Tayborn v. Burstein, 52939

• Decision Date: 01 March 1988
• Docket Number: No. 52939,52939
• Parties: Inez TAYBORN and Gregory Tayborn, Plaintiffs-Appellants, v. Robert BURSTEIN, M.D., Defendant-Respondent.
• Court: Missouri Court of Appeals

Page 824

748 S.W.2d 824

Inez TAYBORN and Gregory Tayborn, Plaintiffs-Appellants, v. Robert BURSTEIN, M.D., Defendant-Respondent.

No. 52939.

Missouri Court of Appeals,

Eastern District,

Division Five.

March 1, 1988.

Motion for Rehearing and/or Transfer to

Supreme Court Denied

March 30, 1988.

Application to Transfer Denied May 17, 1988.

Jeanene Moenckmeier, St. Louis, for plaintiffs-appellants.

Gary P. Paul, Brinker, Doyen & Kovacs, P.C., Clayton, for defendant-respondent.

CARL R. GAERTNER, Judge.

Plaintiffs Inez and Gregory Tayborn appeal from a summary judgment in their medical malpractice action against Doctor Robert Burstein. We affirm.

Dr. Burstein treated Inez Tayborn from August 1975 to February 1982. During this time, Mrs. Tayborn continually complained of a small lump in her left breast. The doctor repeatedly reassured her that it was not a problem. During 1981 she experienced periodic pain and swelling in the left breast but the doctor continued to reassure her. Finally, on February 29, 1982 ¹, Dr. Burstein referred Mrs. Tayborn to Dr. Shale Rifkin, who performed a biopsy and removed her left breast.

On March 9, 1982, the day after her discharge from the hospital, Mrs. Tayborn and her husband retained William D. England, an attorney to represent them "in any and all legal claims arising out of a potential medical malpractice claim against Dr Robert Burstein." The Tayborns gave England a history of Mrs. Tayborn's treatment by Dr. Burstein and told him that, while Mrs. Tayborn was undergoing surgery, Dr. Burstein said to Mr. Tayborn "this was the second goof he [Burstein] made that week."

With his clients' authorization, England contacted Dr. Rifkin who advised him that Mrs. Tayborn suffered from a rapidly growing breast carcinoma and that he was of the opinion that Dr. Burstein's treatment was proper. Mr. England then consulted another physician who, after reviewing the records, confirmed Dr. Rifkin's opinion. This doctor added that because the tumor had been removed before any malignancy had spread to the lymph nodes, an earlier discovery and excision of the tumor would not have affected the patient's prognosis. England advised his clients of the two negative medical opinions and informed Mrs. Tayborn by letter that, if she chose to proceed with her claim, they would next have her records reviewed by an organization which furnishes medical opinions to lawyers. This review would cost $600. The letter requested that Mrs. Tayborn advise "whether you want to spend this amount of money in order to determine whether we can ultimately obtain an expert witness who says that you have a case." Plaintiffs did not respond to this letter and had no further contact with Mr. England.

In February, 1983, Mrs. Tayborn joined a group called Reach to Recovery. After attending medical lectures, viewing films and reading pamphlets on breast cancer, she became convinced that her earlier suspicions regarding Dr. Burstein's improper treatment were correct. She consulted her present lawyers in September, 1983.

On April 11, 1985, this lawsuit was filed in the Circuit Court of the City of St. Louis ² against Drs. Burstein and Rifkin, alleging Burstein had negligently failed to diagnose the breast cancer and that he and Rifkin fraudulently concealed the true facts. ³ It was further alleged that plaintiffs discovered defendant's fraudulent acts on September 10, 1983, the date they consulted the present attorneys. Dr. Burstein filed a motion for summary judgment based on the two year statute of limitations on actions against health care providers, § 516.105, RSMo.1986. The trial court sustained the motion. Plaintiffs appeal asserting that fraudulent concealment is an improper act tolling the statute of limitations pursuant to § 516.280, RSMo.1986.

Summary judgment is an appropriate response to a statute of limitations contention. Hasemeier v. Metro Sales, Inc., 699 S.W.2d 439, 441 (Mo.App.1985) (citing Dixon v. Shafton, 649 S.W.2d 435, 440 (Mo. banc 1983)). The moving party retains the burden of proof and if there are any doubts as to the facts summary judgment is unwarranted. State v. Highway Com'n. v. Keeley, 715 S.W.2d 338, 339 (Mo.App.1986). However, even viewing the record in the light most favorable to plaintiffs, Ventimiglia v. Cutter Laboratories, 708 S.W.2d 772, 775 (Mo.App.1986), we can find no error in the trial court's order.

Section 516.105, RSMo.1986, sets the statute of limitations in medical malpractice cases at two years from the date of the occurrence. In many medical malpractice cases, the statute will not begin to run until the date the defendant ceases to treat the plaintiff for the negligent injury. Ventimiglia, 708 S.W.2d at 774. In plaintiffs' case, this would start the two year period on February 29, 1982. Thus, plaintiffs' action is untimely unless section 516.280 applies to toll the statute of limitations.

The saving feature of § 516.280 is triggered by a defendant's "improper act [which] prevent[s] the commencement of an action." Fraudulent concealment of facts giving rise to a cause of action for medical malpractice may constitute such an improper act. Smile v. Lawson, 435 S.W.2d 325, 327 (Mo. banc 1968). It is equally well established that a plaintiff who relies upon fraudulent concealment to toll the statute of limitations has the burden of proving each of the following six elements:

(1) In treating the plaintiff, the doctor did or failed to do something which caused the injury;

(2) The doctor's conduct failed to meet the required standards of professional competence and was therefore negligent;

(3) The doctor had actual knowledge that he caused the injury;

(4) With that knowledge the doctor intended by his post-injury conduct and statements to conceal from the patient the existence of a claim for malpractice;

(5) The doctor's acts were fraudulent; and

(6) Patient was not guilty of a lack of diligence in sooner ascertaining the truth. Swope v. Printz, 468 S.W.2d 34, 38-9 (Mo.1971); Clair v. Reproductive Health Services, 720 S.W.2d 793, 795 (Mo.App.1986); Sanders v. H. Nouri, M.D., Inc., 688 S.W.2d 24, 27 (Mo.App.1985); Hershley v. Brown, 655 S.W.2d 671, 676 (Mo.App.1983); Brewington v. Raksakulthi, 584 S.W.2d 112, 114 (Mo.App.1979).

Nothing in the evidence presented to the trial court even remotely tends to support plaintiffs' burden of proving that Dr. Burstein, by his conduct or statements, intentionally concealed from plaintiffs the existence of a malpractice claim. Indeed, plaintiffs do not allege that they ever learned of any new facts; they only allege that, through...