This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
d/b/a Abbott Northwestern Hospital,
Northwest Anesthesia, P. A., et al.,
Filed September 6, 2005
Hennepin County District Court
File No. MP 04-10086
Alf E. Sivertson, Sivertson & Barrette, P.A., The Barrister Building, 1465 Arcade Street, St. Paul, MN 55106-1723 (for appellant)
Mark R. Whitmore,
Matthew J. Franken, Bassford Remele, P.A.,
William M. Hart, Rodger A. Hagen, Damon L. Highly, Meagher & Geer, P.L.L.P., 33 South Sixth Street, Suite 4200, Minneapolis, MN 55402 (for respondents Northwest Anesthesia, P.A., et al.)
Considered and decided by Worke, Presiding Judge; Halbrooks, Judge; and Parker, Judge.[*]
U N P U B L I S H E D O P I N I O N
On appeal from the district court’s grant of summary judgment in favor of respondents, concluding that appellant’s medical-malpractice lawsuit was time-barred, appellant argues that a genuine issue of material fact exists as to whether the statute of limitations should be tolled because of fraudulent concealment. We affirm.
March 24, 1989, appellant Jacqueline Hemmerlin-Stewart underwent a craniotomy at
On May 27, 2001, appellant was
On June 9, 2004, appellant commenced a medical-malpractice lawsuit, alleging that respondents were negligent for failing to remove the CVL and for not informing her about the existence of the CVL in her body and that respondents fraudulently concealed their negligent conduct. After initial discovery, respondents moved for summary judgment on the grounds that appellant’s claim was time-barred and that appellant had not presented any evidence of fraudulent concealment. On November 22, 2004, the district court granted respondents’ motions for summary judgment. The issue before this court is whether the district court properly granted respondents’ motions for summary judgment.
D E C I S I O N
“On an appeal from summary judgment, the role of the reviewing
court is to review the record for the purpose of answering two questions: (1)
whether there are any genuine issues of material fact to
be determined, and (2) whether the trial court erred in its application of the
The district court granted summary judgment in favor of respondents, finding that appellant would have had to commence her lawsuit by April 10, 1993, for it to be timely. Minn. Stat. § 541.076(b) (2004) provides: “[a]n action by a patient or former patient against a health care provider alleging malpractice . . . must be commenced within four years from the date the cause of action accrued.” Appellant does not dispute that she should have commenced her lawsuit by April 10, 1993; however, appellant argues that the statute of limitations should be tolled because respondents fraudulently concealed her cause of action.
“In limited circumstances, fraud in concealing a patient’s cause of action may toll the running of the statute of limitations.” Tackleson v. Abbott-Nw. Hosp., Inc. 415 N.W.2d 733, 735 (Minn. App. 1987), review denied (Minn. Feb. 12, 1988). The supreme court set forth the rule tolling the statute of limitations when there is fraudulent concealment of a cause of action in Schmucking v. Mayo, 183 Minn. 37, 235 N.W. 633 (1931).
[W]hen a party against whom a cause of action exists in favor of another, by fraudulent concealment prevents such other from obtaining knowledge thereof, the statute of limitations will commence to run only from the time the cause of action is discovered or might have been discovered by the exercise of diligence.
Appellant argues that respondents fraudulently concealed her cause of action by failing to disclose to her that the 1989 x-ray revealed the existence of the CVL. Appellant concedes that respondents did not take any affirmative action to conceal the negligence; however, appellant contends that because a confidential doctor-patient relationship existed, respondents had a fiduciary duty to disclose this information to her and mere silence is enough for fraudulent concealment.
does not constitute fraud in the absence of a duty to speak. See L & H Airco, Inc. v. Rapistan
Corp., 446 N.W.2d 372, 380 (
that in Schmucking, the supreme court
created a rule that a physician can be liable for fraudulent concealment by mere
silence. Schmucking, 183
suggests that an Eighth Circuit case is instructive. In Roberts
v. Francis, 128 F.3d 647 (8th Cir. 1997), a
patient underwent surgery to have her bladder removed, and the surgeon also
removed her only remaining ovary.
Approximately four years later, while being treated by a different
physician, the patient first learned that her ovary had been removed.
In Haberle v.
Buchwald, 480 N.W.2d 351 (Minn. App. 1992), review denied (Minn. Aug. 4, 1992), a patient brought a medical-malpractice
action following postoperative complications.
The patient contended that a genuine issue of fact existed because of
the physician’s “false denial of the cause of her complications and on the exclusion
or misstatement of important information in her medical records.”
A similar situation exists here. Appellant has produced no facts that respondents intentionally concealed anything from her or intentionally omitted important information from her medical records. Indeed, the 1989 x-ray report stating the existence of the CVL in appellant’s body was found in appellant’s medical records rather than hidden or discarded to conceal a potential cause of action. Further, appellant failed to provide any evidence that respondents intentionally concealed any information from her.
issue’ of material fact for trial ‘must be established by substantial evidence.’” DLH,
Inc. v. Russ, 566 N.W.2d 60, 70 (
Appellant has not presented substantial evidence that a genuine issue of material fact exists. Appellant has not provided any evidence that respondents even installed the CVL into her body. In fact, the medical records relating to appellant’s 1989 surgery do not document the insertion or removal of a left subclavian catheter into or out of appellant’s body. Further, although appellant contends that none of the eight other occasions in which she received inpatient or outpatient treatment required the installation of a CVL, she has not provided any evidence that the CVL was installed while she was under respondents’ care. Appellant contends that the statute of limitations should be tolled because respondents did not tell her that the CVL existed in her body, but she does not provide any evidence that respondents fraudulently concealed this from her. The district court properly granted respondents’ motions for summary judgment.
[*] Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.