Robinson v. Shah
| Decision Date | 18 April 1997 |
| Docket Number | No. 75665,75665 |
| Citation | 936 P.2d 784,23 Kan.App.2d 812 |
| Parties | Deanna ROBINSON, Appellant, v. Nasreen B. SHAH, M.D., Appellee. |
| Court | Kansas Court of Appeals |
Syllabus by the Court
1. In Kansas, where a person has a cause of action against another and is misled by the fraud and misrepresentation of such other person to the extent that the injured party permits the statute of limitations to bar his or her action, such injured party may sue the perpetrator for fraud and deceit, not on account of the original negligence but on account of the subsequent fraud and misrepresentation which deceived the injured party with the consequence that the time bar ran against the original action.
2. Fraud is discussed and defined.
3. Fraudulent actions by a physician taken in order to deceive the patient from discovering the physician's malpractice is not malpractice; it is fraud and should be treated as such.
4. Where a patient has a cause of action against a physician for negligence or malpractice and is deceived by the intentional and knowing lies and fraud of the physician to the extent that the patient, in reliance on the fraudulent concealment by the physician, does not bring an action for malpractice within the period of the applicable statute of limitations, the patient may maintain an action for fraud against the physician, not on account of the original negligence or malpractice, but on account of the fraud of the physician which deceived the patient with the consequence that the time bar ran against the original action.
5. The statute of limitations in an action for relief on the ground of fraud does not start to run until the plaintiff discovers the fraud or until the plaintiff learns such facts as would lead a reasonably prudent person to investigate.
6. Fraudulent concealment of the true facts by the perpetrator of a fraud will also toll the running of the 10-year statute of 7. The doctrine of equitable estoppel is discussed and applied.
repose to the same extent and on the same conditions as such fraudulent concealment tolls the statute of limitations.
8. A defendant in a malpractice case may not take advantage of a defense based on the statute of limitations or the statute of repose where the defendant's own intentional, knowing, and fraudulent concealment of facts from his or her patient has resulted in the patient's failure to bring the action within the period required by the statute of limitations and the statute of repose. Under such facts, a defendant will be equitably estopped from raising otherwise valid defenses such as the statute of limitations and/or the statute of repose.
Thomas E. Hayes and Benjamin M. Kieler, of Hayes & Kieler, L.L.C., Overland Park, for appellant.
William Tinker, Jr., of McDonald, Tinker, Skaer, Quinn & Herrington, P.A., Wichita, for appellee.
Before LEWIS, P.J., KNUDSON, J., and JOHN J. BUKATY, Jr., District Judge, Assigned.
The plaintiff appeals from a ruling by the trial court that her fraud and medical malpractice causes of action against the defendant were barred by the statute of limitations. The trial court's ruling was accompanied by the realization of all concerned that this case required the attention of the appellate courts. The facts in this action are particularly egregious and call into question the relationship between fraud and the statute of limitations. Procedurally, the plaintiff's lawsuit was dismissed as barred by the statute of limitations prior to a trial on the merits. Under those circumstances, all of the parties agree that we must accept the facts as presented by the plaintiff as true. Those facts are set out in the trial court's journal entry and have been adopted by this court as true and correct for the purposes of this appeal. We hasten to point out, however, that no trial on the merits has been had. It is possible, therefore, that the actual facts as proven at trial may not be precisely as we must assume them to be at this point. Nevertheless, for the purposes of this appeal, the plaintiff's version of the facts is assumed to be true and correct.
The plaintiff was a longtime patient of Dr. Nasreen B. Shah, M.D., hereinafter referred to as the defendant, and placed her physical well-being in the hands of that physician from 1975 to 1986. During that period of time, the defendant treated the plaintiff for various gynecological disorders.
On November 9, 1983, the defendant performed a total abdominal hysterectomy and bilateral salpingo-oophorectomy on the plaintiff. Approximately 1 week after the surgery, the plaintiff was discharged from the hospital and was assured that there were no complications or potential problems which might arise as a result of the surgery.
On the day after the plaintiff was discharged from the hospital, she began to experience abdominal distress. She consulted the defendant about these symptoms, and the defendant ordered x-rays to be taken of the plaintiff's kidneys, ureter, and bladder in an effort to explain her discomfort.
The x-rays were taken at St. Joseph Memorial Hospital and were read and interpreted by Dr. C.J. Cavanaugh, presumably a radiologist associated with that facility. Dr. Cavanaugh was of the opinion, after reading the x-rays, that they showed the presence of surgical sponges which had been left in the plaintiff's abdomen after surgery. Dr. Cavanaugh called the defendant and reported the findings of the x-rays and, in addition, sent to the defendant a copy of a written report which also reflected those findings.
Incredibly and shamefully, the defendant fraudulently concealed from the plaintiff the findings of these x-rays. Instead of being truthful, the defendant deliberately lied to the plaintiff and told her the x-rays were negative and that there were no apparent or unusual complications from the recent abdominal surgery, and she assured the plaintiff that she did not require further treatment.
At no time did the defendant reveal to the plaintiff the fact that she had left surgical sponges in the plaintiff's abdomen after the most recent surgery.
Over the next several years, the plaintiff continued to see the defendant for gynecological check-ups. She continued to experience abdominal pain and discomfort. The defendant, however, continued to conceal from the plaintiff the existence of the surgical sponges left in the plaintiff's abdomen.
The plaintiff ceased seeing the defendant as her physician in 1986. However, she consulted other physicians and continued to experience frequent pain and discomfort in her abdomen as well as intestinal, urological, and gynecological problems. Although the plaintiff brought her complaints to the attention of other physicians, no one was able to diagnose the source of her problems.
In 1993, one of the physicians attending to the plaintiff's problems diagnosed a pelvic mass, which he felt could be causing some discomfort. On August 11, 1993, the plaintiff underwent pelvic sonograms and x-rays, which revealed the existence of retained surgical sponges.
The plaintiff contends the defendant, from and after November 18,1983, had actual knowledge of the presence of retained surgical sponges in the plaintiff's abdomen and well knew the potential of future complications which could arise from this condition. Despite this knowledge, the plaintiff contends, the defendant fraudulently concealed the existence of this condition from the plaintiff.
The trial court found that the plaintiff was unable to discover the fact that the defendant had negligently left surgical sponges in her abdomen and that this fact was fraudulently concealed from the plaintiff, who did not discover the defendant's fraud until August 11, 1993.
This action was filed on August 16, 1994.
The plaintiff's legal problems are obvious. According to her factual contentions, in 1983, the defendant left surgical sponges in the plaintiff's abdomen and knew she had done so no later than November 18, 1983. Despite such knowledge, the defendant fraudulently concealed the existence of the retained sponges from the plaintiff and lied to her about the nature of her condition. It was not until August 11, 1993, that the plaintiff knew or could have known what the defendant had done. This is a passage of nearly 10 years. All of the related statutes of limitations and statutes of repose had expired. The plaintiff was without a remedy, and the defendant was home free unless an exception exists to preserve her causes of action against the defendant. If no such exception exists, the defendant will be rewarded for her fraud in concealing from the plaintiff that surgical sponges had been left in her abdomen. Over 10 years have passed since the defendant's act of fraudulent concealment. The trial court held that all of the plaintiff's potential legal remedies against the defendant have been outlawed by the statute of limitations. This decision is a direct result of the defendant's fraudulent concealment of the plaintiff's condition. The defendant now seeks to use the statute of limitations as a shield from the consequences of her negligence and her fraud. This is an intolerable situation which we ought not ignore. We do not believe the law is powerless to correct such an injustice. We must decide whether the defendant is to be rewarded for her fraudulent conduct.
As we view this lawsuit, the following statutes of limitation and statutes of repose are relevant:
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"(7) An action arising out of the rendering of or failure to render professional services by a health care provider, not arising on contract.
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"(c) A cause of action arising out of the rendering of or the failure to render professional services by a health care provider shall be deemed to have accrued at the time of the occurrence of the act giving rise to the cause of action, unless the fact of injury is...
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