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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 has run, an aggrieved party has no recourse. However, there are exceptions. Among the exceptions are situations in which fraudulent concealment 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 (weight reduction surgery), known as the Fobi Pouch Operation (FPO), on Dolly Vargas at Bellwood General Hospital. 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 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 on the patient. Dr. Rabanera reported removing a silastic 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 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 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 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. 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 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
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