IN THE COURT OF APPEALS OF IOWA
No. 20-1124 Filed October 6, 2021
ELIZABETH DOWNING and MARCELLA BERRY AS CO-ADMINISTRATORS OF THE ESTATE OF LINDA BERRY, Plaintiffs-Appellants,
vs.
PAUL GROSSMAN, M.D. and CATHOLIC HEALTH INITIATIVES IOWA, CORP. D/B/A MERCY MEDICAL CENTER, MERCY MEDICAL CENTER-WEST LAKES, and MERCY SURGICAL AFFILIATES, Defendants-Appellees. ________________________________________________________________
Appeal from the Iowa District Court for Polk County, David Porter, Judge.
Plaintiffs appeal from the district court’s grant of summary judgment in
defendants’ favor. REVERSED AND REMANDED.
Steve Hamilton and Molly M. Hamilton of Hamilton Law Firm, P.C., Clive,
for appellants.
Stacie M. Codr and Joseph F. Moser of The Finley Law Firm, P.C., Des
Moines, for appellees.
Considered by Bower, C.J., and Tabor and Ahlers, JJ. 2
AHLERS, Judge.
This is a medical malpractice action brought by the co-administrators of the
estate of Linda Berry.1 The defendants are various individuals and organizations
involved in Linda’s medical care.2 The medical professionals assert the action is
time-barred by the statute of repose set forth in Iowa Code section 614.1(9) (2018).
Linda’s estate acknowledges the action would be time-barred by the statute of
repose, but they assert the fraudulent-concealment exception applies to defeat the
statute-of-repose defense. The district court granted summary judgment in favor
of the medical professionals, resulting in dismissal of Linda’s estate’s action.
Finding a genuine issue of material fact over whether Linda’s estate’s claim of
fraudulent concealment defeats the medical professionals’ statute-of-repose
defense, we reverse the district court’s grant of summary judgment and remand
for further proceedings.3
1 The suit was started by Linda Berry, but, after her death, her daughters, as co- administrators of Linda’s estate, were substituted as plaintiffs. For descriptive clarity, we will refer to the plaintiffs as “Linda’s estate.” Accord Iowa R. App. P. 6.904(1) (encouraging use of names or descriptive terms for parties rather than use of designations). 2 We will refer to all defendants, both individuals and organizations, collectively as
“the medical professionals,” unless context dictates need for reference to a specific defendant. 3 The medical professionals’ motion for summary judgment also alleges the claims
of Linda’s estate are barred by the statute of limitations and punitive damages are not available. The court granted summary judgment solely on the statute of repose issue and did not address the statute of limitations or punitive damages issues. While Linda’s estate briefed the statute of limitations and punitive damages issues to us, we decline to address these issues for the first time on appeal. See Plowman v. Ft. Madison Cmty. Hosp., 896 N.W.2d 393, 413 (Iowa 2017) (stating an appellate court functions as “a court of review, not of first view” (quoting Cutter v. Wilkinson, 544 U.S. 709, 718 (2005))). 3
I. Factual and Procedural Background.
Viewed in the light most favorable to Linda’s estate, the record supports the
following fact findings. In 2004, Linda was hospitalized at Mercy Hospital4 and a
computerized tomography (CT) scan revealed a kidney mass. In 2006, Linda was
again treated at Mercy Hospital, this time for what was ultimately diagnosed as a
urinary tract infection. A CT scan again revealed a kidney mass. Linda—and now
her daughters following Linda’s passing—contends she was never informed of the
kidney mass on either occasion.
On October 1, 2009, Linda was again seen at Mercy Hospital, arriving at
the emergency room with complaints of abdominal pain. Dr. Paul Grossman,5 a
named defendant in this action, was consulted regarding Linda’s complaints.
Linda was examined, and a CT scan was performed. Linda was told the CT scan
results were normal. She was diagnosed with constipation and discharged.
As Linda’s daughter drove her home, the daughter received a call from a
resident doctor supervised by Dr. Grossman. The resident told the daughter that
Linda needed to return to the hospital because further review of the CT scan results
caused the medical professionals to conclude “not everything is okay.” Upon
returning to the hospital, Linda was told she had colitis and was given a prescription
for an antibiotic. Unbeknownst to Linda, this CT scan also revealed the mass on
Linda’s right kidney, which had increased in size from when it was detected in the
4 Defendant Catholic Health Initiatives Iowa, Corp. operates hospital facilities known as Mercy Medical Center and Mercy Medical Center-West Lakes. For ease of reference, we will refer to either facility as Mercy Hospital, as differentiating between the two sites is not necessary to address the issues at hand. 5 While the petition names Dr. “Grossman” as defendant, the doctor’s last name is
also spelled “Grossmann” throughout the record. We will use “Grossman.” 4
2004 and 2006 CT scans. Linda6 and her daughters insist the doctors did not
inform her of the kidney mass at that time. This claim is supported by the fact the
discharge instructions given to Linda from Mercy Hospital do not mention the
kidney mass.
Two days later, Linda was again in the Mercy Hospital emergency room for
abdominal pain. Another CT scan was performed, which again showed the kidney
mass. Another doctor examined Linda on this visit, but Dr. Grossman was
informed of the radiology recommendation to follow up regarding the mass to
ensure it was not cancerous. As with prior scans, Linda and her daughters both
contend none of the medical professionals informed Linda of the mass.
On October 6, 2009, Dr. Grossman prepared and sent a letter to Linda’s
primary care physician outside the Mercy Hospital system detailing his treatment
of her colitis. The letter makes no mention of the kidney mass. In December 2009,
Dr. Grossman discharged Linda from his care.
On April 24, 2016, Linda was again in the Mercy Hospital emergency room
after she fell and broke her arm. A CT scan again revealed the kidney mass, and
Linda was referred to the University of Iowa Hospital for treatment of her arm.
Upon discharge from Mercy Hospital, a nurse mentioned the kidney mass to Linda.
According to Linda and her daughters, this was the first time they were informed
of the mass. Linda was later diagnosed with metastatic renal cell carcinoma and
died from that disease on May 22, 2019.
6 Linda’s testimony was preserved by deposition prior to her death. 5
Linda filed this suit alleging medical negligence in 2018, prior to her death.
After her death, her daughters, as co-administrators of her estate, were substituted
as plaintiffs. The medical professionals asserted an affirmative defense that the
claims against them are barred by the statute of repose. Linda’s estate responds
by claiming the defense does not apply because the medical negligence was
fraudulently concealed. The district court granted summary judgment in favor of
the medical professionals on the basis that the alleged malpractice and the alleged
concealment are in essence the same, thereby making the exception to the statute
of repose inapplicable. Linda’s estate appeals.
II. Timeliness of the Appeal
Before proceeding to the merits of the appeal, we first address the medical
professionals’ claim that the estate’s appeal is untimely. Ordinarily, a notice of
appeal must be filed within thirty days of the filing of the final order or judgment
being appealed. Iowa R. App. P. 6.101(1)(b). However, if a motion is timely filed
pursuant to Iowa Rule of Civil Procedure 1.904(2), the deadline for filing notice of
appeal is thirty days after the filing of the ruling on the motion. Id. The timeliness
of filing notice of appeal presents a jurisdictional issue—that is, without a timely
filed notice, we are not at liberty to hear an appeal. Valles v. Mueting, 956 N.W.2d
479, 483 (Iowa 2021).
In this case, an issue over the timeliness of Linda’s estate’s notice of appeal
arises because, after the district court filed its order granting the medical
professionals’ motion for summary judgment and dismissing the estate’s claim, the
estate filed a motion pursuant to rule 1.904(2) asking the district court to modify or
amend its ruling. The district court denied the rule 1.904(2) motion. The estate 6
filed notice of appeal within thirty days of that ruling, but more than thirty days after
the original summary judgment ruling was filed. The medical professionals assert
the notice of appeal is untimely because the thirty-day appeal period is measured
from the original summary judgment ruling rather than the ruling on the rule
1.904(2) motion due to the rule 1.904(2) motion simply rehashing the estate’s
resistance to the summary judgment motion. Therefore, according to the medical
professionals, the motion was not a “proper” rule 1.904(2) motion, so it did not toll
the time for filing notice of appeal. In support of their argument, the medical
professionals rely on Hedlund v. State, which generally held that a rule 1.904(2)
motion that is a pure “rehash of legal issues” addressed in the order that is the
target of the rule 1.904(2) motion is not a proper rule 1.904(2) motion and does not
extend the deadline for filing notice of appeal. 875 N.W.2d 720, 727 (Iowa 2016).
Due to amendments to the rules of appellate procedure that became
effective March 1, 2017, we need no longer resolve the often murky issue whether
a rule 1.904(2) motion is a “proper” motion that tolls the deadline for filing notice of
appeal, as was required by Hedlund. The applicable rule of appellate procedure
in effect when Hedlund was decided read as follows:
6.101(1) Time for filing a notice of appeal from final orders and judgments. .... b. All other cases. A notice of appeal must be filed within 30 days after the filing of the final order or judgment. However, if a motion is timely filed under Iowa R. Civ. P. 1.904(2) or Iowa R. Civ. P. 1.1007, the notice of appeal must be filed within 30 days after the filing of the ruling on such motion.
After the amendments that took effect March 1, 2017, rule 6.101(1)(b) remained
unchanged, but a new subparagraph 6.101(1)(c) was added that reads: 7
c. Timely filing of motion defined. For purposes of subparts a and b above, a motion is considered timely if it has been filed by the applicable deadline and asks the court to reconsider, enlarge, or amend its order, ruling, judgment, or decree. Whether a motion is proper or not does not affect its timeliness. Provided, however, that a motion will not be considered timely if the same party has previously filed a motion to reconsider, enlarge, or amend the court’s order, ruling, judgment, or decree, unless the court has modified its order, ruling, judgment, or decree and the subsequent motion is directed only at the modification.
(Emphasis added.). If the plain language of newly added rule 6.101(1)(c) was not
enough to make it clear the amendment superseded Hedlund’s holding that only a
“proper” rule 1.904(2) motion extended the deadline for filing notice of appeal, the
published comments to rule 6.101 remove any further uncertainty on this point:
Rule 6.101[(1)](c) is intended to supersede prior case law that held a timely rule 1.904(2) motion must also have been “proper” to extend the time for appeal. See, e.g., Hedlund v. State, 875 N.W.2d 720, 725 (Iowa 2016). To obviate controversies over whether a rule 1.904(2) motion tolls the time for appeal, rule 6.101 authorizes any timely rule 1.904(2) motion to extend the appeal deadline, subject to an exception for successive motions. Under rule 6.101[(1)](c), the timely filing of a rule 1.904(2) motion extends the deadline for filing a notice of appeal or an application for interlocutory appeal. See Iowa R. App. P. 6.101(1)(b) & 6.104(1)(b)(2).
At the same time the noted changes to the rules of appellate procedure were made,
changes were also made to Iowa Rule of Civil Procedure 1.904 to clarify that
Hedlund’s “proper motion” requirement no longer applies.7
7 The amendments to rule 1.904 also took effect March 1, 2017. The amendments included a modification to rule 1.904(2) to add “reconsidered” to the list of actions the district court could take in response to a motion under the rule—joining “enlarged” or “amended.” The amendments also added new subrules 1.904(3) and 1.904(4) to address motions directed at other orders besides a trial ruling and successive motions. The published comments to rule 1.904 following the amendments echoed the comments accompanying the changes to the rules of appellate procedure: 8
The amended rules of civil and appellate procedure that removed Hedlund’s
“proper motion” requirement became effective long before any of the relevant
action in this case. Based on those rules, the estate’s rule 1.904(2) motion
extended the appeal deadline to thirty days after the ruling on the motion. As there
is no dispute the estate’s notice of appeal met that deadline, this appeal is timely
and we have jurisdiction to hear it.
III. Summary Judgment Analysis
We review the grant of a motion for summary judgment for correction of
errors at law. Iowa Ass’n of Bus. & Indus. v. City of Waterloo, 961 N.W.2d 465,
470 (Iowa 2021). “[W]e view the record in the light most favorable to the
nonmoving party and allow that party all reasonable inferences that can be drawn
from the record.” Wernimont v. Wernimont, 686 N.W.2d 186, 189 (Iowa 2004). In
viewing the evidence in that manner, a motion for summary judgment should only
be granted if:
the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.
Rules 1.904(3) and 1.904(4) supersede prior case law that held a timely rule 1.904(2) motion must also have been “proper” to extend the time for appeal. See, e.g., Hedlund v. State, 875 N.W.2d 720, 725 (Iowa 2016). To obviate controversies over whether a rule 1.904(2) motion tolls the time for appeal, the rule authorizes any timely rule 1.904(2) motion to extend the appeal deadline, subject to one exception in rule 1.904(4) [addressing successive motions]. Under rule 1.904, the timely filing of a rule 1.904(2) motion extends the deadline for filing a notice of appeal or an application for interlocutory appeal. See Iowa R. App. P. 6.101(1)(b) & 6.104(1)(b)(2). 9
Otterberg v. Farm Bureau Mut. Ins. Co., 696 N.W.2d 24, 27 (Iowa 2005) (quoting
Iowa R. Civ. P. 1.981(3)).
The medical professionals contend summary judgment was properly
granted because the claim is barred by the statute of repose. Linda’s estate, on
the other hand, contends there are factual disputes surrounding whether there was
fraudulent concealment in this case, which the estate asserts would trigger an
exception to the statute-of-repose defense.
Iowa’s statute of repose as it relates to medical malpractice claims is set
forth in Iowa Code section 614.1(9) as follows:
[I]n no event shall any action be brought more than six years after the date on which occurred the act or omission or occurrence alleged in the action to have been the cause of the injury or death unless a foreign object unintentionally left in the body caused the injury or death.
Iowa Code § 614.1(9)(a). “Unlike the statute of limitations, under which a claim
accrues for injuries caused by medical negligence when the plaintiff knew, or
through the use of reasonable diligence should have known, of the injury, a statute
of repose runs from the occurrence of the act causing the injury.” Est. of Anderson
v. Iowa Dermatology Clinic, PLC, 819 N.W.2d 408, 414 (Iowa 2012). Here, there
is no dispute Linda’s estate did not file suit within six years of the claimed act of
malpractice that is alleged to have resulted in Linda’s injury (i.e., Dr. Grossman’s
alleged failure to inform Linda of the kidney mass in 2009). As a result, the statute
of repose is a complete defense to the estate’s claim if the medical professionals
are allowed to assert it. The estate seeks to avoid the statute-of-repose defense
by application of the doctrine of fraudulent concealment. 10
Fraudulent concealment is a common law doctrine that “developed to
‘prevent a party from benefiting from 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.’” Id. (quoting Christy v. Miulli, 692 N.W.2d 694, 702 (Iowa
2005)). The doctrine is a form of equitable estoppel that prevents a party from
raising a statute-of-limitations or statute-of-repose defense in certain
circumstances. Id. The doctrine survived codification of the statute of repose set
forth in section 614.1(9). Id. If the doctrine applies, it “allows a plaintiff to pursue
a claim that would be otherwise time barred under the statute of repose.” Id.; see
also Christy, 692 N.W.2d at 701 (“Equitable estoppel bars a defendant from
pleading the running of statute of limitations [or statute of repose] if the plaintiff is
induced to refrain from bringing a timely action by the defendant’s fraud,
misrepresentation, or deception.” (quoting 51 Am. Jur. 2d Limitations of Actions
§ 380 (2000))).
The district court rejected the fraudulent-concealment claim because it
viewed the medical professionals’ alleged failure to disclose Linda’s growing
kidney mass as forming the heart of both the fraudulent-concealment and the
medical-malpractice claims. True, the act of concealment must be separate from
and subsequent to the liability-producing act of malpractice. Anderson, 819
N.W.2d at 414–15. A doctor’s failure to disclose cannot be the ground of liability
as well as the basis for the fraudulent concealment. Van Overbeke v. Youberg,
540 N.W.2d 273, 276 (Iowa 1995), abrogated on other grounds by Christy, 692
N.W.2d at 700–01. If such were permitted, there would essentially be no statute
of limitations for an action regarding a doctor’s negligent failure to inform a patient 11
of something. Id. In addition to separate acts, there must be temporal separation
of the acts of negligence and the acts of concealment. Id. “[T]he concealment
must take place after the alleged acts of negligence occurred.” Id.
We do not view the alleged medical negligence and concealment as broadly
as the district court. Viewing the evidence in the light most favorable to Linda’s
estate, the negligence occurred no later than Linda’s initial visit to the Mercy
Hospital emergency room in October 2009 when a Mercy Hospital radiologist
reviewed Linda’s then-fresh CT scan, noted a kidney mass, and recommended
further evaluation, but the medical professionals failed to disclose this information
to Linda. By contrast, Linda’s estate alleges the fraudulent concealment occurred
when Dr. Grossman and the resident supervised by Dr. Grossman gained actual
knowledge of Linda’s kidney mass and concealed this information from her and
her family in multiple direct interactions following Linda’s examination in the
hospital on October 1, 2009. These interactions began when Linda and her
daughter returned to the hospital after receiving the resident’s cryptic call that “not
everything is okay” in Linda’s CT scan. Linda’s daughter testified this phone call
occurred while they were on the interstate on the way home from the hospital,
which provides the temporal break to constitute a separate act from the alleged
negligence during the initial examination in the hospital immediately prior. See id.
These interactions ended in December 2009 when Dr. Grossman discharged
Linda from her care after multiple follow-up appointments. The doctors’ failure to
inform Linda of her kidney mass despite their actual knowledge of the kidney mass
creates a fraudulent-concealment claim distinct from the medical professionals’
prior failure to inform Linda of the mass due to their negligence. In addition to 12
these concealments, Dr. Grossman’s October 6 letter to Linda’s primary care
physician, which omitted any reference to the kidney mass, is a further act of
concealment distinct from the alleged malpractice.
Having alleged acts of fraudulent concealment separate from the earlier
acts of negligence, Linda’s estate can defeat the statute-of–repose defense by
pleading and proving by “a clear and convincing preponderance of the evidence”
the following:
(1) The defendant has made a false representation or has concealed material facts; (2) the plaintiff lacks knowledge of the true facts; (3) the defendant intended the plaintiff to act upon such representations; and (4) the plaintiff did in fact rely upon such representations to [the plaintiff’s] prejudice.
Anderson, 819 N.W.2d at 414–15. Usually, a plaintiff asserting fraudulent
concealment must prove the defendant “engaged in affirmative conduct to conceal
the plaintiff’s cause of action.” Id. at 415. However, in instances where the plaintiff
and defendant are in a confidential or fiduciary relationship—such as the doctor
and patient relationship here—that requirement is relaxed. Id.
Viewing the evidence in the light most favorable to Linda’s estate, including
accepting the deposition testimony from Linda and her daughters, the record
shows a genuine issue of material fact on all four elements. Linda and her
daughter testified none of the medical professionals informed them of Linda’s
kidney mass until 2016, well after the mass was noted and follow-up recommended
in the 2004, 2006, and 2009 CT scan reports. They further testified they were
unaware of the tumor until 2016, and the late disclosure prevented Linda from
seeking cancer treatment years sooner, leading to her death from the cancer in
2019. 13
As to evidence Dr. Grossman and the resident he supervised intended
Linda to act upon their representations, the doctors’ testimony establishes they
personally knew of Linda’s kidney mass by the time they discussed her CT scan
report shortly after she initially left the hospital on October 1, 2009. They further
testified the report was so concerning they called her back into the hospital
specifically to discuss the kidney mass. Dr. Grossman testified this was only the
second time in twenty-three years he had seen a patient called back into the
emergency room after leaving the hospital. Nevertheless, Linda’s daughter
testified she and Linda spoke to the resident when they returned and he only
discussed Linda’s colitis. Regardless of the reason for this nondisclosure, viewing
the evidence in the light most favorable to Linda’s estate, Dr. Grossman knew of
the mass but did not inform Linda or her family of the mass in multiple in-person
follow-up appointments with her through her discharge in December 2009, and Dr.
Grossman did not mention the mass in the October 6 letter to Linda’s primary care
provider that otherwise described Linda’s October 1 emergency room visit and
ensuing treatment.8
While Dr. Grossman and the resident hypothesize that they likely did
disclose Linda’s kidney based on their customary practices, they cannot be sure
they did so, given that the interaction happened several years prior to their
depositions and the specifics are not dictated in their notes from Linda’s
appointments. Linda’s estate produced evidence supporting their claims, including
8 The district court disregarded the letter because it states it was “mailed before doctor’s review.” Dr. Grossman explicitly testified he dictated the letter. Whether the letter accurately reflects Dr. Grossman’s dictation even though the doctor did not review it before mailing is a question for the factfinder. 14
testimony from Linda and her daughters that the medical professionals did not
inform them of Linda’s tumor before 2016. Further supporting Linda’s estate is the
contemporaneous medical records that do not explicitly say Linda or her family
were informed of the kidney mass prior to 2016 and Linda’s discharge notes from
her October 1, 2019 emergency room visit that does not mention the kidney mass.
The evidence allows differing reasonable inferences as to whether the medical
professionals failed to inform Linda and her family of Linda’s kidney mass and then
fraudulently concealed the mass from Linda and her family. These genuine issues
of material fact preclude summary judgment at this time.
III. Conclusion
Linda’s estate filed a timely notice of appeal following the ruling on the rule
1.904(2) motion. Summary judgment is not appropriate on the medical
professionals’ statute-of-repose defense because genuine issues of material fact
exist as to whether the medical professionals fraudulently concealed the kidney
mass from Linda and her estate. The conflicting evidence is for the fact finder to
resolve at trial. As such, we reverse the district court’s grant of summary judgment
and remand for further proceedings.
REVERSED AND REMANDED.