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Concealment held not a bar to limitations defense.

CASE ON POINT: Gyn-OB Consultants, LLC v. Schopp, 2003 WL 103453 N.E.2d--In

ISSUE: Was this physician's concealment sufficient to bar his invoking a statute of limitations defense?

CASE FACTS: From 1993 through 1999, Lynn Schopp was both a patient and a periodic employee of GYN-OB Consultants. In 1996, she sought treatment from Dr. Stephen Coats, a member of the group, relative to a total hysterectomy. Some two months before the hysterectomy was performed, the patient told Dr. Coats that she noticed some skin tags on her vagina and that they itched. She asked the doctor if they were a health risk. He advised that they were not, that they appeared normal, and that he could remove them that day in the office. The patient declined to have the skin tags removed that day. In early October of 1996, the patient informed the physician that she "did not want any unnecessary surgery" and that she would advise him on the morning of her hysterectomy whether she wanted the skin tags removed. Dr. Coats performed the hysterectomy on October 30, 1996. He removed the skin tags when he performed the hysterectomy. After the surgery, the doctor asked the patient why she had not signed a consent for him to remove the skin tags. The patient told the doctor she did not want them removed. On November 19, 1996, the patient scheduled an appointment with Dr. Coats because the appearance of her clitoris had changed. On December 9, 1996, the patient complained to the physician that she experienced swelling and discomfort in her vagina. At her December 9 appointment, Dr. Coats told her that he had removed the skin tags at the time of hysterectomy. The patient asked the doctor specifically whether the removal of the skin tags was related to the discomfort she was experiencing. The skin tags were not located near her clitoris. The physician told her that there was no connection and that he had not operated near her clitoris. On December 28, 1999, while the patient was working at Dr. Coats' office making copies of her medical chart in preparation for an upcoming appointment at the Mayo Clinic, she noticed that the surgical report for the October 30, 1996, procedure was missing. She requested the report from the hospital where the surgery was performed. She then learned that Dr. Coats had, in fact, performed surgery near her clitoris. The patient initiated action against GYN-OB Consultants and Dr. Coats. The proposed complaint was filed with the Department of Insurance on February 4, 1999. The complaint alleged that Dr. Coats performed unauthorized and improper surgery. The Medical Review Panel found that Dr. Coats was "not negligent" and "acted within the appropriate standard of care." However, it found an issue of fact remained as to whether the patient had given Dr. Coats consent to remove the skin tags. On November 15, 2000, the patient filed suit in Allen Circuit Court. The complaint was captioned as one for "Sexual Battery and Genital Mutilation." The patient alleged, inter alia, that Dr. Coats performed "unauthorized, unnecessary, and careless surgery." Dr. Coats' motion for summary judgment on the issue of whether he was negligent in the manner in which he performed the surgery was granted. The court denied Dr. Coat's motion for summary judgment on the issue of whether a battery was barred by the statute of limitations. Both parties appealed.

COURT'S OPINION: The Court of Appeals of Indiana affirmed the judgment of the lower court in part and reversed it in part. The court reversed the denial of Dr. Coat's motion for the granting of summary judgment. However, the court affirmed Dr. Coat's summary judgment as to the patient's allegation of negligence in his performance of the surgery.

LEGAL COMMENTARY: When a physician (by deception) has concealed material facts from a patient preventing the discovery of a wrong, the physician is estopped from asserting the statute of limitations as a defense. There are two types of fraudulent concealment, active and passive. Passive or constructive concealment may be merely negligence and arises when the physician does not disclose certain material information to the patient. The physician's failure to disclose what he knows, or in the exercise of reasonable care, should have known, constitutes constructive fraud. When, concealment is passive, the statute of limitations begins to run at the time the physician-patient relationship ends, or, as in active concealment, until discovery, whichever is earlier. Active concealment involves an affirmative act of concealment intended to mislead or hinder a patient from obtaining information concerning the physician's malpractice. When active concealment is involved, the statute of limitations does not run until a reasonable time after the patient discovers the malpractice or should have discovered it. Despite the evidence of concealment, the patient did not timely bring suit since she experienced difficulty almost immediately after surgery. The symptoms experienced by the patient should have led to the discovery of the removal of the skin tags.

Meet the Editor & Publisher: A. David Tammelleo, JD, is a nationally recognized authority on health care law. Practicing law for over 40 years, he concentrates in health care law with the Providence, R.I. 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 achievement as an attorney and lecturer, have won him recognition in Martindale-Hubbell's Bar Register of Preeminent Lawyers, Marquis Who's Who in American Law, and Who's Who in America.
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Title Annotation:Rx For Physicians Caveat
Author:Tammelleo, A. David
Publication:Medical Law's Regan Report
Date:Jan 1, 2003
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