Borderlon v. Peck

661 S.W.2d 907, 26 Tex. Sup. Ct. J. 494, 1983 Tex. LEXIS 381

• Court: Texas Supreme Court
• Decided: July 6, 1983
• Docket: C-1864
• Status: Published

Opinions

MeGEE, Justice.

The sole issue in this medical malpractice case is whether article 4590i, section 10.01,¹ abolishes fraudulent concealment as a basis for extending limitations in health care liability actions. The court of appeals held section 10.01 establishes an absolute statute of limitations for all forms of medical malpractice, regardless of fraudulent concealment, and affirmed summary judgment in favor of the doctor. 643 S.W.2d 233. We reverse the judgments of the lower courts and remand the cause for trial.

On January 17,1979, Dr. Reigh Peck performed surgery on Catherine Borderlon to remove obstructions from her intestines. During the operation, a suture needle broke and Dr. Peck purposely left a portion of the needle in Borderlon’s abdominal region. Borderlon testified in deposition that Dr. Peck did not inform her of his decision to leave the needle in her abdomen. Dr. Peck testified in deposition that he did inform Borderlon of this fact. Dr. Peck last treated Borderlon on February 21, 1979. On February 25, 1979, Borderlon underwent x-rays, and was informed there was a small foreign linear object in her abdomen. On March 2, 1979, Borderlon had another operation during which the needle was discovered and removed.

Borderlon filed this medical malpractice action on February 27, 1981, six days after the two-year limitations period in section 10.01 had run. Dr. Peck moved for summary judgment based on limitations. Border-lon subsequently filed a response in which she alleged Dr. Peck fraudulently concealed from her the fact he left the needle inside her. The trial court granted summary judgment for Dr. Peck, and the court of appeals affirmed. The court of appeals held the legislature intended to establish an absolute time limit in which suits must be filed, thereby abolishing fraudulent concealment as an exception to the defense of limitations.

Article 4590i, section 10.01 provides in pertinent part:

Notwithstanding any other law, no health care liability claim may be commenced unless the action is filed within two years from the occurrence of breach or tort or from the date the medical or health care treatment that is the subject of the claim or the hospitalization for which the claim is made is completed; ...

Fraudulent concealment is based upon the doctrine of equitable estoppel. In the proper case, invocation of fraudulent concealment estops a defendant from relying on the statute of limitations as an affirmative defense to plaintiff’s claim. Where a defendant is under a duty to make disclosure but fraudulently conceals the existence of a cause of action from the party to whom it belongs, the defendant is es-topped from relying on the defense of limitations until the party learns of the right of action or should have learned thereof through the exercise of reasonable diligence. Estate of Stonecipher v. Estate of Butts, 591 S.W.2d 806, 809 (Tex.1979); Nichols v. Smith, 507 S.W.2d 518, 519 (Tex.1974); Thompson v. Barnard, 142 S.W.2d 238, 241 (Tex.Civ.App.—Waco 1940) aff’d, 138 Tex. 277, 158 S.W.2d 486 (1942); Sherman v. Sipper, 137 Tex. 85, 152 S.W.2d 319, 321 (1941); Fitzpatrick v. Marlowe, 553 S.W.2d 190, 194 (Tex.Civ.App.—Tyler 1977, writ ref’d n.r.e.); Elsesser v. Cotham, 250 S.W.2d 591, 592 (Tex.Civ.App.—San Antonio 1952, no writ).

Because the physician-patient relationship is one of trust and confidence, Texas recognizes a duty on the part of the physician to disclose a negligent act or fact that an injury has occurred. Nichols v. Smith, 507 S.W.2d at 519; Fitzpatrick v. Marlowe, 553 S.W.2d at 194; Thompson v. Barnard, 142 S.W.2d at 241. Failure to disclose in such situations constitutes fraudulent concealment which will prevent the wrongdoer from perpetrating further fraud by using limitations as a shield.

We do not agree that- section 10.01 abolishes fraudulent concealment as an equitable estoppel to the defense of limitations. Texas courts have long adhered to the view that fraud vitiates whatever it touches, and have consistently held that a party will.not be permitted to avail himself of the protection of a limitations statute when by his own fraud he ,has prevented the other party from seeking redress within the period of limitations. To reward a wrongdoer for his own fraudulent contrivance would make the statute a means of encouraging rather than preventing fraud. Estate of Stonecipher v. Estate of Butts, 591 S.W.2d at 809; Ruebeck v. Hunt, 142 Tex. 167, 176 S.W.2d 738, 739 (1943); Glenn v. Steele, 141 Tex. 565, 61 S.W.2d 810, 810 (1933); Port Arthur Rice Milling Co. v. Beaumont Rice Mills, 105 Tex. 514, 522, 143 S.W. 926, 929 (1912); Heirs of Brown v. Brown, 61 Tex. 45, 59 (1884); Munson v. Hallowell, 26 Tex. 475, 484 (1863).

We hold, therefore, that article 4590i, section 10.01 does not abolish fraudulent concealment as an equitable estoppel to the affirmative defense of limitations under that statute.

Our holding does not imply a right of recovery by Borderlon. It merely permits her to present evidence, which, if believed, would estop Dr. Peck from pleading limitations as a bar to her claim for relief. The estoppel effect of fraudulent concealment ends when a party learns of facts, conditions, or circumstances which would cause a reasonably prudent person to make inquiry, which, if pursued, would lead to discovery of the concealed cause of action. Knowledge of such facts is in law equivalent to knowledge of the cause of action. Reubeck v. Hunt, 176 S.W.2d at 739; Glenn v. Steele, 61 S.W.2d at 810. A fact issue exists whether, in the exercise of reasonable diligence, Borderlon knew, or should have known on February 25, that the presence of the foreign object in her abdomen gave rise to a cause of action against Dr. Peck.

The judgments of the lower courts are reversed and the cause is remanded.

Dissenting opinion by BARROW, J., in which POPE, C.J., and CAMPBELL and WALLACE, JJ., join.

1 . All statutory references are to Texas Revised Civil Statutes Annotated.