Jones v. Central Arkansas Radiation Therapy Institute, Inc.

607 S.W.2d 334, 270 Ark. 988, 1980 Ark. LEXIS 1652

• Court: Supreme Court of Arkansas
• Decided: November 3, 1980
• Docket: 80-139
• Status: Published

Opinions

Richard L. Mays, Justice.

More than two years after appellant, Merlyn W. Jones, received radiation therapy from appellees, Dr. D. R. Harris and the Central Arkansas Radiation Therapy Institute, Inc., he and his wife filed suit against them alleging malpractice and fraudulent concealment. When appellees raised the two year malpractice statute of limitation as a bar to appellants’ action, the trial court dismissed appellants’ complaint. We reverse the trial court because appellants’ complaint sets forth sufficient facts of fraudulent concealment of the alleged malpractice to toll the statute of limitation.

Although Ark. Stat. Ann. § 37-205 (Repl. 1962) requires that all medical malpractice actions be brought within 2 years from the date of the alleged malpractice, this Court has long recognized that fraudulent concealment of one’s malpractice will toll the running of the statute of limitation. Crossett Health Center v. Croswell, 221 Ark. 874, 256 S.W. 2d 548 (1953).

In reviewing the trial court’s dismissal, we are obliged to accept as true all of the factual allegations of appellants’ complaint and draw all reasonable inferences from those alleged facts in favor of appellants. Griffin v. Georges, Inc., 267 Ark. 91, 589 S.W. 2d 24 (1979).

Appellants’ complaint alleged that as a proximate result of radiation treatment administered by appellees or about August 3, 1976, and thereafter, Mr. Jones received severe and permanent injuries, including, but not limited to, radiation and quadraplegia secondary to radiation myelitis ...” In their amended complaint, appellants allege that in July of 1978 Jones entered Veterans Administration Hospital in Little Rock, Arkansas and was subsequently released with a diagnosis of radiation myelitis. When he stopped by Dr. Harris’ office to show him what the radiation had done, Dr. Harris retorted, “well Merlyn, what did you do, come up here to make idle threats?” Dr. Harris is alleged to have examined appellant, admitted that there was damage, but to have told appellant that he was not convinced that the radiation treatment had caused it. He told appellant that he would have to secure his files from the Veteran’s Hospital and arrange another appointment. No appointment was arranged however, and after repeated calls, appellant was only able to arrange an appointment with Dr. Harris in late September or early October, after the statute pf limitation had run. Dr. Harris allegedly claimed that he could not obtain the necessary information from the Veteran’s Hospital to make a diagnosis and informed appellant that he would need to undergo certain tests. Dr. Harris also said that he would contact a Dr. Warren Boop, a neurosurgeon, about Jones’ condition before setting up another appointment. According to the complaint, Jones agreed but never heard from Dr. Harris or his office again.

We believe that appellants’ allegations present a factual issue as to fraudulent concealment. It may reasonably be inferred that Dr. Harris’ representation concerning the uncertainty about the cause of Jones’ condition was false and that his conduct thereafter was purposely dilatory to cover up its fraudulent character and prevent Jones from seeing another physician. But for this fraud, Merlyn Jones could have discovered the alleged malpractice before the statute of limitation ran. Therefore, since the statute of limitation may have been tolled by the fraudulent concealment, appellants’ action should not have been dismissed.

Reversed.

Fogleman, C.J., Holt and Stroud, JJ., dissent.