Day on Torts - New Post: Court: No Fraudulent Concealment Present

Court: No Fraudulent Concealment Present

Posted: 22 Apr 2020 05:32 AM PDT

Where an HCLA plaintiff sought to add a nurse practitioner’s supervising doctor and employer more than three years after the negligent act occurred, and plaintiff could not show that the new defendants were “aware of the wrong,” plaintiff could not prove the fraudulent concealment exception to the HCLA statute of repose and summary judgment should have been granted.

In Tucker v. Iveson, No. M2018-01501-COA-R3-CV (Tenn. Ct. App. Mar. 11, 2020), plaintiff had a bad cough on Christmas Eve 2009 and believed she had bronchitis. Plaintiff’s friend, Ms. Johnson, suggested that her friend, Nurse Iveson, might be able to help. “Nurse Iveson was employed as a nurse practitioner at Sun Medical Express Walk In Clinic,” but she was not working that day and was out on personal business when Ms. Johnson contacted her. Either Ms. Johnson or plaintiff explained plaintiff’s symptoms to Nurse Iveson, who then wrote plaintiff a prescription for an antibiotic, oral steroids, and an inhaler. Ms Johnson retrieved the prescription and took it into Walgreens, and plaintiff later picked the prescription up. Some time after taking the medications plaintiff began experiencing tendonitis and was told by her physician “that the most likely cause of her condition was the medication prescribed by Nurse Iveson.” Plaintiff alleged that neither Nurse Iveson nor anyone at Walgreens told her that “one potential side effect of the antibiotic was tendonitis or that the risk of tendonitis increased if the antibiotic was taken with steroids.”

On December 27, 2010, plaintiff sent pre-suit notice to Nurse Iveson and Dr. Sanders, who was listed with the Tennessee Board of Nursing as Nurse Iveson’s supervising physician. That information was incorrect, however, as Dr. Phillip Newman was actually her supervising physician. Plaintiff also named as a defendant an incorrect employer for Nurse Iveson.

In April 2011, plaintiff’s counsel discovered that the wrong supervising physician had been named and filed a motion to amend to add Dr. Newman, arguing that plaintiff was “entitled to add Dr. Newman as a defendant under the ninety-day window afforded by the comparative fault statute.” (internal citation omitted). Plaintiff sent Nurse Iveson expedited requests for admission, in response to which Nurse Iveson denied that Dr. Newman was her supervising physician on the day in question and denied that she was “working for and utilizing prescription pads from Sun Medical Express Walk In Clinic[.]” Later, during her deposition, Nurse Iveson “acknowledged that her responses to the requests for admissions were false.”

In December 2012, based on the information obtained in the deposition, plaintiff filed a motion to amend seeking to add Dr. Newman as a defendant and setting aside an earlier dismissal of Nurse Iveson. The trial court granted both requests, and a third amended complaint was filed on January 17, 2013 for the first time asserting claims against Dr. Newman and Middle Tennessee Ear Nose & Throat (the entity doing business as Sun Medical Express Walk In Clinic). The new defendants filed motions to dismiss, which were converted to motions for summary judgment, based on the statutes of limitations and repose. The trial court denied these motions “based on evidence of fraudulent concealment by Nurse Iveson,” but eventually granted the defendants summary judgment on other grounds.

Several issues were raised on appeal, but the timeliness of the claims against the two new defendants was dispositive. Despite plaintiff’s assertion that “her negligent hiring and supervision claims [were] not governed by the Medical Malpractice Act,” the Court of Appeals ruled that these claims were “substantially related to medical treatment or expertise” and “require[d] evaluation of [defendant’s] medical judgment.” (internal citation omitted). The HCLA and its three-year statute of repose thus applied to this case.

The Court explained that the HCLA “places an absolute three-year limit upon the time within which malpractice actions can be brought,” and that the three years begins to run on the date of the negligent act, which in this case was December 24, 2009. Because the complaint against the new defendants was not filed until January 2013, more than three years later, the statute of repose barred the case unless plaintiff could show “fraudulent concealment on the part of the defendant[,]” as the statute contains an exception for fraudulent concealment. (quoting Tenn .Code Ann. § 29-26-116(a)(3)). The Court of Appeals reasoned:

But the fraudulent concealment exception cannot apply unless [plaintiff] can establish that (1) the defendants took affirmative action to conceal their identities; (2) she could not have discovered their identities in the exercise of reasonable care and diligence; (3) the defendants knew about the facts giving rise to [plaintiff’s] cause of action and the identity of the wrongdoer; and (4) the defendants concealed material information by withholding information or resorting to trickery.

(internal citation omitted).

While the Court found that a reasonable juror could find that Nurse Iveson’s behavior satisfied several of the elements of fraudulent concealment, it ruled that plaintiff could not show that the two new defendants, Dr. Newman and the clinic, were “aware of the wrong,” which is an “essential element of the fraudulent concealment exception.” (internal citation omitted). The Court stated:

[Plaintiff] failed to come forward with proof of actual knowledge or any other evidence from which a reasonable juror could infer actual knowledge. Nurse Iveson never informed Dr. Newman or Middle Tennessee ENT that she had written this prescription for [Plaintiff]. And neither defendant was aware of this malpractice action until they were served with process in 2013. Having no knowledge of a wrongful act or their potential liability, they had nothing to conceal.

(internal citations omitted). The Court thus affirmed summary judgment for defendants based on the statute of repose.

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