[¶ 1.] A prosthetic implant was surgically-inserted in Linda Bruske’s right jaw in 1984. Two years later, she sued the doctor for malpractice, then voluntarily dismissed the case. In 1988, the doctor sent warning letters about the implant to his patients, but not to Bruske until 1993. She then sued him for fraud and deceit in failing to earlier disclose the risk. Is her fraud case actually a medical malpractice claim, governed by the two-year statute of limitations, which has expired? We conclude the acts she complains of fall under the definition of medical malpractice, so its limitations period applies. Summary judgment for the doctor is affirmed.
Facts
[¶ 2.] Linda Bruske suffered from temporomandibular joint (TMJ) disorder. To relieve her symptoms, on May 12, 1984, Dr. R.D. Hille, an oral and maxillofacial surgeon, performed a bilateral internal TMJ operation. Part of the surgery involved placement of a Vitek Proplast II implant into her right jaw. Hille saw her again on July 6, 1984, and for the last time on September 10, 1985. His notes show her postoperative care was “uneventful” and without complications. Between 1984 and 1994, however, she sought treatment with several doctors and dentists and visited the Mayo Clinic in Rochester, Minnesota, mostly concerning persisting difficulties with her jaw.
[¶ 3.] In May 1986⅜ Bruske sued Hille for medical malpractice by service of a summons upon him. No complaint was ever filed, and she voluntarily dismissed the case with prejudice on September 27, 1988. The apparent basis for her suit was explained in a handwritten letter she wrote on December 6, 1987:
In summary, my complaint against Dr. Hille is that he did too much radical surgery on me in too short of a time without doing the proper presurgical diagnosis or explaining] the other nonsurgical options available or possible side effects. Ever since he performed the surgery I have had dizzy spells, vision and balance problems, and headaches.
[¶ 4.] Bruske frequented a variety of medical providers, but no one advised her of any specific hazards associated with this implant. However, none were oral and maxillofacial surgeons like Hille. On October 8, 1993, Bruske saw the ABC news television program “20/20,” featuring a story on the dangers of Vitek Proplast implants. Then, for the first time she learned of the threat her 1984 implant posed. Made from Teflon, the material used in cookware, these devices tend to shatter once implanted, fragmenting into tiny slivers difficult to remove. Unable to destroy the Teflon splinters, the body’s defense mechanisms attack the jaw causing severe damage to tissue and bone.
[¶ 5.] In 1988, Hille began notifying his patients of the problems with the implant and urged them to come in for treatment. Bruske was not among those informed. Hille explained in his deposition that when Bruske sued him in 1986, her file was moved to a fireproof cabinet; therefore, it was not with the other records when patient files were reviewed for implant warnings. Yet the record reveals Hille accessed her file for other matters, including an insurance inquiry in 1990, and a request for surgery records from another doctor in 1991. As time passed, Vitek implants received increased attention. In March 1990, Vitek notified the health care industry about the dangers. The FDA issued a Safety Alert in December 1990 and in January 1991 ordered a total recall. Finally, in November 1993, Bruske received a letter from Hille notifying her of the problems. When the implant was removed in March 1994, it had, in fact, shattered.
[¶ 6.] Bruske’s expert, Dr. Anthony M. Captline, D.M.D., J.D., an oral surgeon from *875 Pennsylvania, testified by deposition that in 1985 the dangers of the implant were known to members of the American Association of Oral and Maxillofacial Surgery (AAOMS), an organization to which Hille belonged. Capt-line felt that neither dentists nor other physicians Bruske saw would necessarily have been aware of the dangers. These practitioners would not have had the knowledge of the implant hazard that Hille had at his disposal, according to Capüine, since 1985, and it was Hille’s duty to warn Bruske.
[¶7.] Bruske brought suit for fraud and deceit in 1994, asserting Hille suppressed facts he was bound to disclose. Relying on Captline’s opinion, Bruske alleged Hille had a duty to advise her of the risks of the Vitek implant long before 1993 and his failure to do so amounted to fraudulent concealment. The circuit court granted Hille’s motion for summary judgment. Bruske appeals, contending there were genuine issues of material fact meriting a trial.
Standard of Review
[¶ 8.] Under our standard for summary judgment review we must decide
whether the moving party demonstrated the absence of any genuine issue of material fact and showed entitlement to judgment on the merits as a matter of law. Farmers & Merchants State Bank v. Teveldal,524 N.W.2d 874 , 877 (S.D.1994)(quoting Mooney’s v. SD Dep’t of Transp.,482 N.W.2d 43 , 45 (S.D.1992)). The evidence must be viewed most favorably to the non-moving party and reasonable doubts should be resolved against the moving party. Id. (citation omitted). Our task on appeal is to determine whether a genuine issue of material fact exists and whether the law was correctly applied. If there exists any basis which supports the ruling of the trial court, affirmance of summary judgment is proper. Id
Henry v. Henry,
Fraud and Deceit
[¶ 9.] In her complaint, Bruske alleges two counts of fraud and deceit, based in part, on SDCL ch. 20-10. She asserts Hille failed to inform her of the dangers of the implant sooner.
1
SDCL 20-10-1 provides, “One who willfully deceives another, with intent to induce him to alter his position to his injury or risk, is liable for any damage which he thereby suffers.” SDCL 20-10-2(3) further defines deceit as “[t]he suppression of a fact by one who is bound to disclose it, or who gives information of other facts which are likely to mislead for want of communication of that fact[.]” While it is true issues of fraud and deceit are generally questions of fact to be determined by a jury,
Laber v. Koch,
The tort action of deceit is based only upon actual fraud as defined by SDCL 20-10-2, and requires scienter or its equivalent. Constructive fraud, which requires no fraudulent intent, is not a basis for deceit under SDCL 20-10, nor under common law. Although actual fraud may be the basis of tort actions and contract actions, constructive fraud is the basis only for actions for the avoidance of contracts.
Schmidt v. Wildcat Cave, Inc.,
[¶ 10.] With fraud and deceit, the six-year statute of limitations applies and would not
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begin to run “until the aggrieved party discovers, or has actual or constructive notice of, the facts constituting the fraud.” SDCL 15-2-3; SDCL 15-2-13(6);
Anderson v. Production Credit Ass'n
[¶ 11.] Bruske must prove Hille acted “with intent to induce [her] to alter [her] position to [her] injury or risk.” SDCL 20-10-1. Yet her allegations supporting fraud and deceit lack the usual specificity necessary for such claims. “[AJllegations of fraud and deceit without specific material facts to substantiate them will not prevent summary judgment.”
Taggart v. Ford Motor Credit Co.,
[¶ 12.] Bruske insists the source of Hille’s duty lies not merely in the physician-patient relationship, but upon SDCL 20-10-2(3)(“suppression of a fact by one who is bound to disclose it....”). Nonetheless, when closely examined, her claims sound in negligence. Bruske’s expert medical witness, Dr. Captline, testified throughout his .deposition that Hille breached the standard of care by not notifying her of the danger of the Vitek implant.
2
See generally Magbuhat v. Kovarik,
An action against a physician, surgeon, dentist,. hospital, sanitarium, registered nurse, licensed practical nurse, chiropractor, or other practitioner of the healing arts for malpractice, error, mistake or failure to cure, whether based upon contract or tort, can be commenced only within two years after the alleged malpractice, error, mistake or failure to cure shall have occurred ....
Considering Captline’s testimony, it appears Hille’s error occurred as early as 1985, the year AAOMS members were informed. In that event, the statute would have run, giving Bruske the broadest leeway, by December 31, 1987. Or, the error resulted in 1988, when Hille warned his other implant patients and omitted Bruske’s file in the fireproof cabinet. Again, giving Bruske the most favorable inference on this latest alleged error, the statute would have run by December 31, 1990. In either event, Bruske’s 1994 cause of action was untimely.
[¶ 13.] Medical malpractice characterized as fraud and deceit will not sanction a shift to a more beneficial statute of limitations. The Nebraska Supreme Court, in considering such a ease, held an affirmative misrepresentation from a doctor to a patient about a cancer risk from x-rays would not take the action out of the two-year malpractice statute of limitations: “[A]ny professional miscon
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duct or any unreasonable lack of skill or fidelity in the performance of professional or fiduciary duties is ‘malpractice’ and comes within the professional or malpractice statute of limitations.”
Colton v. Dewey,
[¶ 14.] Viewing this case within the context of medical malpractice, as we must, Bruske’s purported “fraud and deceit” action expired under SDCL 15-2-14.1. It remains then to find if an exception will toll the statute.
Continuing Treatment
[¶ 15.] We examine first the continuing treatment exception:
In the area of medical malpractice ... this court has carved an exception to the statute of limitations. This exception prevents the statute of limitation’s clock from ticking when the alleged harm is the result of a continuing tort. See Wells v. Billars,391 N.W.2d 668 (S.D.1986); Alberts v. Giebink,299 N.W.2d 454 (S.D.1980). In Wells, the court tolled the statute of limitations for torts arising out of a physician’s “continuing treatment” until the doctor-patient relationship ended. Id. at 673. The rationale behind this doctrine was to prevent the refusal to seek or administer health care due to pending litigation when treatment may be desperately needed. Id.,391 N.W.2d at 672 .
Bosse v. Quam,
[¶ 16.] No doctor-patient relationship continued after Bruske’s last appointment with Hille on September 10, 1985, because she never returned, to him for treatment.
Walters v. Rinker,
[¶ 17.] Hille treated Bruske on a limited occasion for a specific purpose — a jaw implant. A continuing relationship “is not sporadic but developing and [involving] a continuity of the professional services.”
Schoenrock, supra; Aznel v. Gasso,
When a timely return visit instigated by the patient is made, the policies underlying the continuous treatment doctrine are implicated and the toll is properly invoked. However, where, as here, plaintiff did not seek corrective treatment and, in fact, allegedly did not know that further treatment was necessary, there is no sound basis for applying the continuous treatment doctrine.... That a degree of continuity exists by virtue of Dr. Cohen’s *879 unilateral initiative in October 1983 is unhelpful to plaintiffs position because that contact does not establish the continuing trust on the plaintiffs part that the continuous treatment doctrine requires.
Rizk,
Clearly, it is in society’s best interest to foster honest communication between physician and patient. Allowing continuous treatment to be invoked solely on a doctor-initiated communication might, we fear, encourage silence. Instead of suggesting new techniques, or pointing out a potential mistake from years earlier, a doctor fearful of a medical malpractice action might simply refrain from contacting a former patient.
Id. Rice v. Zimmer Mfg. Co.,
[¶ 18.] Even if the physician-patient relationship continued beyond her last visit to Hille on September 10, 1985, Bruske’s 1986 suit for malpractice surely signified its end. In
Juravle v. Ozdagler,
Fraudulent Concealment
[¶ 19.] Fraudulently concealing a cause of action will also toll the limitations period for medical malpractice.
Hoffman v. Johnson,
In the absence of some trust or confidential relationship between the parties there must be some affirmative act or conduct on the part of the defendant designed to prevent, and which does prevent, the discovery of the cause of action. Mere silence, in the absence of a duty to speak, is not ordinarily sufficient. Where, however, a trust or other confidential relationship does exist between the parties, silence on the part of one having the duty to disclose, constitutes fraudulent concealment in the absence of any affirmative act.
Koenig v. Lambert,
*880
[¶ 20.] Bruske was on notice her right implant failed to correct her condition when her jaw continued to present problems.
Smith,
[A] patient who actually consults with an independent health care provider about the same condition which is subsequently the subject matter of an alleged negligent medical continuum knew or in the exercise of reasonable diligence could have known about the prior negligent course of conduct on the date of the consultation with the independent health care provider.
Ewing v. Beck,
[¶21.] Bruske makes no allegation Hille negligently or improperly inserted the implant in 1984.
See Goldsmith v. Howmedica Inc.,
[¶ 22.] The medical malpractice statute of limitations bars Bruske’s cause of action and no exception tolls the statute. The circuit court properly granted summary judgment.
[¶ 23.] Affirmed.
Notes
. Bruske labels her first count as common law fraud, her second count as deceit, and then in each count describes Hille’s “fraudulent concealment” of the dangers of the implant. Fraudulent concealment is not a cause of action, but a mechanism to toll a statute of limitations. See
generally
Andrea G. Nadel, Annotation,
Duty of Medical Practitioner to Warn Patient of Subsequently Discovered Danger from Treatment Previously Given,
. For a general discussion of Captline's testimony about Vitek implants in a similar case,
see Allen v. Belinfante,
.
See also Krause v. Farber,