Smith v. Boyett

908 P.2d 508, 19 Brief Times Rptr. 1781, 1995 Colo. LEXIS 759, 1995 WL 736956

• Court: Supreme Court of Colorado
• Decided: December 11, 1995
• Docket: 94SC420
• Status: Published

Opinions

Justice KOURLIS

delivered the Opinion of the Court.

We granted certiorari to clarify the elements of knowing concealment under the Medical Malpractice Statute of Limitations¹, and to determine whether the plaintiffs’ claim in this case should have survived imposition of summary judgment. We affirm the court of appeals, both in its holding that a plaintiff need not confront a doctor with discovered negligence and then be misled by that doctor in order to qualify for the knowing concealment exception to the statute of limitations; and in its determination that the plaintiffs have raised material issues of disputed fact that preclude imposition of summary judgment, and remand with directions.

I.

We derive the following facts from the parties’ pleadings and briefs to the trial court. The facts are presented in the light most favorable to the plaintiffs, as is required at this juncture in the proceedings.

This appeal arises from a medical malpractice action that plaintiffs Patricia Boyett and Gary Boyett filed against Dr. Stuart L. Smith, Dr. Robert Weiss, and Lutheran Medical Center. On December 23, 1985, Dr. Smith operated on Ms. Boyett to remove her gallbladder. During surgery, Dr. Smith probed Ms. Boyett’s common duct and perforated it. The perforation allowed bile to leak into Ms. Boyett’s abdominal cavity causing extensive damage to her pancreas.

Five X-ray dye studies, called cholangio-grams, were performed on Ms. Boyett during surgery. They established that Dr. Smith’s probe of the common duct caused the perforation. The first film was used as a baseline to establish anatomy before surgery. The second and third cholangiograms were taken at approximately 6:00 p.m. after the gallbladder had been removed, but before Dr. Smith explored the common duet with a probe. They showed no leakage of dye into the abdominal cavity. The last two cholangio-grams, taken during the latter portions of the surgery at approximately 7:15 p.m. after the probe of the duct, showed that dye was leaking into the abdominal cavity instead of flowing into the duodenum.² One or two days after surgery, the official radiological interpretation of the operating room cholan-giograms was typed and placed in Ms. Boy-ett’s hospital chart. The report indicated that there probably was a leak from Ms. Boyett’s common duet and that the leak had developed during surgery.

Ms. Boyett was discharged on January 7, 1986, from Lutheran Medical Center. Her condition worsened and she was readmitted to the hospital on January 10, 1986. On January 17, 1986, Dr. Smith met with Ms. Boyett and told her that she had a hole in her common duct caused by a gallstone. On January 18,1986, Ms. Boyett was transferred to another hospital for ongoing treatments and additional surgery to repair the puncture. Ms. Boyett had no further contact with Dr. Smith after the transfer. Not until January of 1989 did Ms. Boyett learn that the hole in her common duct was caused by the gallbladder surgery.

On December 28, 1990, the Boyetts filed a medical malpractice suit against Dr. Smith.³ In their complaint, they alleged that Dr. Smith had negligently treated Ms. Boyett’s condition, thereby causing her injury. Specifically, the Boyetts alleged that Dr. Smith should have discovered and treated the hole in the common duct during surgery and that he failed to do so.⁴ The Boyetts admitted that they were told about the hole in the common duct in January of 1986, but assert that they were unaware that Dr. Smith’s failure to diagnose the hole and treat it earlier constituted negligence until February of 1989. In his answer, Dr. Smith denied the allegations and raised the affirmative defense of the statute of limitations pursuant to seetion 13-80-105, 6 C.R.S. (1985 Supp.).

Dr. Smith filed a motion for summary judgment alleging that the Boyetts’ suit was time-barred by section 13-80-105. Section 13-80-105 required all causes of action for medical malpractice to be instituted within three years of the act or omission that gave rise to the suit.⁵ See infra pp. 511-12. Because the Boyetts did not file suit against Dr. Smith until December 28, 1990, nearly five years after the alleged negligence took place, Dr. Smith argued that their claim was time-barred.

In response, the Boyetts claimed that their suit was not time-barred because Dr. Smith had knowingly concealed his negligent acts from them under section 13-80-105(l)(a).

The trial court granted summary judgment for Dr. Smith. Relying on Adams v. Richardson, 714 P.2d 921 (Colo.App.1986), the trial court found that the Boyetts had not satisfied the knowing concealment exception under section 13-80-105 because they were not able to set forth facts from which the jury could conclude that they suspected a wrong had been committed and were subsequently misled or misinformed by the doctor. The Boyetts appealed the trial court’s ruling to the Colorado Court of Appeals.

The court of appeals reversed. Boyett v. Smith, 888 P.2d 294 (Colo.App.1994). The court of appeals held that the knowing concealment exception does not require that the plaintiff suspect negligence prior to being misled. Id. at 296. The court of appeals further held that the Boyetts had sustained their burden of demonstrating a genuine issue of material fact regarding whether Dr. Smith had knowingly concealed his negligence from them. Id. Thus, the court of appeals reversed the trial court’s dismissal of the Boyetts’ case on summary judgment and remanded the case to the trial court for further proceedings. Dr. Smith petitioned for certiorari.

We granted certiorari to determine:

Whether the court of appeals erred in construing the provisions of § 13-80-105, 6A C.R.S. (1980 Supp.),[⁶] with respect to the elements required to establish knowing concealment.

Whether the court of appeals erred in concluding that a factual issue remained with respect to the application of the “knowing concealment” exception to the Medical Malpractice Statute of Limitations, § 13-80-105, 6A C.R.S. (1980 Supp.).

We hold that the knowing concealment exception to the Medical Malpractice Statute of Limitations, section 13-80-105, 6 C.R.S. (1985 Supp.), does not require a plaintiff to suspect negligence, confront her physician, and then be misled. In addition, we hold that the Boyetts have plead sufficient facts to raise an issue of material fact as to whether Dr. Smith knowingly concealed his negligence from them. Therefore, we affirm the judgment of the court of appeals.

II.

The pertinent provisions of section 13-80-105, 6 C.R.S. (1985 Supp.), the applicable statute of limitations, provide that:

No person shall be permitted to maintain an action ... to recover damages from ... any person licensed in this state or any other state to practice medicine ... unless such action is instituted within two years after the person bringing the action discovered, or in the exercise of reasonable diligence and concern should have discovered, the injury. In no event may such action be instituted more than three years after the act or omission which gave rise thereto, subject to the following exceptions:

(a) If the act or omission which gave rise to the cause of action was knowingly concealed by the person committing such act or omission ... then such action may be instituted within two years after the person bringing the action discovered, or in the exercise of reasonable diligence and concern should have discovered, the act or omission;

(Emphasis added.) At issue in this case is the meaning of the phrase “knowingly concealed” for purposes of delineating the exception to the Medical Malpractice Statute of Limitations.

In 1977, the General Assembly enacted the statute at issue in this ease, section 13-80-105. See ch. 198, sec. 1, § 13-80-105, 1977 Colo. Sess. Laws 816-17. The statute included a three year statute of repose with two exceptions. First, the claim was excepted if the physician left an unauthorized foreign object in the claimant’s body. Second, the claim was excepted if the person who committed the act or omission knowingly concealed that fact.⁷

The knowing concealment exception to section 13-80-105 embodies the common law concept that a wrongdoer should not be able to take advantage of his own wrong. See Rosane v. Senger, 112 Colo. 363, 368, 149 P.2d 372, 375 (1944). It prevents a doctor from benefiting from his or her own efforts to hinder the claimant’s discovery of the cause of action against the doctor.

We have not defined the elements necessary to prove knowing concealment in the context of a medical malpractice claim. However, we have consistently recognized fraudulent concealment as a basis for tolling statutes of limitation. See First Interstate Bank v. Piper Aircraft Corp., 744 P.2d 1197, 1200 (Colo.1987); Davis v. Bonebrake, 135 Colo. 506, 515, 313 P.2d 982, 987-88 (1957).⁸ We have defined the elements of fraudulent concealment that a plaintiff must prove to toll a statute of limitations as follows:

(1) the concealment of a material existing fact that in equity and good conscience should be disclosed; (2) knowledge on the part of the party against whom the claim is asserted that such a fact is being concealed; (3) ignorance of that fact on the part of the one from whom the fact is concealed; (4) the intention that the concealment be acted upon; and (5) action on the concealment resulting in damages.

First Interstate Bank, 744 P.2d at 1200; see also Kopeikin v. Merchants Mortg. & Trust Corp., 679 P.2d 599, 601 (Colo.1984); Morrison v. Goodspeed, 100 Colo. 470, 477-78, 68 P.2d 458, 462 (1937).

Given our prior precedent and authority from other jurisdictions,⁹ it is clear that the main purpose of the knowing concealment exception to the Medical Malpractice Statute of Limitations is to prevent doctors from intentionally concealing facts that would apprise a patient of a claim for relief for negligence. See generally 1 David Loui-sell & Harold Williams, Medical Malpractice § 13:03 (1995). With these goals in mind, we hold that in order to prove knowing concealment under section 13-80-105, the Boyetts must prove that (1) Dr. Smith knew he had committed a negligent act or omission, and (2) he intentionally made a material misrepresentation or failed to disclose material information¹⁰ that impeded the Boyetts’ discovery of that negligence.

III.

Dr. Smith argues that in addition to the above elements, the Boyetts must show that they knew of the alleged negligence, confronted him with their suspicions, and he affirmatively misled them. Dr. Smith draws support for this assertion from the court of appeals decision in Adams v. Richardson, 714 P.2d 921 (Colo.App.1986), which in turn based its holding on our decision in Owens v. Brochner, 172 Colo. 525, 474 P.2d 603 (1970). We disagree.

In Owens, we held that a claim for malpractice accrues when the patient discovers, or in the exercise of reasonable diligence, should have discovered the doctor’s negligence. 172 Colo. at 532, 474 P.2d at 607. Fraudulent concealment was not an issue in the case.

In Adams, the court of appeals quoted language from Owens that outlined one example of how fraudulent concealment might arise. 714 P.2d at 925. However, the pertinent issue in the case was whether the doctor had an opportunity to conceal his negligence knowingly from the plaintiff and not whether the plaintiff had confronted the doctor with her suspicions of negligence. The evidence indicated that the doctor did not have an opportunity to mislead or conceal anything from the plaintiff. Thus, any statement in Adams requiring that the plaintiff actually confront the doctor with her suspicions of negligence was not germane to the court’s holding.

Moreover, irrespective of any language in Adams or Owens, the plain language of section 13-80-105 does not require the plaintiff to show that she suspected negligence prior to the doctor’s concealment. The statute requires only that a plaintiff set forth facts from which the finder of fact could reasonably conclude that the person committing the act or omission knew of his or her error, and then concealed that knowledge from the plaintiff.

Therefore, we hold that Ms. Boyett need not prove that she approached her conversation with Dr. Smith with knowledge or suspicion. The state of mind at issue is that of Dr. Smith, not Ms. Boyett. Accordingly, we affirm the court of appeals.

IV.

Dr. Smith further contends that the factual record does not support the Boyetts’ allegation that he knowingly concealed his negligence from them. Smith argues that the Boyetts’ theory of negligence is: (1) that he failed to realize that he perforated Ms. Boy-ett’s common duet during surgery; and, (2) that he failed to treat the puncture in a timely manner. Smith contends that under the plaintiffs’ theory, he could not have knowingly concealed Ms negligence from the Boyetts when Ms alleged error was in failing to reeogmze the problem at all. We disagree with Dr. Smith’s characterization of the issue.¹¹

First, we must be mindful that summary judgment is a drastic remedy and should only be granted upon a clear showing that there is no genuine issue of material fact. C.R.C.P. 56(c); Churchey v. Adolph Coots Co., 759 P.2d 1336, 1340 (Colo.1988). The moving party has the burden of estab-lisMng that no triable issue exists and all doubts should be resolved in favor of the non-moving party. Churchey, 759 P.2d at 1340. In addition, the non-moving party is entitled to all favorable inferences that may be drawn from the facts. Kaiser Found. Health Plan v. Sharp, 741 P.2d 714, 718 (Colo.1987). A reviewing court must apply these same standards when determming whether summary judgment was proper. Churchey, 759 P.2d at 1340.

The Boyetts do not assert that the puncture of the common duct during surgery was negligent. Rather, they allege that Dr. Smith should have discovered and treated the puncture during surgery or post-opera-tively and did not do so. They further allege that Dr. Smith knowingly .concealed their claim for relief against Mm by waiting and later telling Ms. Boyett that a gallstone had caused the hole. They rely upon the operative eholangiograms as evidence from wMch the jury could find that Dr. Smith knew of the puncture during surgery, or, at the latest, one or two days after surgery when the operative notes were placed in the chart. They also rely upon deposition testimony of two doctors who opine that Ms. Boyett’s injury could not reasonably have been attributed to gallstone corrosion, given the symptoms and the time frame, and that Dr. Smith’s attribution of the injury to the presence of a gallstone was an affirmative misrepresentation.

In order for the Boyetts to have recourse to the statute of repose, they must establish that Dr. Smith knowingly concealed from Ms. Boyett his earlier failure to diagnose and treat the perforated duct. Hence, the Boy-etts must put forward facts from wMch a jury could reasonably conclude that Dr. Smith negligently failed to diagnose and treat the puncture during and following surgery; that he discovered his omission between December 23 and January 17; and that he knowingly concealed his negligence from Ms. Boyett when he met with her on January 17. We conclude that the evidence plaintiffs are prepared to present satisfies that burden for purposes of surviving a motion for summary judgment.

Rarely will a plaintiff be able to produce direct evidence that a doctor knowingly concealed Ms negligence. Therefore, in most instances a plaintiff will have to prove knowing concealment through inference and indirect evidence.¹² Such inference and indirect evidence must still support the proposition that the physician knew of Ms own negligence and concealed it from the plaintiff.

In this ease, the radiologist’s report in Ms. Boyett’s hospital file and the cholangi-ograms themselves support an inference that Dr. Smith had knowledge of the fact that he caused the hole during surgery.¹³ In addition, Dr. Smith’s behavior provides further evidence from wMch a trier of fact could infer knowledge. Dr. Smith’s explanation that the puncture was caused by a gallstone is a Mghly unlikely diagnosis according to the Boyetts’ expert witnesses. Viewed in the light most favorable to the Boyetts, a trier of fact could infer that (1) Dr. Smith knew that he had caused the perforation during surgery; and (2) he tried to conceal his negligence from the plaintiff by attributing the hole to a fictitious cause. Hence, for purposes of analysis at the stage of a motion for summary judgment, the evidence in the record establishes sufficient facts to support the Boyetts’ contention that Dr. Smith knowingly concealed his negligence from them.

Because the Boyetts have raised a genuine issue of material fact regarding the issue of knowing concealment, we affirm the judgment of the court of appeals. We return this case to the court of appeals for remand to the district court to set aside the summary judgment, reinstate the plaintiffs’ complaint and for further proceedings consistent with this opinion.

VOLLACK, C.J., dissents.

1 . § 13-80-105, 6 C.R.S. (1985 Supp.) repealed and reenacted by ch. 114, sec. 1, § 13-80-102, 1986 Colo. Sess. Laws 695, 696.

2 . The record indicates that a radiologist may have misread the cholangiograms during surgery and did not immediately inform Dr. Smith that the films showed that a leak had occurred in the common duct.

3 . The Boyetts also named Dr. Weiss and Lutheran Medical Center as defendants in their complaint. Claims against these defendants are not at issue in this appeal.

4 . The Boyetts did not claim that Dr. Smith's puncture of the common duct during surgery was negligent. Apparently, puncture of the common duct during probing can be caused without negligence.

5 . This section has been characterized as a statute of repose since it imposes an absolute bar to bringing suit after a set period of time. Austin v. Litvak, 682 P.2d 41, 45 n. 3 (Colo.1984); see also Black’s Law Dictionary 1411 (6th ed.1990).

6 . In our order granting certiorari, we listed the statute of limitations as § 13-80-105, 6A C.R.S. (1980 Supp.). The most recent publication of this statute may be found at § 13-80-105, 6 C.R.S. (1985 Supp.). Therefore, we have referred to the 1985 Supplement throughout this opinion.

7 . The knowing concealment exception does not toll the statute of limitations perpetually, rather it extends the statute of limitations until two years after the person bringing the action discovered or in the exercise or reasonable diligence and concern should have discovered the act or omission. § 13 — 80—105(l)(a). Thus, even if the plaintiffs are able to show knowing concealment, the plaintiffs action may still be barred if the defendant can show that the plaintiffs' discovered or should have discovered the act or omission more than two years before bringing the suit. Whether Ms. Boyett knew or should have known of the alleged negligence prior to 1989 is not an issue presented for review at this time. We accept for purposes of analysis of the motion for summary judgment that she only learned of the act or omission in 1989.

8 . The original bill enacting section 13-80-105 utilized the term fraudulent concealment instead of knowing concealment. During floor debate in the Senate, the Senate amended the bill to substitute the term "knowing” for the term "fraudulent.” The Senator who introduced this amendment explained that knowing concealment would be easier to understand and to prove than fraudulent concealment. See Floor Amendments to S.B. 150 before Senate, 55th Gen. Assembly, 1st Reg. Sess. (hearing tape No. 77-27A, March 18, 1977, at 9:56:14 — 9:58:00). From this, it is clear that our interpretation of fraudulent concealment provides a useful starting point for defining knowing concealment.

9 .See Bohus v. Beloff, 950 F.2d 919, 926 (3d Cir.1991) (applying Pennsylvania law) (holding that fraudulent concealment need only consist of some affirmative and independent act of concealment that would prevent the plaintiff from discovering the injury); Nardone v. Reynolds, 333 So.2d 25, 39 (Fla.1976) (holding that to establish fraudulent concealment plaintiff must show that doctor made active misrepresentation or failed to disclose known facts regarding condition); In re Medical Review Panel for Claim of Milton, 593 So.2d 795, 797 (La.Ct.App.1992) (holding that to establish fraudulent concealment defendant's conduct must constitute a fraud, a deliberate concealment or a breach of duty to disclose); Benton v. Snyder, 825 S.W.2d 409 (Tenn.1992) (holding that to prove fraudulent concealment, the plaintiff must show that the defendant doctor took some affirmative action to conceal the cause of action); Borderlon v. Peck, 661 S.W.2d 907, 908 (Tex.1983) (holding that failure to disclose a negligent act or fact that injury has occurred constitutes fraudulent concealment); Merrill v. Reville, 135 Vt. 517, 380 A.2d 96, 99 (1977) (holding that to establish fraudulent concealment plaintiff must show that physician had actual knowledge of the allegedly concealed fact and that he concealed it from plaintiff).

10 . Some jurisdictions only find fraudulent concealment where the defendant doctor affirmatively misrepresented his conduct as opposed to failed to disclose material facts. See, e.g., Oetting v. Missouri Osteopathic Found., 806 S.W.2d 150 (Mo.Ct.App.1991); Hundley v. Martinez, 151 W.Va. 977, 158 S.E.2d 159 (1967). In light of our precedent, we adopt the rule that the plaintiff may establish knowing concealment by showing that the defendant either made an affirmative misrepresentation or failed to disclose material information that he had a fiduciary duty to disclose.

11 .The trial court granted Dr. Smith's summary judgment motion because it found that the Boy-etts did not suspect and had not discovered that any wrong had been committed at the time that Dr. Smith informed them of the perforation. The parties did not dispute this fact. The trial court did not make findings regarding whether Dr. Smith knew he caused the injury at the time he told Ms. Boyett that the hole was caused by a gallstone.

12 . Requiring a plaintiff to produce direct evidence in the form of an admission by the doctor that he lied would place too onerous a burden on a plaintiff.

13 . To come within the knowing concealment requirement, the Boyetts must prove that Smith actually knew he had been negligent. They may prove this through inference and indirect evidence. However, the Boyetts may not satisfy this burden by proving that Dr. Smith should have known he was negligent.