Fraud Vitiates Everything (including statutes of repose)

Alldredge v. The Good Samaritan Home, Inc., — N.E.3d —, 2014 WL 2504551 (Ind. 2014)

This case provides a striking example of successful invocation of the fraud exception to the statute of repose.

An elderly nursing home resident fell on the floor and sustained a head injury, from which she died. The nursing home chose not to disclose to the resident’s family that she did not fall on the floor by accident, but rather was attacked and pushed to the floor by another resident. The family learned about it three years after the incident. Two years after this revelation, the family filed a wrongful death suit against the nursing home. The nursing home successfully moved to dismiss the suit under Indiana’s statute of repose that extinguishes plaintiffs’ right to file a suit after two years following the wrongful death.

The case reached the Indiana Supreme Court that ruled in the family’s favor. The Court reiterated its previous holding that “Fraud vitiates anything. Courts will not uphold fraud, or presume the Legislature intended to do so by allowing one in a confidential relationship to conceal an injury done another until the statute of limitations has run. The language of the statute should be so plain that there is no question as to its meaning if the Legislature intends to give a wrongdoer the advantage and benefit of his fraudulent concealment of an injury done [to] another.” (citing Guy v. Schuldt, 138 N.E.2d 891, 896-97 (Ind. 1956)).

The Court reasoned that this broad “fraudulent concealment” exception to the statute of repose is supported by the United States Supreme Court’s decision Glus v. Brooklyn E. Dist. Terminal, 359 U.S. 231, 232-35 (1959) – a workman injury case decided under the Federal Employers’ Liability Act. This decision allowed the plaintiff to pursue an estoppel claim against the defendant who allegedly told the plaintiff—incorrectly—that he had seven years to sue and subsequently invoked the then existing repose provision that extinguished suits after three years. The United States Supreme Court held that “To decide the case we need look no further than the maxim that no man may take advantage of his own wrong” and remanded the case to the trial court to give the plaintiff an opportunity to “make out a case calling for application of the doctrine of estoppel” by proving that he “was justifiably misled into a good-faith belief that he could begin his action at any time within seven years after it had accrued.”

The Indiana Supreme Court also relied on the state’s Fraudulent Concealment Statute, Ind. Rev. Stat. Ch. 1, § 219 (1852), that provides the following: “If any person liable to an action shall conceal the fact from the knowledge of the person entitled thereto, the action may be commenced at any time within the period of limitation, after the discovery of the cause of action.” The Court clarified that the statute presently applies to all civil actions.

The importance of this decision for medical malpractice litigation cannot be overestimated. The repose statutes are drafted in categorical terms, but do not expressly rule out the “fraudulent concealment” exception that derives from the general principle “No man shall profit from his own wrong.” Consequently, the fraudulent concealment exception should apply across the board, as suggested by the United States Supreme Court in Glass.

Causation Defenses in New Jersey

June 9, 2014

Komlodi v. Picciano, — A.3d —, 2014 WL 2050758 (N.J. 2014)

This new decision of the New Jersey Supreme Court restated the rule that denies the comparative negligence defense to doctors who negligently fail to guard against the patient’s self-injurious behavior. The Court also clarified that the celebrated “Scafidi instruction” to the jury – the “lost chance” doctrine, formulated in Scafidi v. Seiler, 574 A.2d 398, 403–04 (N.J. 1990) – is only available in progressive disease cases when a doctor negligently worsens his patient’s preexisting condition, thereby decreasing her chances of full or partial recovery. The Court held, as it did in the past, that when a patient’s negligence toward himself occurs during or after his substandard treatment by the physician, the physician can successfully invoke the “avoidable consequences” defense that reduces her compensation duty to the patient. Finally, the Court ruled that in cases involving extreme self-injurious behavior on the part of the patient, this behavior may be considered a superseding/intervening cause, which would allow the physician to avoid liability completely.

The Court delivered this important decision in a case featuring an alcohol and drug abuser who was treated for back pain. The patient’s physician did not heed her severe addiction and prescribed her a Duragesic patch that must be applied to the outer skin in order to release the painkiller drug fentanyl over a seventy-two hour period. Instead of applying the patch to her skin, the patient ingested it orally, which caused her a severe and permanent brain injury.

Under these facts, the Court decided that the physician could only invoke the “avoidable consequences” rule and possibly the “superseding cause” defense as well. The Court remanded the case to the trial court for proceedings consistent with this decision. The Court also mentioned the same-specialty requirement for expert witnesses. Testifying experts, it held, must work in the same specialty as the defendant physician.

Interpreting Nevada’s Statute of Limitations for Medical Malpractice Suits

June 9, 2014

Libby v. The Eights Judicial District Court, — P.3d —, 2014 WL 2428791 (Nev. 2014)

The Nevada Supreme Court recently delivered an important decision interpreting the state’s statute of limitations for medical malpractice suits, NRS 41A.097(2), which provides that “an action for injury … against a provider of health care may not be commenced more than 3 years after the date of injury or 1 year after the plaintiff discovers or through the use of reasonable diligence should have discovered the injury, whichever occurs first….”

In the case at bar, a patient waited for more than 3 years to file a suit against her orthopedic surgeon. The suit alleged that the surgeon negligently failed to eliminate the patient’s knee infection. Because the infection’s symptoms persisted for more than 3 years, the Court ruled that the patient’s suit was time-barred.

The patient relied on the Court’s prior rulings concerning a plaintiff’s actual or constructive knowledge of the “injury” that activates the one-year countdown under the statute. According to these rulings, the plaintiff must be actually or constructively aware not only of the injury itself, but also of its underlying cause. Winn v. Sunrise Hosp. & Med. Ctr., 277 P.3d 458, 461–62 (Nev. 2012); Massey v. Litton, 669 P.2d 248, 250–52 (Nev. 1983). The patient asked the Court to interpret the three-year limitation period similarly, but the Court denied this request. “Commencement of a malpractice action” – it explained – “is bound by two time frames tied to two different events. In Massey and Winn, we construed the one-year limitation period as requiring a plaintiff to be aware of the cause of his or her injury, and while Ms. Hamilton asks us to apply the same construction to the three-year limitation period, such a reading would render NRS 41A.097(2)’s three-year limitation period irrelevant.” [The Court should have attributed the hypothetical redundancy to the one-year period: A.S.]

Correspondingly, the Court ruled that the “three-year limitation period begins to run once there is an appreciable manifestation of the plaintiff’s injury” and that “a plaintiff need not be aware of the cause of his or her injury in order for the three-year limitations period to begin to run.” This ruling relied on California court decisions that interpreted California’s statute of limitations—drafted similarly to Nevada’s—in the same way.

Renewing constitutional attacks upon caps

Read my interview by the Washington Examiner about the renewal of constitutional attacks upon statutes capping compensation for medical malpractice victims.