Day on Torts
In a Tennessee health care liability (HCLA)d case based on the defendants’ failure to disclose CT scan results to the plaintiffs, the plaintiffs could not rely on fraudulent concealment to toll the statute of repose where the defendants were unaware of the undisclosed test results.
The plaintiff patient in Estate of Rowe v. Wellmont Health System, No. E2024-00431-COA-R3-CV (Tenn. Ct. App. Dec. 11, 2024) presented at the emergency room in May 2010 for pain in his left flank and back. Defendant doctor ordered a CT scan without contrast. When the doctor reviewed the scan, he saw a kidney stone, which aligned with the symptoms the plaintiff was experiencing. The plaintiff passed the kidney stone the next day and received no further treatment at the time.
The radiology report for the CT scan noted two masses on the kidney and recommended a CT with contrast as a follow up. While the radiology report was available for the defendant doctor to read by clicking a pop up or looking at the chart after the report was added, he testified that he did not review the report at that time.
Five years later, in May 2015, the plaintiff presented at the emergency room again with similar pain. A CT scan revealed two masses on his kidney which had “grown significantly since May 2010.” At this point the plaintiff learned of the 2010 radiology report for the first time. The plaintiff was ultimately diagnosed with cancer, and plaintiff and his wife filed this healthcare liability suit against the initial treating doctor, the medical center, and the doctor’s physician group. After the suit was filed, the plaintiff patient died, and his wife continued the action as administrator of his estate.
The defendants filed motions to dismiss based on the statute of repose for HCLA claims, which the trial court denied. The defendants later filed motions for summary judgment on the same basis. The defendants argued that the plaintiffs’ claims were barred by the three-year statute of repose found in the HCLA. The plaintiffs responded by asserting that the statute of repose was tolled in this case due to fraudulent concealment. The trial court ruled that the plaintiffs could not prove the necessary elements to show fraudulent concealment and therefore granted the defendants summary judgment. That ruling was affirmed on appeal.
The HCLA provides that “[i]n no event shall any such action be brought more than three (3) years after the date on which the negligent act or omission occurred except where there is fraudulent concealment on the part of the defendant…” Tenn. Code Ann. § 29-26-116(a)(3). While the statute of limitations is subject to the discovery rule, the statute of repose begins to run on the date of the negligent act and “extinguishes both undiscovered causes of action which have yet to accrue and accrued and vested rights of action.” (internal citation and quotations omitted). The only statutory defense to the HCLA statute of repose is fraudulent concealment.
A plaintiff seeking to establish fraudulent concealment must show four elements: “(1) that the defendant took affirmative action to conceal the cause of action or remained silent and failed to disclose material facts despite a duty to do so…, (2) the plaintiff could not have discovered the cause of action despite exercising reasonable care and diligence,” (3) “knowledge on the part of the defendant of the facts giving rise to the cause of action,” and (4) “a concealment of material information from the plaintiff.” (internal citations omitted). The failure to speak or disclose may be equivalent to an affirmative act where there is a confidential relationship, such as that between a doctor and patient.
Applying the elements to the facts of this case, the Court of Appeals wrote that “Plaintiffs misconstrue the defense of fraudulent concealment,” as fraudulent concealment “has to do with a failure to disclose information related to the cause of action or wrongdoing.” (internal citation omitted). Here, there was no evidence that the defendants fraudulently concealed their potential negligence in failing to disclose the radiology results in a timely manner. In fact, there was no evidence that the defendants knew they had failed to disclose these results, as the testimony established that the defendants did not review the scan results in 2010.
The Court reasoned that this case was similar to a “failure to diagnose case, rather than an instance of fraudulent concealment.” Noting that “[f]or the purposes of tolling the statute of repose, the failure to correctly diagnose an ailment cannot be the basis for fraudulent concealment claim unless the defendant had knowledge of the correct diagnosis,” (internal citation omitted), the Court explained:
Based on the filings, there is no evidence, or even an allegation, in the record to establish that Defendants later became aware of the radiology report’s findings and their initial failure to disclose them but then chose not to disclose these findings to Mr. Rowe. Although there may be sufficient evidence to establish that Defendants were negligent, their negligent failure to disclose the radiology report to Mr. Rowe does not constitute fraudulent concealment. Rather, it constitutes the act of negligence for which Plaintiffs brought this action. Defendants’ alleged negligence does not act as an exception to the statute of repose.
While the plaintiffs had evidence that the radiology reports were available to the defendants, the plaintiffs had no evidence that any employee of any of the defendants had notice that the doctor failed to read the radiology report and disclose the results to the plaintiffs. “Having no knowledge of a wrongful act or their potential liability, they had nothing to conceal. A defendant cannot have taken steps, even by silence, to fraudulently conceal a wrong when he had no knowledge of the wrong done.” (internal citation and quotation omitted).
Because the plaintiffs only offered evidence regarding the alleged negligence rather than fraudulent concealment, summary judgment was affirmed.
This case illustrates how a potentially valid health care liability claim can be barred by the statute of repose before a plaintiff is even aware of the wrongdoing. Because the statute of repose began to run at the time of the negligent act, the claim in this case was time-barred in 2013, even though the plaintiffs did not discover ( and reasonably could not have discovered) the potential negligence until 2015.
This opinion was released one month after oral arguments.