ELIZABETH DOWNING and MARCELLA BERRY, as Co-Administrators of the ESTATE OF LINDA BERRY v. PAUL GROSSMANN, and CATHOLIC HEALTH INITIATIVES IOWA, CORP. d/b/a MERCY MEDICAL CENTER, MERCY MEDICAL CENTER WEST LAKES, and MERCY SURGICAL AFFILIATES
No. 20–1124
IN THE SUPREME COURT OF IOWA
April 22, 2022
Submitted March 24, 2022
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Polk County, David Porter, Judge.
The defendants seek further review of a court of appeals decision reversing the district court’s grant of summary judgment in a medical malpractice action.
DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT JUDGMENT AFFIRMED.
Oxley, J., delivered the opinion of the court, in which all justices joined.
Steve Hamilton (argued) and Molly M. Hamilton of Hamilton Law Firm, P.C., Clive, for appellants.
Joseph F. Moser (argued) and Stacie M. Codr of The Finley Law Firm, P.C., Des Moines, for appellees.
A benign cyst on Linda Berry’s right kidney was first detected on a computerized tomography (CT) scan taken at Mercy Medical Center1 in 2004. Ms. Berry visited Mercy over the next several years for a variety of reasons, and the cyst was noted as an incidental finding on subsequent CT scans, including one taken during a visit to the ER on October 1, 2009, when Dr. Paul Grossmann treated her for colitis. This time, a radiologist noted the mass had grown in size from the prior scans, suggesting the mass should be further evaluated. But, according to the plaintiffs, no one mentioned the growing cyst to Ms. Berry or her primary care physician until another CT scan was taken when she broke her shoulder seven years later. By then it was too late. Ms. Berry was treated for renal cancer in April 2016, the cancer metastasized to her bones, and she passed away from cancer in 2019.
Prior to her death, in 2018 Ms. Berry filed a medical malpractice action against Dr. Grossmann and the Mercy affiliates for failing to disclose the kidney mass in October 2009. But she ran up against Iowa’s six-year statute of repose found in
The court of appeals read the requirement for an independent act of concealment too narrowly. The acts of concealment claimed by the estate are the same acts by Dr. Grossmann that form the basis of the estate’s underlying claims of negligence. The fraudulent concealment doctrine therefore does not apply, and the defendants are not estopped from asserting the statute of repose defense, which undisputedly applies to the facts of this case. For the reasons explained below, we reverse the court of appeals and affirm the district court’s grant of summary judgment for the defendants.
We recite the facts supported by the record in the light most favorable to the plaintiffs in considering whether the defendants were entitled to summary judgment on their statute of repose defense. Berry’s primary care physician was with Broadlawns Family Medicine, and she used Mercy for emergency care. In 2004, Berry was hospitalized at Mercy for abdominal pain, and a CT scan showed a mass on her right kidney that was determined to be a benign cyst. Berry received another CT scan at Mercy in December 2006 when she was seen for a urinary tract infection. This CT scan indicated her “right kidney is unchanged with a stable right renal cyst.” Berry was not informed of the mass on her right kidney at either visit.
On October 1, 2009, Berry went to the Mercy emergency room complaining of constipation and nausea. Dr. Paul Grossmann, the on-call emergency room doctor, ordered a CT scan based on concerns Berry might have acute appendicitis, diverticulitis, or an incarcerated hernia. The initial CT scan reading revealed no abnormalities other than constipation, and Berry was sent home with medication for constipation. However, a final reading of the CT scan revealed that Berry had mild sigmoid colitis. Dr. Matthew Severidt, a Mercy resident working with Dr. Grossmann, called Berry’s daughter, Elizabeth Downing, as they were driving home and told her, “You need to bring your mom back. Not everything was okay on the CT scan. Come back.” Berry was prescribed an antibiotic for the colitis and again discharged with an appointment to follow up with Dr. Grossmann about the colitis on October 6.
The final reading of the CT scan also showed a large exophytic mass on Berry’s right kidney that had increased in size from the scans taken in 2004 and 2006. Dr. Severidt wrote an addendum to Berry’s chart noting the mass and stating: “Suggest MRI for evaluate.” He also noted, “Patient will follow up with Dr. Grossmann in one week at which time further evaluation of right kidney can be undertaken.” Although Dr. Severidt noted, “This was discussed with patient who voiced understanding,” nothing was mentioned about the mass in Berry’s discharge papers, and Berry and Downing both denied ever being told about the mass despite the unusual request to return to the hospital because “not everything was ok” with the CT scan. We assume the mass was not discussed with Berry for purposes of reviewing the summary judgment ruling.
Berry went back to Mercy’s emergency room late on October 3 with complaints of increased abdominal pain and constipation. Another CT scan showed the colitis was responding to the antibiotics, again depicting the mass on Berry’s right kidney. Although the mass was deemed not to be the cause of Berry’s pain, Dr. Roe, one of Dr. Grossmann’s partners who was on call that night, wrote in his consultation notes: “Plan: Recommended follow up for R. kidney cystic mass with Dr. Grossmann, already discussed with patient on 10/1/09.” A copy of the October 3 CT scan results in Berry’s patient chart contained Dr. Grossmann’s signature, indicating his acknowledgment of the results and recommendations for further testing. But again, Berry was not informed of the right kidney mass seen on the CT scan and was not informed that further testing was recommended.
On October 6, Berry saw Dr. Grossmann for her follow-up appointment concerning the colitis. Dr. Grossmann examined Berry and scheduled a colonoscopy. Dr. Grossmann’s dictated notes made no mention of consulting with Berry about the kidney mass. Dr. Grossmann dictated and sent a letter to Berry’s primary care physician at
After the colonoscopy and further evaluation of the colitis treatment, Dr. Grossmann discharged Berry from his care in December, informing her that her conditions had resolved. At an April 15, 2010 appointment, Berry’s primary care physician read Dr. Grossmann’s October 6 letter to Berry, which did not mention the right kidney mass or recommend further testing. Despite the notes in Berry’s chart about the kidney mass, no additional testing was conducted.
Fast forward six years to April 24, 2016. Berry fell, severely injuring her shoulder and sending her back to Mercy’s emergency room. Given Berry’s bone abnormalities and her medical history, the ER doctor, Dr. Todd Peterson, recommended to Berry’s primary care physician that Berry follow up with an orthopedic surgeon at the University of Iowa Hospitals and Clinics. As relevant here, a CT scan of Berry’s chest, abdomen, and pelvis taken at the University Hospitals revealed that the right kidney mass had grown to 4.4 cm and was concerning for cystic renal cell neoplasm. Again, Berry was not informed of the mass during her treatment, but a nurse discharging Berry happened to mention the kidney mass to her. Berry claims this was the first time anyone ever informed her of the mass on her kidney.
On April 29, Berry was diagnosed with metastatic renal cell carcinoma through a CT biopsy at the University Hospitals. In November 2016, Berry underwent a partial right nephrectomy to treat her renal cancer. Although the surgery was initially successful, a spinal tumor was discovered in July 2017. Berry underwent surgery, chemotherapy, and radiation treatment. Berry passed away on May 22, 2019, from renal cell carcinoma with metastasis to the bone.
Prior to her death, Berry sued Dr. Grossmann, Mercy Surgical Affiliates, and Catholic Health Initiatives Iowa, Corp. d/b/a Mercy Medical Center on April 10, 2018. She asserted medical malpractice claims related to Dr. Grossmann’s alleged failure to disclose information about the kidney abnormalities revealed on the CT scans to Berry or her primary care physician, preventing Berry from seeking further testing and care. Her expert opined that even though the kidney mass was an incidental finding to Berry’s treatment for colitis, the standard of care required Dr. Grossmann to inform Berry of the mass as well as follow up directly with Berry’s primary care physician, neither of which was documented in Dr. Grossmann’s notes. Berry alleged that having ordered the CT scans, Dr. Grossmann was responsible for all findings, including findings incidental to his treatment. Berry also alleged that Dr. Grossmann’s failure to inform her about the nature of her medical issues amounted to fraudulent misrepresentations. Following Berry’s death in May 2019, her daughters,
The defendants moved for summary judgment on the basis that the claims were precluded by the six-year statute of repose for medical malpractice claims. See
II.
We review a district court’s grant of summary judgment for correction of errors of law. Skadburg v. Gately, 911 N.W.2d 786, 791 (Iowa 2018). Summary judgment is proper if the record shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Christy v. Miulli, 692 N.W.2d 694, 699 (Iowa 2005). The moving party must show an absence of a genuine issue of material fact. Skadburg, 911 N.W.2d at 791. We view the facts in the record in the light most favorable to the nonmoving party, and we draw every legitimate inference in their favor. Id.
III.
The defendants contend that the court of appeals decision effectively eliminated application of the statute of repose in any failure to disclose case where subsequent treatment by the same providers exists. The defendants ask us to uphold the district court’s order, contending that this case is barred by the statute of repose because it was filed nearly nine years after the care in question. Berry’s estate argues that the court of appeals correctly held that a jury could conclude from the evidence that Dr. Grossmann was guilty of concealing Berry’s kidney cyst, which would estop the defendants from raising the statute of repose defense. Resolution of this case turns on a proper application of the fraudulent concealment doctrine.
This case involves the application of a statute of repose, to be distinguished from a statute of limitations. A statute of limitations governs how much time a plaintiff has to bring a cause of action after it accrues. An action accrues when the plaintiff is injured, or in some cases, when she discovers or reasonably should have discovered she has been injured. Conversely, a statute of repose governs how long a potential defendant is subject to liability for his actions. So a statute of repose runs from the time of the defendant’s action, regardless of when the injury is incurred or discovered, and may cut off a cause of action before it has accrued or even before there has been an injury. See, e.g., Bob McKiness Excavating & Grading, Inc. v. Morton Bldgs., Inc., 507 N.W.2d 405, 408–09 (Iowa 1993) (holding that the fifteen-year statute of repose in
But
The statute of repose is an affirmative defense to a malpractice claim. And despite its rigid bar, certain equitable principles may prevent, or estop, a defendant from raising the defense. One such equitable doctrine, fraudulent concealment, arises “when by his own fraud [the defendant] has prevented the other party from seeking redress within” the applicable statutory period. Est. of Anderson, 819 N.W.2d at 414 (quoting Christy, 692 N.W.2d at 702) (noting that the doctrine of fraudulent concealment has been part of our jurisprudence for over a century and survived codification of the statute of repose in section
A plaintiff seeking to estop a defendant from raising a statute of repose defense must prove four things: “(1) The defendant has made a false representation or has concealed material facts; (2) the plaintiff lacks knowledge of the true facts; (3) the defendant intended the plaintiff to act upon such representations; and (4) the plaintiff did in fact rely upon such representations to his prejudice.” Id. at 702 (quoting Meier v. Alfa–Laval, Inc., 454 N.W.2d 576, 578–79 (Iowa 1990)). The party alleging fraudulent concealment has the heavy burden to prove each of the elements by “a clear and convincing preponderance of the evidence.” Id.
Equitable estoppel is not premised on the fact that the defendant has harmed the plaintiff but on the fact that—having harmed the plaintiff—the defendant also concealed the existence of a cause of action. Recognizing this distinction, fundamental “to the first element, a party relying on the doctrine of fraudulent concealment must prove the defendant did some affirmative act to conceal the plaintiff’s cause of action independent of and subsequent to the liability-producing conduct.” Id. The existence of a fiduciary duty, such as that between a physician and his patient, “relaxes the requirement of affirmative concealment,” Est. of Anderson, 819 N.W.2d at 415 (emphasis added), such that silence can supply the concealment, but “the act of concealment must [still] be independent of and subsequent to the original wrongdoing establishing liability.” Skadburg, 911 N.W.2d at 798.
A review of our cases demonstrates the distinction between an underlying liability-producing act and a subsequent, independent act of concealment. In Christy, a doctor who caused a brain bleed during a biopsy procedure reported in the patient’s medical records that the procedure was performed without complications and told the patient’s spouse the bleed occurred away from the biopsy site, suggesting it was caused by an unrelated infection. 692 N.W.2d at 698–99. The acts of concealment—misleading the wife about the location of the bleed relative to the biopsy and recording the procedure was completed without complications in the medical records—were independent and subsequent to the liability-creating act of negligently performing the biopsy. Id. at 700–04. In Skadburg v. Gately, an attorney erroneously told his client, who was the administrator of her mother’s estate, to use proceeds from life insurance and 401(k) accounts to pay the estate’s debts even though those assets were exempt and the estate’s debts exceeded its assets. 911 N.W.2d at 790. The attorney’s silence in response to the client’s later communications lamenting that she had used exempt assets to pay the estate’s debts satisfied the requirement for an act of concealment that was independent and subsequent to the underlying negligence of improperly advising the client to use exempt assets to pay the estate’s debts. Id. at 799–800.
On the other hand, where a physician unnecessarily removed a patient’s voice box and failed to tell the patient that other less intrusive treatments were available, we held that “failure to make those disclosures lies at the heart of the Schlotes’ claims” so that the “failure was not an independent, subsequent act of concealment.” Schlote, 676 N.W.2d at 195. In Van Overbeke v. Youberg, 540 N.W.2d 273, 274–75 (Iowa 1995), abrogated on other grounds by Christy, 692 N.W.2d at 701–02, an obstetrician failed to give RHoGAM to a pregnant patient who was RH negative to prevent blood sensitization before delivering her baby. In the patient’s subsequent
This case follows the pattern of Schlote and Van Overbeke rather than Christy and Skadburg. The liability-producing conduct was Dr. Grossmann’s alleged failure to disclose to Berry the concerning findings on her CT scan and to inform her primary care physician about the recommendation for further evaluation of the kidney mass. But the plaintiffs then rely on these same acts—Dr. Grossmann’s failure to tell Berry about the mass when she returned to the hospital on October 1 or saw him in his office on October 6 as well as Dr. Grossmann’s October 6 letter to Berry’s primary care physician—as his acts of concealment. The court of appeals concluded these separate opportunities to disclose the kidney mass provided the necessary temporal separation between the initial failure to disclose the Mercy radiologist’s October 1 recommendation for further evaluation of the mass, and the later concealment by Dr. Grossmann after gaining actual knowledge of the mass but concealing the information from Berry in subsequent direct interactions. The court of appeals similarly determined that Dr. Grossmann’s October 6 letter to Berry’s primary care physician constituted a further act of concealment.
The court of appeals’ focus on the temporal separation overlooks the requirement that the concealment also be independent of the liability-producing act. Fraudulent concealment comes into play when a defendant conceals a cause of action against him. That Dr. Grossmann had multiple opportunities to disclose the kidney mass just means he acted negligently on successive occasions—a point made by Berry’s expert. This is not like Skadburg, where the attorney first gave his client bad advice about paying the estate’s debts with exempt assets and then stood silently by when she lamented the loss of funds from the estate. See 911 N.W.2d at 799–800. The silence in Skadburg was independent of the prior negligent advice. Rather, this is like Schlote v. Dawson,
where “failure to make those disclosures lies at the heart of [Berry’s] claims; such failure was not an independent, subsequent act of concealment.” 676 N.W.2d at 195; see also Van Overbeke, 540 N.W.2d at 276–77 (“Failure to disclose that need, as a ground of liability, cannot [also] be the basis for fraudulent concealment.”).
Berry is essentially asserting a substantive claim of fraudulent concealment premised on a duty by Dr. Grossmann to disclose the incidental results of her CT scan. But she brought her claim more than six years after Dr. Grossmann failed to make that disclosure. To allow her claim to go forward would effectively eviscerate the statute of repose for claims of failure to inform a patient. See Van Overbeke, 540 N.W.2d at 276–77. To avoid the statute of repose, Berry must identify some act of concealment that is independent of the
Berry brought her claims more than six years after the defendants’ conduct, and the claims are barred by the statute of repose. See
IV.
For the foregoing reasons, we vacate the court of appeals decision and affirm the district court’s grant of summary judgment in favor of the defendants.
DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT JUDGMENT AFFIRMED.