§47.26 Fraudulent Concealment Exception to Statute of Repose

The Case : Shadrick v. Coker, 963 S.W.2d 726 (Tenn. 1998).

The Basic Facts: Plaintiff sought treatment from Defendant doctor for a back injury. After a series of unsuccessful surgeries, the doctor implanted 'pedicle' screws into Plaintiffs back. Plaintiff filed suit against the doctor for medical malpractice, lack of informed consent, battery and fraudulent concealment, alleging that he was unaware that the doctor would use the screws in the procedure and that the screws were experimental at the time, and had he known they were experimental, he would not have consented to the procedure.

The Bottom Line:

• "Having decided that the one-year statute of limitations does not necessarily bar Shadrick's claim, we turn to whether there are disputed issues of material fact regarding fraudulent concealment on the part of Dr. Coker so as to avoid application of the three-year statute of repose.
  
  Tenn. Code Ann. § 29-26-116(a)(3) provides that regardless of when a plaintiff discovers the cause of action, no cause of action may be brought after three years from the date of the alleged malpractice. Hence, the three-year statute of repose establishes a ceiling on the time in which a malpractice suit may be brought. The three-year limit is unrelated to the accrual of the cause of action, commencing not on discovery like the statute of limitations, but on the date of the alleged wrongful act. Braden v. Yoder, [592 S.W.2d 896, 897 (Tenn. Ct. App. 1979)]. Nonetheless, the statute of repose may be tolled where there is 'fraudulent concealment on the part of the defendant,' in which case the cause of action must be brought within one year after discovering that the cause of action exists. Tenn. Code Ann. § 29-26-116(a)(3)." 963 S.W.2d at 735.
• "To establish fraudulent concealment, a plaintiff must prove (1) that the defendant took affirmative action to conceal the cause of action or remained silent and failed to disclose material facts despite a duty to do so and, (2) the plaintiff could not have discovered the cause of action despite exercising reasonable care and diligence. Stanbury, S.W.2d at , n. 6; Benton v. Snyder, 825 S.W.2d 409, 414 (Tenn. 1992). In this regard it has been observed that when there is a confidential or fiduciary relationship between the parties, the 'failure to speak where there is a duty to speak is the equivalent of some positive act or artifice planned to prevent inquiry or escape investigation.' Hall v. De Saussure, [297 S.W.2d 81, 85 (Tenn. Ct. App. 1956)]. In our most recent case addressing the subject, we recognized that

  the affirmative action on the part of the defendant must be something more than mere silence or a mere failure to disclose the known facts. There must be some trick or contrivance intended to exclude suspicion and prevent inquiry, or else there must be a duty resting on the party knowing such facts to disclose them . . . . For example, such a duty arises where a confidential relationship exists, as between physician and patient. In such cases, there is a duty to disclose, and that duty may render silence or failure to disclose known facts fraudulent. This is the rule in Tennessee and in other jurisdictions.

  Benton , 825 S.W.2d at 414 (emphasis in original) (citations omitted)." Id.
• "The third essential element of fraudulent concealment is knowledge on the part of the defendant of the facts giving rise to the cause of action. Benton, 825 S.W.2d at 414. In other words, the defendant must be aware of the wrong. See Housh, 818 S.W.2d at 43 ('Basically, fraudulent concealment will be shown where the physician had knowledge of the wrong done and concealed such information from the patient.'); Ray, 484 S.W.2d at 72 ('Our Tennessee cases hold that knowledge on the part of the physician of the fact of a wrong done is an essential element of fraudulent concealment.')." Id.
• "The fourth and final essential element of fraudulent concealment is a concealment of material information from the plaintiff. Benton, 825 S.W.2d at 414. Concealment 'may consist of withholding information or making use of some device to mislead' the plaintiff in order to exclude suspicion or prevent inquiry. Id. When there is a relationship involving trust and confidence between the parties which would impose a duty to make a full disclosure of the material facts, mere silence or nondisclosure may constitute concealment. See [54 C.J.S. Limitations of Actions § 90 (1987)]. The rationale for this rule has been explained as follows:

  Fiduciary relationship, confidential relationship, constructive fraud and fraudulent concealment are all parts of the same concept. T]he nature of the relationship which creates a duty to disclose, and a breach of [that] duty constitutes constructive fraud or fraudulent concealment, springs from the confidence and trust reposed by one in another, who by reason of a specific skill, knowledge, training, judgment or expertise, is in a superior position to advise or act on behalf of the party bestowing trust and confidence in him. Once the relationship exists 'there exists a duty to speak . . . [and] mere silence constitutes fraudulent concealment.'
  
  In the common knowledge of man, patients submit themselves to the skills and arts, proficiency and expertise, of hospital personnel, once they become confined to the hospital. Indeed, most frequently, they have no real choice in the matter; they are physically and intellectually unable to do much more than submit and rely upon the medical superiority and ethical propriety of their attendants."

  Id. at 735-36
• "To summarize, a plaintiff in a lack of informed consent case (or any other medical malpractice case) attempting to toll the statute of repose contained in [Tenn. Code Ann. 29-26-116(a)(3) by relying upon the fraudulent concealment exception to the statute must establish that (1) the health care provider took affirmative action to conceal the wrongdoing or remained silent and failed to disclose material facts despite a duty to do so, (2) the plaintiff could not have discovered the wrong despite exercising reasonable care and diligence, (3) the health care provider knew of the facts giving rise to the cause of action and, (4) a concealment, which may consist of the defendant withholding material information, making use of some device to mislead the plaintiff, or simply remaining silent and failing to disclose material facts when there was a duty to speak." Id. at 736.
• "Our review of the record before us demonstrates that there is evidence sufficient to create a jury issue on all the key elements of fraudulent concealment. The evidence from which the jury could infer concealment consisted of Dr. Coker's silence regarding the risks and complications associated with the use of pedicle screws in the spine and the failure to disclose their experimental nature. This is particularly true since Dr. Coker and Shadrick had a confidential or fiduciary relationship by virtue of having a doctor-patient relationship, which imposed a duty upon Dr. Coker to disclose material information. Furthermore, the jury could infer that Dr. Coker attempted to conceal material facts (i.e., the risks and potential complications and experimental nature of the procedure) associated with the wrong by offering various explanations for Shadrick's continuing problems, none of which had to do with the implantation of the screws. There was also the assurance by Dr. Coker to Shadrick that the screws were 'routine treatment' for the type of surgery Shadrick had undergone. A jury could thus find that throughout Dr. Coker's treatment of Shadrick Dr. Coker allayed any possible suspicions that Shadrick might have had concerning a claim against him by first representing that the screws were routine treatment and then later attributing the complications to several different causes, none of which related to the screws. Evidence of knowledge could also be inferred from this proof, particularly in light of Dr. Frederick's testimony that such information should have been discussed with Shadrick (but wasn't) in order to have obtained his informed consent and comply with the applicable standard of care." Id. at 736-37.
• "Finally, we are also persuaded that, for the reasons discussed in the statute of limitations portion of this opinion, there is a question of fact regarding whether Shadrick could have discovered the wrong (failing to obtain his informed consent) through the exercise of reasonable care and diligence. We would only add that '[w]hether the plaintiff exercised reasonable care and diligence in discovering the injury or wrong is usually a question of fact for the jury to determine.' Wyatt, 910 S.W.2d at 854." Id. at 737.

Other Sources of Note: Green v. Sachs , 56 S.W.3d 513 (Tenn. Ct. App. 2001) (jury question existed on the issues of fraudulent concealment).

Recent Cases: Brandt v. McCord , No. M2007-00312-COA-R3-CV, 2008 WL 820533 (Tenn. Ct. App. Mar. 26, 2008) (upholding dismissal based on statute of limitations and finding fraudulent concealment did not apply to toll statute of limitations in a medical malpractice claim).

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