Bruske v. Hille

• Decision Date: 20 August 1997
• Docket Number: No. 19909,19909
• Citation: 1997 SD 108,567 N.W.2d 872
• Parties: Linda BRUSKE, Plaintiff and Appellant, v. R.D. HILLE, Defendant and Appellee.
• Court: South Dakota Supreme Court

Page 872

567 N.W.2d 872

1997 SD 108

Linda BRUSKE, Plaintiff and Appellant, v. R.D. HILLE, Defendant and Appellee.

No. 19909.

Supreme Court of South Dakota.

Argued June 3, 1997.

Decided Aug. 20, 1997.

Scott N. Heidepriem, Mark F. Marshall of Johnson, Heidepriem, Miner, Marlow &amp Janklow, Sioux Falls, for plaintiff and appellant.

Michael L. Luce, Mark W. Haigh f Davenport, Evans, Hurwitz & Smith, Sioux Falls, for defendant and appellee.

KONENKAMP, Justice.

¶1 A prosthetic implant was surgically inserted in Linda Bruske's right jaw in 1984. Two years later, she sued the doctor for malpractice, then voluntarily dismissed the case. In 1988, the doctor sent warning letters about the implant to his patients, but not to Bruske until 1993. She then sued him for fraud and deceit in failing to earlier disclose the risk. Is her fraud case actually a medical malpractice claim, governed by the two-year statute of limitations, which has expired? We conclude the acts she complains of fall under the definition of medical malpractice, so its limitations period applies. Summary judgment for the doctor is affirmed.

Facts

¶2 Linda Bruske suffered from temporomandibular joint (TMJ) disorder. To relieve her symptoms, on May 12, 1984, Dr. R.D. Hille, an oral and maxillofacial surgeon, performed a bilateral internal TMJ operation. Part of the surgery involved placement of a Vitek Proplast II implant into her right jaw. Hille saw her again on July 6, 1984, and for the last time on September 10, 1985. His notes show her postoperative care was "uneventful" and without complications. Between 1984 and 1994, however, she sought treatment with several doctors and dentists and visited the Mayo Clinic in Rochester, Minnesota, mostly concerning persisting difficulties with her jaw.

¶3 In May 1986, Bruske sued Hille for medical malpractice by service of a summons upon him. No complaint was ever filed, and she voluntarily dismissed the case with prejudice on September 27, 1988. The apparent basis for her suit was explained in a hand-written letter she wrote on December 6, 1987:

In summary, my complaint against Dr. Hille is that he did too much radical surgery on me in too short of a time without doing the proper presurgical diagnosis or explain[ing] the other nonsurgical options available or possible side effects. Ever since he performed the surgery I have had dizzy spells, vision and balance problems, and headaches.

¶4 Bruske frequented a variety of medical providers, but no one advised her of any specific hazards associated with this implant. However, none were oral and maxillofacial surgeons like Hille. On October 8, 1993, Bruske saw the ABC news television program "20/20," featuring a story on the dangers of Vitek Proplast implants. Then, for the first time she learned of the threat her 1984 implant posed. Made from Teflon, the material used in cookware, these devices tend to shatter once implanted, fragmenting into tiny slivers difficult to remove. Unable to destroy the Teflon splinters, the body's defense mechanisms attack the jaw causing severe damage to tissue and bone.

¶5 In 1988, Hille began notifying his patients of the problems with the implant and urged them to come in for treatment. Bruske was not among those informed. Hille explained in his deposition that when Bruske sued him in 1986, her file was moved to a fireproof cabinet; therefore, it was not with the other records when patient files were reviewed for implant warnings. Yet the record reveals Hille accessed her file for other matters, including an insurance inquiry in 1990, and a request for surgery records from another doctor in 1991. As time passed, Vitek implants received increased attention. In March 1990, Vitek notified the health care industry about the dangers. The FDA issued a Safety Alert in December 1990 and in January 1991 ordered a total recall. Finally, in November 1993, Bruske received a letter from Hille notifying her of the problems. When the implant was removed in March 1994, it had, in fact, shattered.

¶6 Bruske's expert, Dr. Anthony M. Captline, D.M.D., J.D., an oral surgeon from Pennsylvania, testified by deposition that in 1985 the dangers of the implant were known to members of the American Association of Oral and Maxillofacial Surgery (AAOMS), an organization to which Hille belonged. Captline felt that neither dentists nor other physicians Bruske saw would necessarily have been aware of the dangers. These practitioners would not have had the knowledge of the implant hazard that Hille had at his disposal, according to Captline, since 1985, and it was Hille's duty to warn Bruske.

¶7 Bruske brought suit for fraud and deceit in 1994, asserting Hille suppressed facts he was bound to disclose. Relying on Captline's opinion, Bruske alleged Hille had a duty to advise her of the risks of the Vitek implant long before 1993 and his failure to do so amounted to fraudulent concealment. The circuit court granted Hille's motion for summary judgment. Bruske appeals, contending there were genuine issues of material fact meriting a trial.

Standard of Review

¶8 Under our standard for summary judgment review we must decide

whether the moving party demonstrated the absence of any genuine issue of material fact and showed entitlement to judgment on the merits as a matter of law. Farmers & Merchants State Bank v. Teveldal, 524 N.W.2d 874, 877 (S.D.1994)(quoting Mooney's v. SD Dep't of Transp., 482 N.W.2d 43, 45 (S.D.1992)). The evidence must be viewed most favorably to the nonmoving party and reasonable doubts should be resolved against the moving party. Id. (citation omitted). Our task on appeal is to determine whether a genuine issue of material fact exists and whether the law was correctly applied. If there exists any basis which supports the ruling of the trial court, affirmance of summary judgment is proper. Id.

Henry v. Henry, 534 N.W.2d 844, 846 (S.D.1995). Duty is a question of law subject to de novo review. Poelstra v. Basin Elec. Power Co-op., 1996 SD 36, p 9, 545 N.W.2d 823, 825.

Fraud and Deceit

¶9 In her complaint, Bruske alleges two counts of fraud and deceit, based in part, on SDCL ch. 20-10. She asserts Hille failed to inform her of the dangers of the implant sooner. ¹ SDCL 20-10-1 provides, "One who willfully deceives another, with intent to induce him to alter his position to his injury or risk, is liable for any damage which he thereby suffers." SDCL 20-10-2(3) further defines deceit as "[t]he suppression of a fact by one who is bound to disclose it, or who gives information of other facts which are likely to mislead for want of communication of that fact[.]" While it is true issues of fraud and deceit are generally questions of fact to be determined by a jury, Laber v. Koch, 383 N.W.2d 490, 492 (S.D.1986), summary judgment is appropriate if no evidence of deceitful intent is produced. Garrett v. BankWest, Inc., 459 N.W.2d 833, 847 (S.D.1990); see also Famous Brands, Inc. v. David Sherman Corp., 814 F.2d 517 (8th Cir.1987). Unlike contract cases, a tort action for deceit must include actual fraud; constructive fraud is inadequate:

The tort action of deceit is based only upon actual fraud as defined by SDCL 20-10-2, and requires scienter or its equivalent. Constructive fraud, which requires no fraudulent intent, is not a basis for deceit under SDCL 20-10, nor under common law. Although actual fraud may be the basis of tort actions and contract actions, constructive fraud is the basis only for actions for the avoidance of contracts.

Schmidt v. Wildcat Cave, Inc., 261 N.W.2d 114, 117 (S.D.1977) (citations omitted).

¶10 With fraud and deceit, the six-year statute of limitations applies and would not begin to run "until the aggrieved party discovers, or has actual or constructive notice of, the facts constituting the fraud." SDCL 15-2-3; SDCL 15-2-13(6); Anderson v. Production Credit Ass'n, 482 N.W.2d 642, 644 (S.D.1992). See generally Toth v. Lenk, 164 Ind.App. 618, 330 N.E.2d 336 (1975)(statute begins to run if treatment ceases but patient aware of continuing nature of problem). Bruske alleges she discovered Hille's deceit when she viewed the "20/20" program on October 8, 1993, making her February 2, 1994, service of the summons and complaint timely.

¶11 Bruske must prove Hille acted "with intent to induce [her] to alter [her] position to [her] injury or risk." SDCL 20-10-1. Yet her allegations supporting fraud and deceit lack the usual specificity necessary for such claims. "[A]llegations of fraud and deceit without specific material facts to substantiate them will not prevent summary judgment." Taggart v. Ford Motor Credit Co., 462 N.W.2d 493, 498 (S.D.1990); Western Cas. & Sur. Co. v. Gridley, 362 N.W.2d 100, 102 (S.D.1985). She insinuates Hille intentionally declined to send her a warning letter because of her prior suit against him. Conclusory allegations are insufficient. Dede v. Rushmore Nat'l Life Ins. Co., 470 N.W.2d 256, 258 (S.D.1991); Home Federal Sav. & Loan v. First Nat'l Bank, 405 N.W.2d 655, 658 (S.D.1987). See also Connell v. Colwell, 214 Conn. 242, 571 A.2d 116, 121 (1990)(summary judgment for doctor affirmed; noting, "[f]raud is not to be presumed, but must be strictly proven") (citation omitted); Eagleston v. Mt. Sinai Medical Center, 144 A.D.2d 427, 533 N.Y.S.2d 992, 994 (1988)(dismissal of fraud cause of action against physician affirmed as there was no intentional concealment). Hille's innocent explanation would, of course, negate any wrongful intent. Yet, we are required to view Bruske's case in a light most favorable to her as the nonmoving party, so we probe further.

¶12 Bruske insists the source of Hille's duty lies not merely in the physician-patient relationship, but upon SDCL 20-10-2(3)("suppression of a fact by one who is bound to disclose it...."). Nonetheless, when closely examined, her claims sound in negligence. Bruske's expert medical witness, Dr. Captline, testified throughout his deposition that...