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Fraudulent Concealment Remains a Tough Nut to Crack for Medical Malpractice Plaintiffs

By Michael J. Mersot

In the recent case of Hanks v. Cotler, the Illinois Appellate Court reiterated that in order for a plaintiff to overcome the statutes of limitations and repose, he must establish actual affirmative acts calculated to fraudulently conceal the cause of action. In early 2002, the plaintiff in Hanks underwent a battery of tests by several different medical providers aimed at diagnosing his persistent jaundice and apparently emerging Hepatitis C, including an ECRP (endoscopic retrograde cholangiopancreatography) which was aborted upon the patient waking from anaesthesia during the procedure. In late 2002, the patient underwent a completed ECRP which revealed stage III Hepatitis C with precancerous fibrosis. In 2006, the plaintiff was diagnosed with liver cancer and ultimately received a transplant.

The plaintiff filed his initial lawsuit in early 2003, naming only the physician who performed the initial ECRP. The complaint alleged medical negligence and included allegations related to a failure to monitor the plaintiff’s condition. After years of discovery, the plaintiff voluntarily dismissed the suit in 2008, only to refile later the same year.

Upon refiling, the plaintiff named not only the previous defendant, but a several other physicians involved in his care back in 2002-03. Faced with a motion to dismiss based on the statute of repose regarding the new defendants, the plaintiff argued that by failing to relay accurate or know diagnoses, the defendants fraudulently concealed his injuries. The district court dismissed the new defendants.

The appellate court affirmed, explaining that a mere failure to diagnose or to relay test results is not sufficient to show fraudulent concealment. Rather, a plaintiff must allege that the defendant took action specifically calculated to conceal a cause of action. Moreover, the Court held that the activity constituting fraudulent concealment must obfuscate an entire cause of action, not merely the extent or nature of injuries. As the plaintiff obviously knew he was injured to some degree upon filing his initial suit in 2003, any actions by the defendants could not have concealed the action. Finally, the Court held that a failure to advise a patient of test results is not a continuing violation which would toll the statute of limitations. The statute begins to run at the time of the injury, not at the time the patient is advised of test results.

The holding in Hanks v. Cotler bolsters that notion that, particularly in the realm of medical malpractice, the fraudulent concealment exception to the statute of limitation and repose is exceedingly difficult for plaintiffs to establish. Knowledge of any injury, however limited, will foreclose this route around the time limitations for bringing suit. Although this premise is not new to Illinois law, the case reaffirms much older authority on the matter, providing a fresh look at the application of fraudulent concealment in the medical malpractice context.

Originally published in the Winter 2011 edition of Quinn Quarterly.