Downing v. Grossmann

• Decision Date: 22 April 2022
• Docket Number: 20-1124
• Citation: 973 N.W.2d 512
• Parties: Elizabeth DOWNING and Marcella Berry, as Co-Administrators of the Estate of Linda Berry, Appellants, v. Paul GROSSMANN, and Catholic Health Initiatives Iowa, Corp. d/b/a Mercy Medical Center, Mercy Medical Center West Lakes, and Mercy Surgical Affiliates, Appellees.
• Court: Iowa Supreme Court

973 N.W.2d 512

Elizabeth DOWNING and Marcella Berry, as Co-Administrators of the Estate of Linda Berry, Appellants,

v.Paul GROSSMANN, and Catholic Health Initiatives Iowa, Corp. d/b/a Mercy Medical Center, Mercy Medical Center West Lakes, and Mercy Surgical Affiliates, Appellees.

No. 20-1124

Supreme Court of Iowa.

Submitted March 24, 2022

Filed April 22, 2022

Rehearing Denied May 18, 2022

Steve Hamilton (argued) and Molly M. Hamilton of Hamilton Law Firm, P.C., Clive, for appellants.

Joseph F. Moser (argued) and Stacie M. Codr of The Finley Law Firm, P.C., Des Moines, for appellees.

Oxley, J., delivered the opinion of the court, which all justices joined.

OXLEY, Justice.

A benign cyst on Linda Berry's right kidney was first detected on a computerized tomography (CT) scan taken at Mercy Medical Center¹ in 2004. Ms. Berry visited Mercy over the next several years for a variety of reasons, and the cyst was noted as an incidental finding on subsequent CT scans, including one taken during a visit to the ER on October 1, 2009, when Dr. Paul Grossmann treated her for colitis. This time, a radiologist noted the mass had grown in size from the prior scans, suggesting the mass should be further evaluated. But, according to the plaintiffs, no one mentioned the growing cyst to Ms. Berry or her primary care physician until another CT scan was taken when she broke her shoulder seven years later. By then it was too late. Ms. Berry was treated for renal cancer in April 2016, the cancer metastasized to her bones, and she passed away from cancer in 2019.

Prior to her death, in 2018 Ms. Berry filed a medical malpractice action against Dr. Grossmann and the Mercy affiliates for failing to disclose the kidney mass in October 2009. But she ran up against Iowa's six-year statute of repose found in Iowa Code section 614.1(9) (2018), which barred her claims because she initiated her case more than six years after Dr. Grossmann's actions. Ms. Berry's estate asserts the defendants should be equitably estopped from raising the statutory bar under the doctrine of fraudulent concealment. Fraudulent concealment requires just that—fraudulent, or intentional, concealment of the plaintiff's cause of action. And the concealment must be distinct from the underlying act being concealed. Otherwise, there would never be a time limit for failure-to-disclose-type claims. When the underlying cause of action is one for failure to disclose a medical condition, as here, a defendant's continued failure to disclose the condition that goes to the heart of the plaintiff's underlying claim does not meet the requirement for an independent and subsequent act of concealment to trigger equitable estoppel.

The court of appeals read the requirement for an independent act of concealment too narrowly. The acts of concealment claimed by the estate are the same acts by Dr. Grossmann that form the basis of the estate's underlying claims of negligence. The fraudulent concealment doctrine therefore does not apply, and the defendants are not estopped from asserting the statute of repose defense, which undisputedly applies to the facts of this case. For the reasons explained below, we reverse the court of appeals and affirm the district court's grant of summary judgment for the defendants.

I.

We recite the facts supported by the record in the light most favorable to the plaintiffs in considering whether the defendants were entitled to summary judgment on their statute of repose defense. Berry's primary care physician was with Broadlawns Family Medicine, and she used Mercy for emergency care. In 2004, Berry was hospitalized at Mercy for abdominal pain, and a CT scan showed a mass on her right kidney that was determined to be a benign cyst. Berry received another CT scan at Mercy in December 2006 when she was seen for a urinary tract infection. This CT scan indicated her "right kidney is unchanged with a stable right renal cyst." Berry was not informed of the mass on her right kidney at either visit.

On October 1, 2009, Berry went to the Mercy emergency room complaining of constipation and nausea. Dr. Paul Grossmann, the on-call emergency room doctor, ordered a CT scan based on concerns Berry might have acute appendicitis, diverticulitis, or an incarcerated hernia. The initial CT scan reading revealed no abnormalities other than constipation, and Berry was sent home with medication for constipation. However, a final reading of the CT scan revealed that Berry had mild sigmoid colitis. Dr. Matthew Severidt, a Mercy resident working with Dr. Grossmann, called Berry's daughter, Elizabeth Downing, as they were driving home and told her, "You need to bring your mom back. Not everything was okay on the CT scan. Come back." Berry was prescribed an antibiotic for the colitis and again discharged with an appointment to follow up with Dr. Grossmann about the colitis on October 6.

The final reading of the CT scan also showed a large exophytic mass on Berry's right kidney that had increased in size from the scans taken in 2004 and 2006. Dr. Severidt wrote an addendum to Berry's chart noting the mass and stating: "Suggest MRI for evaluate." He also noted, "Patient will follow up with Dr. Grossmann in one week at which time further evaluation of right kidney can be undertaken." Although Dr. Severidt noted, "This was discussed with patient who voiced understanding," nothing was mentioned about the mass in Berry's discharge papers, and Berry and Downing both denied ever being told about the mass despite the unusual request to return to the hospital because "not everything was ok" with the CT scan. We assume the mass was not discussed with Berry for purposes of reviewing the summary judgment ruling.

Berry went back to Mercy's emergency room late on October 3 with complaints of increased abdominal pain and constipation. Another CT scan showed the colitis was responding to the antibiotics, again depicting the mass on Berry's right kidney. Although the mass was deemed not to be the cause of Berry's pain, Dr. Roe, one of Dr. Grossmann's partners who was on call that night, wrote in his consultation notes: "Plan: Recommended follow up for R. kidney cystic mass with Dr. Grossmann, already discussed with patient on 10/1/09." A copy of the October 3 CT scan results in Berry's patient chart contained Dr. Grossmann's signature, indicating his acknowledgment of the results and recommendations for further testing. But again, Berry was not informed of the right kidney mass seen on the CT scan and was not informed that further testing was recommended.

On October 6, Berry saw Dr. Grossmann for her follow-up appointment concerning the colitis. Dr. Grossmann examined Berry and scheduled a colonoscopy. Dr. Grossmann's dictated notes made no mention of consulting with Berry about the kidney mass. Dr. Grossmann dictated and sent a letter to Berry's primary care physician at Broadlawns regarding his diagnosis and treatment of Berry's colitis. At his deposition, Dr. Grossmann explained that the letter was intended to inform Berry's primary care physician about the treatment he provided. Dr. Grossmann claims he told Berry about the kidney mass at the October 6 appointment but he did not document it in his notes or the letter to her primary care physician because he was not consulted to treat the mass and it was a urology issue that was outside the scope of the treatment he could provide. Downing accompanied Berry to the October 6 appointment, and both she and Berry testified Dr. Grossmann never mentioned the mass, a fact we again accept as true. The estate's expert opines that Dr. Grossmann violated the standard of care because even incidental findings on a CT scan should be reported to a patient's primary care physician for follow-up.

After the colonoscopy and further evaluation of the colitis treatment, Dr. Grossmann discharged Berry from his care in December, informing her that her conditions had resolved. At an April 15, 2010 appointment, Berry's primary care physician read Dr. Grossmann's October 6 letter to Berry, which did not mention the right kidney mass or recommend further testing. Despite the notes in Berry's chart about the kidney mass, no additional testing was conducted.

Fast forward six years to April 24, 2016. Berry fell, severely injuring her shoulder and sending her back to Mercy's emergency room. Given Berry's bone abnormalities and her medical history, the ER doctor, Dr. Todd Peterson, recommended to Berry's primary care physician that Berry follow up with an orthopedic surgeon at the University of Iowa Hospitals and Clinics. As relevant here, a CT scan of Berry's chest, abdomen, and pelvis taken at the University Hospitals revealed that the right kidney mass had grown to 4.4 cm and was concerning for cystic renal cell neoplasm. Again, Berry was not informed of the mass during her treatment, but a nurse discharging Berry happened to mention the kidney mass to her. Berry claims this was the first time anyone ever informed her of the mass on her kidney.

On April 29, Berry was diagnosed with metastatic renal cell carcinoma through a CT biopsy at the University Hospitals. In November 2016, Berry underwent a partial right nephrectomy to treat her renal cancer. Although the surgery was initially successful, a spinal tumor was discovered in July 2017. Berry underwent surgery, chemotherapy, and radiation treatment. Berry passed away on May 22, 2019, from renal cell carcinoma with metastasis to the bone.

Prior to her death, Berry sued Dr. Grossmann, Mercy Surgical Affiliates, and Catholic Health Initiatives Iowa, Corp. d/b/a Mercy Medical Center on April 10, 2018. She asserted medical malpractice claims related to Dr. Grossmann's alleged failure to disclose information about the kidney abnormalities revealed on the CT scans to Berry or her primary care physician, preventing Berry from seeking further testing and care. Her expert opined that even though the kidney mass was an incidental finding to Berry's treatment...