Fraudulent Concealment Exception to Medical Malpractice Statute of Limitations and Statute of Repose in Tennessee
In Robinson v. Baptist Memorial Hospital, No. W2013-01198-COA-R3-CV (July 11, 2014), the court addressed the fraudulent concealment exception to the statute of limitations and statute of repose for medical negligence actions in Tennessee. In this case, the defendant doctor erased the initial version of his consult note and changed his initial, incorrect, diagnosis of the decedent. During discovery, the plaintiff learned of this change and was granted leave to amend the complaint to add the defendant doctor and his medical practice as defendants. This amended complaint was filed around five years after the initial lawsuit was filed – outside of the one-year statute of limitations and three-year statute of repose for medical negligence claims in Tennessee.
Under Tennessee law, the doctrine of fraudulent concealment will toll the running of a statute of limitations. It tolls the statute when a defendant has taken steps to prevent the plaintiff from discovering that he was injured. There are four elements that must be met to prove fraudulent concealment:
(1) that the defendant affirmatively concealed the plaintiff’s injury or the identity of the wrongdoer or failed to disclose material facts regarding the injury or the wrongdoer despite a duty to do so;
(2) that the plaintiff could not have discovered the injury or the identity of the wrongdoer despite reasonable care and diligence;
(3) that the defendant knew that the plaintiff had been injured and the identity of the wrongdoer; and
(4) that the defendant concealed material information from the plaintiff by withholding information or making use of some device to mislead the plaintiff in order to exclude suspicion or prevent inquiry.
Redwing v. Catholic Bishop for Diocese of Memphis, 363 S.W.3d 436, 462-63 (Tenn. 2012).
When these conditions are met, “[t]he statute of limitations is tolled until the plaintiff discovers or, in the exercise of reasonable diligence, should have discovered the defendant’s fraudulent concealment or sufficient facts to put the plaintiff on actual or inquiry notice of his or her claim.” Id. at 463. The statute of limitations runs from the point at which the plaintiff discovers or should have discovered the claim and the plaintiff must file the claim within the statutory limitations period. Id.
Usually the question of whether a plaintiff exercised reasonable care and diligence in discovering the injury or wrong is one of fact for the jury; however, where the undisputed facts show that no reasonable trier of fact could conclude a plaintiff did not know or should not have known about an injury or wrong, Tennessee law provides for dismissal of the lawsuit on the pleadings or through summary judgment.
The court of appeals found that the trial court in Robinson based its grant of summary judgment on two grounds – the plaintiffs’ failure to aver facts sufficient to show that the doctor fraudulently concealed any material fact or to create a fact dispute as to fraudulent concealment, and that the plaintiffs were not diligent in discovering the alleged injury when they had discovery materials containing the information within the limitations period.
The court of appeals first analyzed the evidence presented by the plaintiffs to establish fraudulent concealment. The court found that under the summary judgment standard, which requires the court to review the evidence in the light most favorable to the nonmoving party and to draw all reasonable inferences in favor of the nonmoving party, that an issue of fact exists with regard to whether the defendant doctor’s action in erasing the initial version of his consult note was a violation of the standard of care which would allow an inference of fraudulent concealment. The court found that the inference is “somewhat tenuous, but it is not outside the realm of reasonableness” and concluded that the trial court erred in granting summary judgment on the ground of lack of evidence of fraudulent concealment.
However, the court went on to find that, giving the nonmoving party the most favorable reading of the facts and giving every inference in their favor, the plaintiffs had the information about the changed diagnosis in their possession on July 22, 2010, and therefore should have known of the wrong as of that date. The court found this would extend the statute of limitations to July 22, 2011, but that due to the pre-suit notice requirement, that limitations period would be further extended for 120 days to November 19, 2011. The plaintiffs did not file their complaint until February 1, 2012 and therefore, the court found that the suit was filed well outside of the adjusted statute of limitations and repose period. Thus, the court of appeals affirmed the dismissal of the case.
As it should have.