Dеanna Slagle Roberts, Appellant, v. Darryl Francis, M.D.; St. Edward Mercy Medical Center, Appellees.
No. 97-1434
United States Court of Appeals FOR THE EIGHTH CIRCUIT
October 20, 1997
Submitted: September 9, 1997
Before RICHARD S. ARNOLD, Chief Judge, and FLOYD R. GIBSON and HEANEY, Circuit Judges.
This medical malpractice case comes to us from the district court‘s order granting summary judgment for the appellees. Under the applicable statute of limitations, the medical malpractice claim was time barred. Appellant, Deanna Slagle Roberts, advanced two theories under which the statute should be tolled: continuous treatment and fraudulent concealment. The district court granted summary judgment as to both theories. We affirm the district court‘s grant of summary judgment оn the
I.
In reviewing the district court‘s grant of summary judgment, we view the facts in a light most favorable to Roberts, the nonmoving party. In late May 1990, appellant had surgery for severe urological problems. As part of her surgery, Dr. Darryl Francis, one of the two named defendants/appellees in this action, removed appellant‘s bladder. For reasons not explained in the record, Dr. Frаncis also removed Roberts’ only remaining ovary. Roberts did not learn that her only remaining ovary had been removed until approximately September 1994 when she was treated by a different Dallas, Texas physician for continuing urological problems. Roberts also remained under the care of Dr. Francis until February 1996.
Roberts, an Oklahoma domiciliary, filed this diversity lawsuit in the United States District Court for the Eastern District of Oklahoma in June 1996 against Dr. Francis and the other named defendant/appellee, St. Edward Mercy Medical Center, the medical center where Roberts had her May 1990 surgery. Both of the named defendants were basеd in Arkansas. Pursuant to defendants’ motion, the case was transferred to the United States District Court for the Western District of
On February 4, 1997, the district court granted summary judgment in favor of defendants.1 This appeal followed. Roberts raises three issues on appeal: first, whether
II.
We first address appellant‘s fraudulent concealment claim. Arkansas requires that medical malpractice actions be filed within two years of the alleged wrongful act: “[A]ll actions for medical injury shall be commenced within two (2) years after the cause of action accrues. . . . The date of the accrual of the cause of action shall be the date of the wrongful act complained of and no other time.”
Under Arkansas law, fraudulent concealment of one‘s medical malpractice tolls the relevant statute of limitations. Treat v. Kreutzer, 720 S.W.2d 716, 717 (Ark. 1986) (“[A] complaint alleging facts showing a fraudulent concealment of medical injury is sufficient despite the fact that it was filed more than two years after the alleged injury occurred because fraudulent concealment tolls the statute of limitations“) (citation omitted); Jones v. Central Ark. Radiation Therapy, 607 S.W.2d 334, 335 (Ark. 1980) (“[F]raudulent concealment of one‘s malpractice will toll the running of the statute of limitation“) (citation omitted); Crossett Health Ctr. v. Croswell, 256 S.W.2d 548, 549 (Ark. 1953) (“[F]raudulent concealment will toll the statute. . . .“) (citation omitted).
In this case, we find that Dr. Francis’ fraudulent concealment of his alleged medical malpractice tolls the statute of limitations. It is undisputed that Dr. Francis removed appellant‘s only remaining ovary and fаiled to disclose this information to her. See Howard v. Northwest Ark. Surgical Clinic, P.A., 921 S.W.2d 596, 599 (Ark. 1996) (a physician‘s knowledge of the alleged wrong is a necessary prerequisite to tolling the statute) (citations omitted). In Union National Bank of Little Rock v. Farmers Bank, Hamburg Arkansas, 786 F.2d 881 (8th Cir. 1986), we stated: “Under Arkansas law, a party may have an obligation to speak rather than remain silent, when a failure to speak is the equivalеnt of fraudulent concealment.” Id. at 887 (citing Berkley Pump Co. v. Reed-Joseph Land Co., 653 S.W.2d 128 (Ark. 1983)). With respect to when a duty to speak arises, the Arkansas Supreme Court has stated, “[t]he duty of disclosure . . . arises where one person is in [a] position to have and to exercise influence over another who reposes confidence in him whether a fiduciary rеlationship in the strict sense of the term exists between them or not.” Hanson Motor Co. v. Young, 265 S.W.2d 501, 504 (Ark. 1954) (citation omitted).
In this case, “the alleged act of concealment is part and parcel of the wrongful act complained of,” Howard, 921 S.W.2d at 600, and until a physician complies with his/her duty of disclosure or the patient independently discovers the alleged wrong, it сontinues for purposes of tolling the statute of limitations. Id. In interpreting Arkansas law, therefore, we can think of no clearer case where failure to disclose rises to the level of fraudulent concealment. Roberts was not informed before the surgery that it might be necessary to remove her ovary nor was she informed after the surgery that her ovary had been removed. Before she was informed in September 1994, Roberts had no way of knowing that her ovary had previously been removed. Given the special nature of the doctor-patient relationship, we hold that Dr. Francis was under a duty to inform Roberts thаt he removed her only remaining ovary.
Appellees rely heavily on Norris v. Bakker, 899 S.W.2d 70 (Ark. 1995), in arguing that Dr. Francis did not have an affirmative duty to inform Roberts that he removed her ovary. Bakker is easily distinguishable. In Bakker, a patient alleged that her dentist improperly examined her breasts while supposedly conducting a lymph node examination. The dentist denied touching his patient and pled the stаtute of limitations. While the patient knew of the touching, she argued that the dentist had an affirmative duty to disclose his improper conduct and that the statute of limitations should have been tolled until the disclosure was made. The court stated that “‘[n]o mere ignorance
Unlike the patient in Bakker, Roberts was not simply ignorant of her rights. She was entirely unaware of the alleged wrongful conduct. In fact, she did not learn until September 1994, four years after her initial surgery, that Dr. Francis had removed her only remaining ovary. Thus, in a case where the plaintiff has full knowledge of the alleged wrong, a physician under Arkansas law may have no duty of disclosure.2 In a case such as this, however, where the physician maintains primary control over the relevant information and the plaintiff is unaware of the alleged wrong, the physician has an affirmаtive duty of disclosure.3
In considering whether to grant summary judgment, a court examines all the “pleadings, depositions, answers to interrogatories . . . admissions on file . . . [and]
When a federal court hears a diversity case, although the court applies the applicable state substantive law, the Federal Rules of Civil Procedure genеrally govern. Hanna v. Plumer, 380 U.S. 460, 465 (1965) (where there is no conflict with state procedure, Federal Rules of Civil Procedure clearly govern). Therefore, we must determine whether Roberts sufficiently pleaded fraud with particularity under Rule (9)(b) of the Federal Rules of Civil Procedure (Rule 9(b)), thereby entitling her to a trial on the merits.
The district cоurt, without reaching the merits of Roberts’ fraudulent concealment claim, granted appellees’ motion for summary judgment. In the district court‘s view, plaintiff did not plead fraud with particularity. Roberts v. Francis, No. 96-2185, slip op. at 11-12 (W.D. Ark. Feb. 4, 1997). In viewing the evidence in a light most favorable to Roberts, we believe that there is a genuine issue of material fact and summary judgment was improperly granted.
Under Rule 9(b), “[i]n all averments of fraud . . . the circumstances constituting fraud . . . shall be
In reviewing Roberts’ amended complaint, her affidavit, and her new physician‘s affidavit, we find that they are sufficient under Rule 9(b)‘s pleading requirements: 1) in her complaint, Roberts sufficiently pleaded the time period -- namely, that she learned around September 1994 that her only remaining ovary was removed; 2) in her affidavit, the place of the fraud is sufficiently described as St. Edward‘s Hospital in Fort Smith, Arkansas; 3) although there were nо verbal “contents” of false misrepresentation, Dr. Francis had a duty of disclosure and Roberts sufficiently pleaded that she did not learn of the fraud until more than four years after her initial surgery; 4) Roberts sufficiently identified Dr. Francis as the individual committing the fraud; and 5) Roberts states in her complaint and supporting papers that she has endured great pain since her initial surgery, having had approximately forty surgeries since 1990 as a result of Dr. Francis’ treatment.4 Appellant, therefore, has also sufficiently argued what she has “given up” as a result of the alleged fraud.5
IV.
It is well settled that where a single, isolated act constitutes the alleged act of medical malpractice, the “continuous treatment” doctrine does not apply. A careful reading of Arkansas law indicates that the recognized exception is limited to those situations wherein a plaintiff cannot identify one treatment that produced his injury but where his injury was the result of several treatments -- a “cumulative effect.” The evidеnce here shows that plaintiff was aware of the negligent act -- the surgery -- which caused her injury. . . . [T]he “continuous treatment” doctrine is inapplicable and does not extend the limitations period.
Roberts v. Francis, No. 96-2185, slip op. at 10-11 (W.D. Ark. Feb 4, 1997) (internal citation omitted).
V.
Finally, we address whether St. Edward Mercy Medical Center may be liable for Dr. Francis’ fraudulent concealment under respondeat superior principles. While this is an issue for remand, we mention some guiding principles for the district court to consider.
Arkansas is one of the few American jurisdictions that still recognizes charitable immunity for hospitals. See H. Ward Classen, Hospital Liability for Independent Contractors: Where Do Wе Go From Here?, 40 Ark. L. Rev.
(1) Do the articles of incorporation provide that the purpose of the hospital is charitable in nature? (2) Is the corporation maintained for the private gain, profit or advantage of its organizers, officers or owners whether directly or indirectly? (3) Does the hospital have capital stock or does it have provisions for distributing dividends or making a profit? (4) Does the hospital derive its funds from public and private charity as well as those who are able to pay? (5) Do all “profits” go toward maintaining the hospital and extending and enlarging its charity? (6) Is the hospital open to all who are not pecuniarily able? (7) Are those patients who are unable to pay received into the hospital without charge, without discrimination on account of race, creed or color and are they given the same care as those who are able to pay? (8) Is the hospital exempt from the payment of both state and federal taxes?
Masterson v. Stambuck, 902 S.W.2d 803, 809-10 n.2 (Ark. 1995) (quoting Marion Hosp. Ass‘n v. Lanphier, 688 S.W.2d 322, 324 (Ark. App. 1985)).
With this background in mind, the district court should analyze the above-mentioned factors, after both parties have submitted evidence, in determining whether St. Edward Mercy Medical Center qualifies for charitable
VI.
Consistent with this opinion, the judgment of the district court is reversed on Roberts’ fraudulent conсealment claim and remanded for trial; affirmed on her continuous treatment claim; and remanded for further consideration to determine the liability, if any, of St. Edward Mercy Medical Center.
A true copy.
Attest.
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.