. If fraudulent concealment is established, the statute of limitations does not commence to run until the plaintiff discovers, or in the exercise of reasonable care should discover, the basis for the cause of action.
Koppes, 384 N.W.2d at 386.
The court later clarified that
[d]espite this `special relationship,' [between physician and patient] which calls for a reduced level of proof of fraudulent concealment . . ., the acts of concealment must nevertheless be independent of the alleged acts relied on to establish liability. . . . There must also be a temporal separation of the acts of negligence and the acts of alleged concealment; the concealment must take place after the alleged acts of negligence occurred.
Van Overbeke v. Youberg, 540 N.W.2d 273, 276 (Iowa 1995).
In its summary judgment ruling, the district court recognized that Koppes and its progeny were the law at the time the Grismores filed their petition and stated "[t]here is little doubt that the plaintiffs have alleged facts that, if believed by the jury, would entitle them to avoid the statute of limitations . . . on grounds of fraudulent concealment, if this case were to be decided under the law as it existed when the case was filed." However, the court noted that several months after the plaintiffs' petition was filed, our supreme court handed down its opinion in Schlote v. Dawson, 676 N.W.2d 187 (Iowa 2004).
In Schlote, the court reaffirmed that the doctrine of fraudulent concealment worked as an exception to the running of the statute of limitations, but appeared to make one critical change to the doctrine. Having determined that "injury" as used in section 614.1(9) should be interpreted as the physical harm rather than the wrongful act, the court stated "the plaintiff in a medical malpractice case must show the defendant did some affirmative act to conceal the injury rather than the cause of action." Schlote, 676 N.W.2d at 195.
Focusing on this language, the district court noted the injury in this case, the abdominal perineal resection, was known to the plaintiffs in 1996, and the defendants did nothing and in fact could have done nothing to conceal the injury. The district court accordingly concluded the doctrine of fraudulent concealment could not be applied to assist the plaintiffs. The court also declined to apply the doctrine of equitable estoppel, concluding that to do so would "create an exception to the statute of limitations not previously recognized by the Iowa Supreme Court or the Iowa Legislature," and that in light of Schlote, "[i]t seems unlikely that the Iowa Supreme Court . . . would now adopt a wholly new exception to the statute of limitations . . . [or] apply [it] . . . to the entirety of the cause of action. . . ."
However, after this matter was appealed but before oral argument was held, the supreme court handed down its decision in Christy v. Miulli, 692 N.W.2d 694 (Iowa 2005). In Christy the court recognized that the doctrine of fraudulent concealment, while in fact no more than a form of equitable estoppel, had over the years evolved into a hybrid of equitable estoppel and the discovery rule. Christy, 692 N.W.2d at 700-01. The court clarified that, as a form of equitable estoppel, fraudulent concealment does not toll the statute of limitations, but estops a defendant from raising a statute of limitations defense. Id. at 701. The court noted that, as it recognized in Koppes, section 614.1(9) was enacted by the legislature to limit application of the discovery rule, and in no way targeted the "separate and distinct" common-law doctrine of fraudulent concealment. Id. at 710-02. The court accordingly withdrew its "dicta in Schlote that a plaintiff relying on fraudulent concealment must show the defendant concealed the injury giving rise to the plaintiff's claim," but reaffirmed "the continuing validity of the balance of [the] opinion. . . ." Id. at 702 n. 1 (citation omitted).
The supreme court stated:
The foundational elements of equitable estoppel are well established:
(1) The defendant has made a false representation or has concealed material facts; (2) the plaintiff lacks knowledge of the true facts; (3) the defendant intended the plaintiff to act upon such representations; and (4) the plaintiff did in fact rely upon such representations to his prejudice.
With respect to the first element, a party relying on the doctrine of fraudulent concealment must prove the defendant did some affirmative act to conceal the plaintiff's cause of action independent of and subsequent to the liability-producing conduct. Furthermore, the plaintiff's reliance must be reasonable. The circumstances justifying an estoppel end when "[the] plaintiff [becomes] aware of the fraud, or by the use of ordinary care and diligence should have discovered it." At that point the plaintiff must file suit "within a period of time not exceeding the original statutory period applicable to the particular cause of action." The plaintiff bears the burden to prove equitable estoppel by a clear and convincing preponderance of the evidence.
Id. at 702 (citations omitted).
In light of Christy, and our obligation to the view the record in the light most favorable to the Grismores, we agree the summary judgment ruling must be, in large part, reversed. When we indulge every legitimate inference the record will bear, as our standard of review requires us to do, we must conclude the Grismores did put forth disputed issues of material fact sufficient to send the question of fraudulent concealment to the jury.
A. False Representation or Concealment.
Dr. Garber focuses on the "affirmative act" language in Christy and asserts the summary judgment record is insufficient to demonstrate any affirmative act of concealment on his part. In response, the plaintiffs argue Dr. Garber's statement that the surgery "got it all" is subject to more than one interpretation. They assert that, given the context, a reasonable person would assume the doctors were referring to Grismore's cancer. Dr. Garber asserts that it is just as reasonable to interpret "got it all" as a true statement the doctors successfully removed all of the tumor, which in no way spoke to whether or not the tumor was itself cancerous. Viewing the record in the light most favorable to the plaintiffs, which includes the context in which the statement was made, we conclude a reasonable juror could interpret the statement as an affirmative attempt to avoid informing Grismore that his tumor was not malignant and the abdominal perineal resection was therefore unnecessary.
Moreover, we are not convinced an affirmative act was required. Christy approved and reaffirmed the bulk of the Scholte opinion, including the long-standing principle that, while a plaintiff must generally show an affirmative act of concealment, the physician-patient relationship "gives rise to duties of disclosure which may obviate the need for a patient to prove an affirmative act of concealment." Schlote, 676 N.W.2d at 195 (citation omitted). It accordingly appears that, in a medical malpractice context, the first element of fraudulent concealment can be met by either an affirmative act of concealment or a breach of a duty to disclose pertinent information. Under either standard, the record contains issues of disputed material fact on the question of whether Dr. Garber made a false representation or failed to disclose a material fact.
In addition, as required under Christy, Dr. Garber's post-operative statement was independent of and occurred subsequent to most of the acts of negligence alleged in the petition, including failure to order a preoperative ultrasound or biopsy, performing unnecessary surgery, and failing to accurately diagnose Grismore's condition. However, the petition also asserts as a ground of negligence Dr. Garber's alleged concealment of the fact that Grismore did not have cancer. This is the same act as, rather than an act independent of and subsequent to, the alleged fraudulent concealment. As such, Dr. Garber may assert that a statute of limitations defense applies to this particular claim.
B. Knowledge of the True Facts.
The record contains evidence the Grismores did not have actual knowledge of the results of the pathology report until April 2002, and nothing in the record indicates the Grismores should have discovered the report results prior to this point in time. Thus there is, at a minimum, a disputed fact question as to whether the second element of fraudulent concealment is satisfied. If the jury determines the Grismores were not aware of the true facts until April 2002, then their 2003 petition was filed within the statutory period.
C. Intent the Plaintiff Act.
A closer question is presented on the requirement that Dr. Garber intended the plaintiffs to act upon his alleged misrepresentations or concealments. The Grismores contend that intent can be reasonably inferred under the circumstances — doctors who failed to properly confirm the cancer diagnosis prior to an unnecessary surgery and then concealed their mistake intended the plaintiffs to believe Grismore did have cancer and thus avoid a malpractice suit. Dr. Garber counters that this alone is not sufficient evidence of intent to deceive, because the pathology results were noted in Dr. Garber's post-surgical medical records; Dr. Garber properly left any discussion of the pathology report to the surgeon, Dr. Finneran; and Dr. Finneran opined the pathology report did not necessarily prove Grismore was cancer-free at the time of the surgery.
While the facts recited by Dr. Garber may well allow him to succeed on this point at trial, we must view the record in the light most favorable to the Grismores, including any and all legitimate inferences the record will bear. When we do so, we must conclude that a reasonable juror could infer Dr. Garber (1) intended the Grismores to believe Mr. Grismore had cancer that required the abdominal perineal resection and (2) intended the Grismores, uninformed about the post-surgical pathology report, would forgo litigation alleging medical negligence.
D. Reasonable and Prejudicial Reliance.
There can be little dispute that it is reasonable for a patient to rely on statements and representations of his physician, or the fact that his physician will comply with a duty to disclose relevant information. In addition, Grismore stated that if he had been informed of the results of the pathology report after surgery he would have consulted an attorney earlier and thus brought his suit in a timely fashion. This is sufficient to create at least a disputed issue of material fact as to whether Grismore did rely on any concealment to his prejudice. IV. Conclusion.
In assessing this question we place little weight upon the fact that Dr. Garber's post-surgical medical records contained references to Grismore's "cancer." As noted by Dr. Garber, the summary judgment record contains no indication that Grismore ever relied on these records.
When viewed in the light most favorable to the plaintiffs, the record contains disputed issues of material fact sufficient to send the issue of fraudulent concealment to the jury on all but one of the specifications of negligence alleged in the Grismores' petition. This matter is remanded for further proceedings not inconsistent with this opinion.