Bowlin Horn v. Citizens Hosp.

• Decision Date: 30 December 1982
• Citation: 425 So.2d 1065
• Parties: Melinda J. Bowlin HORN v. CITIZENS HOSPITAL, et al. 81-581.
• Court: Alabama Supreme Court

Page 1065

425 So.2d 1065

Melinda J. Bowlin HORN v. CITIZENS HOSPITAL, et al.

81-581.

Supreme Court of Alabama.

Dec. 30, 1982.

Rehearing Denied Jan. 21, 1983.

Stephen D. Heninger of Hare, Wynn, Newell & Newton, Birmingham, for appellant.

R. Blake Lazenby and B. Clark Carpenter, Jr. of Dixon, Wooten, Boyett, Thornton, Carpenter & O'Brien, Talladega, for appellee Citizens Hosp.

W. Michael Atchison and Carol A. Smith of Starnes & Atchison, Birmingham, for appellee Dr. E.H. Roberts.

MADDOX, Justice.

Plaintiff below appeals the granting of summary judgment for the defendants by the trial court on the ground the recovery was barred by the four-year statute of limitations of the Medical Liability Act. The dispositive issue here is whether fraudulent concealment tolls the operation of the Medical Liability Act thereby permitting an action otherwise permitted by the statute to be brought more than four years after the alleged act of malpractice.

Melinda Bowlin Horn, appellant, was at the time of her appendectomy on April 21, 1971, an unmarried 13-year-old. Her physician, Dr. E.H. Roberts, allowed a piece of a sweged needle that broke off during the operation to remain embedded in the thick wall of the girl's abdomen. The "Report of Operation" describes the incident as follows: "In closing the initial oblique muscle, closing loosely to the internal oblique, a tiny bit of the sweged needle was lost in it and rather than losing time for this particular incident, the operation was continued...." Although Dr. Roberts's "Progress Notes" as well as the "Report of Operation" indicated that the broken portion of the needle was left in the incision and that the mother and father had been informed of its presence, the appellant and her parents maintain that they were never informed about the needle, but instead were told that the operation was successful. Dr. Roberts stated in the interrogatories that he did not recall whether he had in fact informed the parents about the broken needle, because the operation had taken place more than nine years before.

About a year following surgery, the appellant began experiencing abdominal pains. She went to two different physicians on separate occasions for treatment. One physician diagnosed the persistent abdominal pain to be caused by nervousness, while the other physician informed her that the pain was caused by an ulcer. Appellant never informed Dr. Roberts of her persistent abdominal pain and in fact was never again treated by him after her discharge from the hospital following the appendectomy.

In February 1979, the appellant sought treatment from physicians in Birmingham. X-rays revealed the presence of the needle remnant at the site of the appendectomy. On March 9, 1979, a short time following surgery to remove the needle remnant, appellant filed a medical malpractice suit against Citizens Hospital and Dr. Roberts in the Circuit Court of Talladega County. The trial court granted the appellee's motions for summary judgment on March 17, 1982, on the ground that the appellant's claim for recovery was barred by the applicable statute of limitations for malpractice found in Code 1975, § 6-5-482. From this order, appellant appeals.

I

This Court has not previously addressed the issue of fraudulent concealment as it applies to the Medical Liability Act. See Code 1975, §§ 6-5-480 through 6-5-488. There is no dispute by any of the parties that the action made the basis of this appeal is governed by the Medical Liability Act. This act contains its own limitations as to the time for the commencement of an action. Section 6-5-482(a) of the act reads:

"All actions against physicians, surgeons, dentists, medical institutions or other health care providers for liability, error, mistake or failure to cure, whether based on contract or tort, must be commenced within two years next after the act or omission or failure giving rise to the claim, and not afterwards; provided, that if the cause of action is not discovered and could not reasonably have been discovered within such period, then the action may be commenced within six months from the date of such discovery or the date of discovery of facts which would reasonably lead to such discovery, whichever is earlier; provided further, that in no event may the action be commenced more than four years after such act; except, that an error, mistake, act, omission or failure to cure giving rise to a claim which occurred before September 23, 1975, shall not in any event be barred until the expiration of one year from such date."

In Street v. City of Anniston, 381 So.2d 26 (Ala.1980), we remarked with specific reference to this section that:

"[It] is similarly titled a statute of limitations, and commences the running of the statute from the time of the act or omission giving rise to the cause of action. It does not, however, act as a grant of immunity; our case law has established that, in malpractice actions, legal injury occurs at the time of the negligent act or omission, whether or not the injury is or could be discovered within the statutory period. Garrett v. Raytheon [368 So.2d 516 (Ala.1979) ], Hudson v. Moore, 239 Ala. 130, 194 So. 147 (1940), Sellers v. Edwards, 289 Ala. 2, 265 So.2d 438 (1972). Thus, the Medical Liability Act contains a traditional statute of limitations, one which commences the running of the statute from the accrual of the cause of action, and is not subject to constitutional infirmity under § 45."

381 So.2d at 31. See also Ramey v. Guyton, 394 So.2d 2 (Ala.1980).

The Court discussed the origin of the principle of fraudulent concealment in Porter v. Smith, 65 Ala. 169 (1880).

"... It is known to have been the long-settled doctrine of courts of equity, that if fraud has been concealed by a party, against whom there is a cause of action, the statute of limitations does not commence to run, until the fraud has been discovered, or until the party aggrieved shall have had reasonable opportunity afforded him for discovering it. -- Angell on Lim. § 183; Snodgrass v. Branch Bank at Decatur, 25 Ala. 161; Coster v. Murray, 5 John. (N.Y.) Ch. 522. The reason given by Lord Redesdale, in Hovenden v. Lord Annesley (2 Sch. & Lef. 634), was, that the conscience of the party being so affected, he ought not to be allowed to avail himself of the lapse of time. The first authoritative application of this principle to courts of law found encouragement, if not origin, in the apparent dictum of Lord Mansfield, uttered in Bree v. Holbreck, Doug. 654, that 'there may be cases which fraud will take out of the statute of limitations.' And while the soundness of the doctrine, as applicable to courts of law, has been denied in some of the States, including New York, Virginia, and North Carolina, we think the weight of authority in this country clearly supports the affirmative.--Angell on Lim. § 186; Wear v. Skinner, 24 Amer.Rep. 517 (46 Md. 257)."

65 Ala. at 172. Section 6-2-3, as appellant suggests, is the embodiment of this equitable notion and it reads:

"In actions seeking relief on the ground of fraud where the statute has created a bar, the claim must not be considered as having accrued until the discovery by the aggrieved party of the fact constituting the fraud, after which he must have one year within which to prosecute his action."

Appellant notes that Garrett v. Raytheon Co., Inc., 368 So.2d 516, 521 (Ala.1979), is a reaffirmation by this Court that "fraudulent concealment by a defendant tolls the running of the statute until the tort injury is discovered or could have been discovered by due diligence." Additionally, the appellant maintains that the facts of this case present a classic illustration of a confidential relationship and that where this sort of confidential relationship exists, as between a physician and the patient, the law imposes a strong duty on the physician to disclose facts of medical significance to the patient. Appellant cites the following cases as representing this obligation to disclose where confidential relations exist, Jefferson County Truck Growers Ass'n v. Tanner, 341 So.2d 485 (Ala.1977); Tonsmeire v. Tonsmeire, 285 Ala. 454, 233 So.2d 465 (1970); Metropolitan Life Ins. Co. v. James, 238 Ala. 337, 191 So. 352 (1939); Brasher v. First National Bank of Birmingham, 232 Ala. 340, 168 So. 42 (1936). Section 6-5-102 is likewise cited by appellant as imposing an obligation to disclose in this case. This section reads: "[S]uppression of a material fact which the party is under an obligation to communicate constitutes fraud. The obligation to communicate may arise from the confidential relations of the parties or from the particular circumstances of the case." See Harrell v. Dodson, 398 So.2d 272, 276 (Ala.1981). Consequently, the appellant urges this Court to incorporate the principle of fraudulent concealment into the effects of § 6-5-482 by engrafting § 6-2-3 or § 6-5-102.

Some courts in other jurisdictions appear to have adopted the view that if a surgeon or other medical practitioner obtains actual knowledge that he has negligently left a foreign object in the body of a patient then the practitioner has a duty to disclose the object's presence to the patient. These courts apparently treat the failure of the practitioner to disclose such a condition as a fraudulent concealment which tolls the limitations period until the patient discovers, or, by the use of reasonable diligence, should have discovered, the presence of the object. Annot., 70 A.L.R.3d 7 (1976).

The legislature first enacted a medical malpractice statute of limitations in 1953. Act of Sept. 17, 1953, No. 766, 1953 Ala.Acts 1027 (codified at Ala.Code Tit. 7 § 25(1) (1940)). Act No. 766 provided:

"Section 1. All actions against physicians and surgeons, and dentists for malpractice, error, mistake, or failure to cure, whether based on contract or tort, must be commenced within two years next after the act or omission or failure giving...