Meadors v. Still, M.D., 00-619

• Decision Date: 29 March 2001
• Docket Number: 00-619
• Parties: LESTA MEADORS, APPELLANT, VS. EUGENE F. STILL, M.D., APPELLEE.SUPREME COURT OF ARKANSAS 29 March 2001 APPEAL FROM THE SEBASTIAN COUNTY CIRCUIT COURT, NO. CIV 99-300, HON. JAMES R. MARSCHEWSKI, JUDGE, AFFIRMED. Robert L. Brown, Associate Justice This appeal brought by appellant Lesta Meadors is from an order granting summary judgment in favor of appellee Dr. Eugene F. Still. On appeal, Meadors questions the standard of review utilized by the trial court in granting summary judgment and urges that the trial court erred in determining that her cause of action was not fraudulently concealed by Still's actions. We disagree that reversal is warranted, and we affirm the trial court. Lesta Meadors was a forty-one-year-old woman at the time she filed her first complaint in this matter in 1999. She had been born with Poland's Syndrome, which caused a cavity in the right side of her chest. At about age thirteen, she had her first breast augmentation, with an implant of 225 cc. in the right breast area. On
• Court: Arkansas Supreme Court

LESTA MEADORS, APPELLANT VS EUGENE F. STILL, M.D., APPELLEE

No. 00-619

SUPREME COURT OF ARKANSAS

29 March 2001

APPEAL FROM THE SEBASTIAN COUNTY CIRCUIT COURT, NO. CIV 99-300, HON. JAMES R. MARSCHEWSKI, JUDGE, AFFIRMED.

Robert L. Brown, Associate Justice

This appeal brought by appellant Lesta Meadors is from an order granting summary judgment in favor of appellee Dr. Eugene F. Still. On appeal, Meadors questions the standard of review utilized by the trial court in granting summary judgment and urges that the trial court erred in determining that her cause of action was not fraudulently concealed by Still's actions. We disagree that reversal is warranted, and we affirm the trial court.

Lesta Meadors was a forty-one-year-old woman at the time she filed her first complaint in this matter in 1999. She had been born with Poland's Syndrome, which caused a cavity in the right side of her chest. At about age thirteen, she had her first breast augmentation, with an implant of 225 cc. in the right breast area. On March 15, 1984, she had a second breast augmentation. Dr. Still performed that surgery and inserted a 475 cc. implant in the right breast area and a 180 cc. implant in the left breast area. The operating room record at Sparks Regional Medical Center in Fort Smith for March 15, 1984, showed labels which read that Ms. Meadors received a round 175 cc. implant filled to 180 cc. for her left breast and that she received a round 475 cc. implant for her right breast. However, Dr. Still's operative report which was prepared following that procedure reflected that "[f]inal reconstruction was accomplished with a round 175 cc implant, filled to 180, on the left[,]" and "[a] double lumen reconstructive implant was accomplished on the right, filled to 175 cc." On April 18, 1984, Dr. Still wrote a letter to Ms. Meadors's family doctor, Dr. Bill Dudding, and advised him that he had taken out a 225 cc. gel-filled implant on the right side and replaced it with a 475 cc. reconstructive implant.

In 1997, Ms. Meadors lived in Florida and had her third and final augmentation performed by Dr. Robert Brueck. Prior to the surgery, Dr. Brueck requested her medical records, and she provided him with Dr. Still's operative report from her 1984 surgery. On September 17, 1997, Dr. Brueck removed Ms. Meadors's right implant and replaced it with a 500 cc. implant. Dr. Brueck testified in his affidavit that the implant removed on her right side was larger than he had anticipated, as he had read and relied upon Dr. Still's operative report, which specified a 175 cc. implant on the right side. Because he had contemplated removing a smaller implant than actually existed, Dr. Brueck stated in his affidavit that he did not have a large enough implant on hand to achieve the symmetry between Ms. Meadors's right and left breasts that she desired. The largest size implant he had available was 500 cc. He concluded in his affidavit that Dr. Still made a mistake in dictating his operative report. On April 26, 1999, Ms. Meadors sued Dr. Still. In her complaint, she alleged that her left breast is now larger than her right and that she is faced with the alternative of having additional surgery or living with the asymmetrical results of her last implants. She further alleged that Dr. Still "affirmatively misrepresented to [her] and Dr. Brueck in his Operative Report the correct size of the right breast implant actually used." According to Ms. Meadors, Dr. Still's "affirmative misrepresentation as to the size of the implant actually used constitutes fraudulent concealment which tolls the statute of limitations." She prayed for compensatory damages.

After Ms. Meadors amended her complaint on two occasions, Dr. Still filed a motion for summary judgment on November 8, 1999. On January 12, 2000, a hearing was held on the motion which consisted of arguments of counsel. On February 4, 2000,the trial court entered its order granting summary judgment in favor of Dr. Still and stated:

Although the question of fraudulent concealment is normally a question of fact, and is not suited for summary judgment, when the evidence leaves no room for a reasonable difference of opinion, a trial court may resolve fact issues as a matter of law. Smothers v. Clouette, 326 Ark. 1017, 934 S.W.2d 923 (1996). JOHNSON v. ARTHUR, 65 Ark. App. 220 (1999)[.] Plaintiff's claim that the statute of limitations was tolled by fraudulent concealment on the part of the Defendants is without sufficient factual support in the record before the Court and is rejected, and there is no evidence showing that any fraudulent concealment occurred.

Ms. Meadors, in her appeal, first questions the standard of review employed by the trial court in granting summary judgment. She specifically takes issue with the trial court's statement in its order that a trial court may resolve fact issues as a matter of law "when the evidence leaves no room for a reasonable difference of opinion." She contends that this court specifically rejected the "reasonable mind" approach to evaluating the merits of a motion for summary judgment in Wallace v. Broyles, 332 Ark. 189, 961 S.W.2d 712 (1998). The trial court erred, according to her theory, when it relied on authority which set out the standard of review for summary judgment as whether reasonable minds could differ.

Ms. Meadors, in our judgment, has confused the standard of review for granting summary judgment on the one hand and granting summary judgment based on a statute-of-limitations defense involving fraud or fraudulent concealment on the other. If the pleadings, depositions, answers to interrogatories, admissions, and affidavits show that there is no genuine issue as to any material fact, summary judgment in favor of the moving party shall be entered forthwith, according to our Rules of Civil Procedure. See Ark. R. Civ. P. 56(c). Our case law is absolutely clear on this. See, e.g., Crockett v. Essex, 341 Ark. 558, 19 S.W.3d 585 (2000); Milam v. Bank of Cabot, 327 Ark. 256, 937 S.W.2d 653 (1997); Renfro v. Adkins, 323 Ark. 288, 914 S.W.2d 306 (1996).

Our standard of review when considering whether the statute of limitations has been tolled due to fraudulent concealment is altogether different:

When the running of the statute of limitations is raised as a defense, the defendant has the burden of affirmatively pleading this defense. First Pyramid Life Ins. Co. v. Stoltz, 311 Ark. 313, 843 S.W.2d 842 (1992), cert. denied, 510 U.S. 908 (1993). However, once it is clear from the face of the complaint that the action is barred by the applicable limitations period, the burden shifts to the plaintiff to prove by a preponderance of the evidence that the statute of limitations was in fact tolled. Id. Fraud suspends the running of the statute of limitations, and the suspension remains in effect until the party having the cause of action discovers the fraud or should have discovered it by the exercise of reasonable diligence. First Pyramid, supra. Although the question of fraudulent concealment is normally a question of fact that is not suited for summary judgment, when the evidence leaves no room for a reasonable difference of opinion, a trial court may resolve fact issues as a matter of law. Alexander v. Flake, 322 Ark. 239, 910 S.W.2d 190 (1995).

Adams v. Arthur, 333 Ark. 53, 63, 969 S.W.2d 598, 602-03(1998).

The trial court followed our clear precedent in the standard it employed to decide whether summary judgment was appropriate based on limitations or whether the statute was tolled due to fraudulent concealment. There was no error in this regard.

Ms. Meadors next contends that in 1984 the size of her right breast implant was fraudulently concealed by Dr. Still. The statute of limitations for medical malpractice ordinarily is two years after the cause of action accrues. See Ark. Code Ann. § 16-114-203(a) (Supp. 1999). The date of the accrual of the cause of action is the date of the wrongful act complained of and no other time. Ark. Code Ann. § 16-114-203(b) (Supp. 1999). Here, however, Ms. Meadors claims that the statute of limitations was tolled by Dr. Still's fraudulent concealment.

The crux of Ms. Meadors's argument is that in 1997, Dr. Brueck read Dr. Still's operative report from the 1984 surgery to say that the final volume of the right breast implant was 175 cc. This misstatement in the operative report was relied on by Dr. Brueck, as a prelude to his surgery. The wrong information about the breast implant is comparable to a foreign-object case, according to Ms. Meadors, where a doctor leaves a foreign object in the patient's body following surgery. She cites this court specifically to Howard v. Northwest Arkansas Surgical Clinic, P.A., 324 Ark. 375, 921S.W.2d 596 (1996) (barbed tip of a needle left in patient's breast after tissue excised for biopsy); and Burton v. Tribble, 189 Ark. 58, 70 S.W.2d 503 (1934) (physician negligently left a roll of gauze in patient's stomach after performing surgery). In Howard, we made these pronouncements in concluding that the statute of limitations was tolled: "The alleged act of concealment is part and parcel of the wrongful act complained of. Until the concealment ends, the wrongful act continues." 324 Ark. at 383, 921 S.W.2d at 600. Also, in Howard, there was evidence that the physician involved had been informed that the foreign object remained in his patient and took no action. Moreover, the patient had no way of detecting the fraud. We held, as a result, that the limitations period was tolled even though the medical malpractice statute of limitations, § 16-114-203(b), provided that "[t]he date of the accrual of the cause of action shall be the date of the wrongful act complained of and no other time."

Using these foreign-object cases as her legal authority, Ms. Meadors posits that Dr. Still should have known what he wrote in his operative report and that he had a duty to inform her if he made a...