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`Fraudulent concealment' negates limitations defense. .



CASE ON POINT: Vargas v. Fobi, 2002 WL 31664052 P. 2d--CA

ISSUE: Ordinarily, if a statute of limitations A type of federal or state law that restricts the time within which legal proceedings may be brought.

Statutes of limitations, which date back to early Roman Law, are a fundamental part of European and U.S. law.
 has run, an aggrieved party An individual who is entitled to commence a lawsuit against another because his or her legal rights have been violated.

A person whose financial interest is directly affected by a decree, judgment, or statute is also considered an aggrieved party entitled to bring an action
 has no recourse. However, there are exceptions. Among the exceptions are situations in which fraudulent concealment fraudulent concealment,
n the deliberate attempt to withhold information or to conceal an act to avoid contractual responsibility. Fraudulent concealment as applied to health care providers arises when a treating doctor conceals from an aggrieved patient
 is involved. That was just one of the issues with which California courts were confronted in this interesting case. Was the surgeon involved guilty of fraudulent concealment. If so, was the statute of limitations extended beyond the normal period?

CASE FACTS: On July 2, 1993, Dr. Mathias Fobi performed a bariatric surgery Bariatric Surgery Definition

Bariatric surgery promotes weight loss by changing the digestive system's anatomy, limiting the amount of food that can be eaten and digested.
 (weight reduction surgery), known as the Fobi Pouch Operation (FPO (For Position Only) A low-resolution image used to mark the placement of the final image. During the draft stages of a publication, FPOs are often used instead of the high-resolution images, which take up a significant amount of storage. ), on Dolly Vargas at Bellwood General Hospital Bellwood General Hospital was a hospital in Bellflower, California. It was closed April 6, 2003.[1] History
On February 2, 1982, the hospital was acquired by Paracelsus Healthcare Corporation.
. The patient was released on July 10 but on July 14, developed complications and sought treatment at the emergency room of St. John's Hospital St. John's Hospital may refer to:

In the United Kingdom:
  • St. John's Hospital — Chelmsford, Essex, England
  • St John's Hospital at Howden — Howden, Livingston, Scotland
In the United States:
  • St.
 in Santa Monica. After eight hours at St. John's Hospital, the patient was transferred to Bellwood Hospital, where she was admitted. At that time, Dr. Fobi performed a second surgery for a bowel leakage. The patient continued to treat with Dr. Fobi until 1994 but stopped seeing him to seek care from a physician more conveniently located. (Dr. Fobi's office was approximately 90 miles from the patient's home). The patient received care from Dr. Rosemary McIntyre from 1994 through 1997. In July 1997, the patient was unable to keep food down and was continuously vomiting. She went to the emergency room at Bellwood General Hospital, where she was treated and told by the emergency room physician to contact Dr. Fobi. Dr. Fobi admitted the patient to the hospital on July 28, 1997, and operated on her for a bowl obstruction. On August 5, 1997, the patient was admitted to Bellwood General Hospital by Dr. Lee. Dr. Lee examined the patient and asked Dr. Rogelio Rabanera to perform an endoscopy endoscopy

Examination of the body's interior through an instrument inserted into a natural opening or an incision, usually as an outpatient procedure. Endoscopes include the upper gastrointestinal endoscope (for the esophagus, stomach, and duodenum), the colonoscope (for the
 on the patient. Dr. Rabanera reported removing a silastic Silastic /Si·las·tic/ (si-las´tik) trademark for polymeric silicone substances that have the properties of rubber but are biologically inert; used in surgical prostheses.  ring, which protruded into the lumen of the patient's stomach. The patient continued under the care of Dr. Fobi and last visited him on August 29, 1997. The patient suffered from wound drainage and fistula fistula (fĭs`chlə), abnormal, usually ulcerous channellike formation between two internal organs or between an internal organ and the skin.  problems and consulted with another physician who, on November 4, 1998, removed a second silastic ring from the patient. This was the source of her continued persistent infection and drainage. The patient brought suit against both Dr. Fobi and Bellwood General Hospital alleging: (1) medical negligence, (2) fraud, (3) violation of Civil Code, Section 1750, and (4) violation of California Business and Professions Code, Section 17200. The defendants' motion for summary judgment motion for summary judgment n. a written request for a judgment in the moving party's favor before a lawsuit goes to trial and based on recorded (testimony outside court) affidavits (or declarations under penalty of perjury), depositions, admissions of fact, answers  on the basis of the fact that the statute of limitations had run was granted by the Los Angeles County Superior Court. The patient appealed.

COURT'S OPINION: The Court of Appeal of California reversed the judgment of the lower court.

LEGAL COMMENTARY: Contrary to Dr. Fobi's contention that the patient admitted that she never discussed the removal of the first ring with him, the record disclosed that Dr. Fobi testified in a Deposition that he verified with the patient that the silastic ring had been removed in July 1997. The court concluded that the patient alleged a valid claim regarding the July 1997 malpractice. The court rejected the patient's argument that when Dr. Fobi informed her that a silastic ring was removed on August 1997 (leading the patient to believe that there was no longer a ring in her stomach) that argument was not dispositive dis·pos·i·tive  
adj.
Relating to or having an effect on disposition or settlement, especially of a legal case or will.
 of the tolling of the statute issue. The court found that argument went to the issue of whether the patient had the subjective knowledge necessary to start the running of the statute of limitations RUNNING OF THE STATUTE OF LIMITATIONS. A metaphorical expression, by which is meant that the time mentioned in the statute of limitations is considered as passing. 1 Bouv. Inst. n. 861. . Interestingly, the court concluded that the `foreign body' exception to the statute of limitations did not apply. The court agreed with Dr. Fobi that the two silastic rings were introduced into the patient's body "intentionally" for therapeutic purpose. Thus, the silastic rings did not, per se, come under the appropriate definition of a foreign body necessary to toll the statute of limitations. What convinced the court that the statute of limitations should be tolled to allow the patient to proceed with her claim was the fact that the patient alleged that Dr. Fobi made postoperative statements to the patient reassuring her that her medical condition would get better "little by little," and that he was happy with her progress. Accordingly, the court concluded that fraudulent concealment was involved in this case. A plaintiff is not held to the one year period on the chance that critical information will be flushed out in the Discovery process.

Meet the Editor & Publisher: A. David Tammelleo, JD, is a nationally recognized authority on health care law. Practicing law for nearly 40 years, he concentrates in health care law with the Rhode Island Rhode Island, island, United States
Rhode Island, island, 15 mi (24 km) long and 5 mi (8 km) wide, S R.I., at the entrance to Narragansett Bay. It is the largest island in the state, with steep cliffs and excellent beaches.
 law firm of A. David Tammelleo & Associates. He has presented seminars on medical, nursing and hospital law throughout the United States. In addition to his writings as Editor of Medical Law's. Nursing Law's & Hospital Law's Reagan Reports. his legal articles have been published in the most prestigious health law journals. A prolific writer, his thousands of articles, as well as his achievements as all attorney and lecturer, have won him recognition in Martindale-Hubbell's Bar Register of Preeminent Lawyers and Marquis Who's Who in American Law.
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Title Annotation:California; Vargas v. Fobi
Author:Tammelleo, A. David
Publication:Medical Law's Regan Report
Geographic Code:1U9CA
Date:Dec 1, 2002
Words:869
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