Investigating the Fraudulent Concealment Exception to the Statute of Repose
posted on February 8th, 2008 in Statute of Repose by clintAccording to Calaway v. Schucker, 193 S.W.3d 509 (Tenn.2006), fraudulent concealment is the only exception to the three-year medical malpractice statute of repose, at TENN.CODE ANN. §29-26-116(a)(3), other than the foreign body exception. For birth trauma cases filed after three years have passed, there is only one way to save the case. To save the case, you must first investigate the facts to determine whether a jury issue exists regarding fraudulent concealment. Next, you must plead affirmatively fraudulent concealment as an exception to the statute of repose. Finally, you should be able to support the allegation with a factual basis, perhaps in the form of an expert’s affidavit because once a defendant makes out a prima facie defense that the three-year period has elapsed, the burden of proof shifts to the plaintiff to demonstrate that she is entitled to take advantage of the statute’s tolling provision. Benton v. Snyder, 825 S.W.2d 409, 414 (Tenn.1992). The affidavit should set forth the reasons why the Plaintiff is able to take advantage of the statute’s tolling provision.
The law of fraudulent concealment for medical malpractice does not mean fraud in the traditional sense. It is a less demanding standard that mimics negligent concealment. The reasons for this distinction is simple: (1) the facts healthcare providers must disclose to patients may not be known by the patient or (2) the facts may be beyond the realm of common experience. Green v. Sacks, 56 S.W.3d 513, 520 (Tenn.Ct.App.2001). To be material, these facts must involve the patient’s medical condition and must consist of the sort of information that a reasonable person in the patient’s position would want to know in order to understand and to make decisions regarding medical matters. This is nothing more than “the patient’s right to know.” Therefore, a physician has a duty to inform the patient that she varied the procedure and such failure is sufficient to create a jury issue of fraudulent concealment. Id (citing Hall v. DeSaussure, 297 S.W.2d 81, 86 (Tenn.Ct.App.1956)).
Decisions regarding the scope and parameters of a physician’s duty to disclose material information are guided, at least in part, by the medical profession. To constitute fraudulent concealment for the purpose of tolling the statute of repose, the failure to disclose must be, in the words of TENN.CODE ANN. § 29-26-115(a)(1), below “the recognized standard of acceptable professional practice in the profession and specialty thereof.” Making this determination calls for expert medical testimony consistent with TENN.CODE ANN. § 29-26-115(b). Thus, the fraudulent concealment always invokes expert testimony separate from the merits of the case.
Keeping in mind the pivotal role of expert testimony in establishing the scope of a physician’s duty to disclose, you must convince the court that an issue of fact exists about the defendant physician’s duty to disclose and whether he or she breached it. If there is such an issue, then the fraudulent concealment exception should go to the jury. Look for alterations in the medical chart. Look for deviations in the medical procedure that were not explained to your client by the healthcare providers with a duty to disclose. Only experts can identify these for you and support the exception. This is your last resort when three years have passed.