- 2006 Volume 3 Number 3 July- September
- Legal Case Review: Nardone v. Reynolds: The effect of fraudulent concealment on the medical malpractice statute of limitations.
Legal Case Review: Nardone v. Reynolds: The effect of fraudulent concealment on the medical malpractice statute of limitations.
JoAnn M. Guerrero, Esq. Webster, Chaires & Partners, P.L.
Case Summary: Nardone v. Reynolds: The effect of fraudulent concealment on the medical malpractice statute of limitations.
In Nardone v. Reynolds, 333 So.2d 25 (Fla.
1976) reh’g den. 546 F.2d 906 (5th Cir Fla. 1977), the Florida Supreme Court reviewed when a medical malpractice matter accrues. The Court addressed numerous certified questions, however, the focus of this review is upon situations where the statute of limitations was extended beyond the two years from the time of discovery due to issues of fraud, concealment or intentional misrepresentation; an issue of first impression in Nardone.
Briefly, this matter involved 13-year old Nicholas Nardone, who presented to Jackson Memorial Hospital with blurred vision, poor coordination and headaches. Nardone underwent several brain operations over a three-month stay at the hospital. His condition involved an obstruction of the sylvius aqueduct, for which a shunt was inserted to bypass the aqueduct and permit the flow of spinal fluid between the ventricles of the brain into the right side of the child’s head. After some complications with the shunt, a pantopaque ventriculogram (PPV) was performed, contrary to proper procedure which demonstrated at the time that such should not be completed where there is a shunt. The pantopaque entered the shunt and the veins of the child’s neck, and the child’s condition subsequently worsened. Upon being discharged from the hospital, the child was blind, comatose and had suffered irreversible brain damage. The parents were not told that the PPV would be administered or that it was performed.
They were advised that the child’s condition had simply deteriorated and the physicians had not disclosed the course of treatment to the parents despite being asked to do so.
During subsequent care at another hospital, Jackson Memorial provided excerpts of the records requested. However, four years later, the records were again requested, and on this occasion, included the report of the PPV.
Allegation: The parents of Nardone alleged that though the statute of limitations had run, they should still be entitled to bring their medical malpractice cause of action as they were unaware of the circumstances leading to their child’s deteriorating condition.
Analysis: In short, the Florida Supreme Court held that the statute of limitations in a medical malpractice case commences when:
1. The plaintiff has notice of the negligent act giving rise to a cause of action or
2. when the plaintiff has notice of the physical injury caused by the negligent act. See Nardone; Barron v. Shapiro, 565 So.2d 1319 (Fla. 1990).
The Nardone Court ultimately held that the physicians’ non-disclosure of the possible causes of the child’s medical condition, unaccompanied by misrepresentation, did not toll the statute of limitations in a malpractice action. See id. at 27. Instead, the Court held that though the parents did not have knowledge of the cause of their son’s condition, they had knowledge of the condition, and through exercise of reasonable diligence, were on notice of the possible invasion of their legal rights. See id. at 32.
However, of great importance is the Court’s holding that the statute will be tolled where actions by the defendant substantiate fraudulent concealment. The two elements required before the equitable principle of fraudulent concealment will be utilized to toll the statute of limitations are:
1. The plaintiff must show successful concealment of the cause of action, and
2. fraudulent means to achieve the concealment. See Nardone at 37.
A demonstration of fraudulent concealment includes a circumstance where a plaintiff can bring forth evidence that a defendant prevented the discovery of the injury through means of fraud, by intentional misrepresentation or concealment. If the plaintiff is successful in proving these elements, the statute of limitations period will be extended.
In terms of active misrepresentation, such may be evidenced by an active effort by the guilty party to fail to disclose information where a fiduciary or confidential relationship exists, and where a duty to disclose material information exists. See Nardone at 38; Nehme v. Smith-kline Beecham Clinical Laboratories, Inc., and Menendez v. Public Health Trust of Dade County, 566 So.2d
279, 281 (Fla. 3d DCA 1990)(“when defendants actively misrepresent or conceal their negligence, or conceal known facts relating to the cause of the injury, the statute of limitations does not begin to run until plaintiff is able to discovery the negligence.”)
Risk Reduction Strategies: From Nardone and subsequent cases, we gain an understanding of when a cause of action accrues and how the statute of limitations may be tolled through fraudulent concealment and active misrepresentation. However, in understanding the importance of the physician-patient relationship and the fiduciary duty encompassing the relationship, it is equally essential to understand your rights as a health care practitioner.
1. First, the defrauding party must have knowledge of the facts concealed. (i.e. a physician cannot be found to have committed fraudulent concealment where a hemostat is unknowingly left in a patient’s body.) See id.
2. The physician-patient relationship is of a fiduciary nature, imposing a duty on the parties to disclose material information between the parties. See Nardone at 37; Testone v. Adams, 373 So.2d 362 (Fla. 1st DCA 1979) While fraudulent concealment by a defendant which serves to prevent a plaintiff from discovering his or her cause of action will toll the statute of limitations until the facts of such concealment can be discovered through due diligence, it is essential to recognize that a physician need not disclose all potential causes of poor consequences where no request was made to know the cause. See Nardone at 37.
3. As the Court stated in Nardone, where the symptoms or condition are such that the physicians in the exercise of reasonable diligence cannot reach a judgment as to the exact cause of the injury or condition and can only conjecture or hypothesize as to potential causes, he or she is under no duty to disclose a conjecture of which he or she is unsure. See Nardone at 39. There is no concomitant duty imposed on the physician to relate all merely possible or likely causes of the injury. See Nardone at 43.
4. A physician’s silence as to an unverifiable possible cause does not substantiate fraudulent withholding which will toll the statute of limitations. See Nardone at 39.
5. A prospective plaintiff’s ignorance of easily discoverable facts substantiating a cause of action does not toll the statute of limitations if the facts could have been discovered through due diligence. See Nardone at 42.
Examples of continuing fraudulent concealment may include:
• A surgeon who knowingly left a ball of gauze in his patient’s abdominal cavity following an operation, and failed to advise the patient of this fact. See Burton v. Tribble, 189 Ark. 58 (1934).
• A dentist fraudulently concealed that he left a piece of broken metal in an area of bone structure following the removal of an impacted wisdom tooth and where x-rays taken ten months following removal confirmed this. Proctor v. Schomberg, 63 So.2d 68 (Fla. 1953).
In such cases, the statute of limitations would not begin to run until the patient discovered or had a reasonable opportunity to discover the injury.
6. Recent case law evidences the slow evolution of more specific parameters to the fraudulent concealment doctrine and tolling the statute of limitations. It is reasonable to expect that each case involving a potential tolling of the statute of limitations will be fact intensive and in strict consideration of the information disclosed to the patient or the patient’s family. A health care practitioner should ensure that his or her relationship with the patient demonstrates a respect of the fiduciary relationship, yet does not unnecessarily warrant exposure to litigation.
7. The holding in Nardone has resulted in subsequent harsh rulings. Prospective plaintiffs argue that Nardone has put defendants in more advantageous positions as it placed a heightened burden on plaintiffs, requiring them to have an enhanced knowledge of the specific logistics of a patient’s quality of received care to avoid losing an opportunity to seek legal recourse for malpractice. However, defendants contend that as a result of Nardone, litigation is increased as individuals will proceed with a lawsuit, even without sufficient basis, rather than risk losing their opportunity for legal recourse per the statute of limitations. Courts have attempted to address this very issue through more stringent requirements to sustain a cause of action. This is difficult, however, as the nature of certain injuries may apparently have resulted from medical malpractice, yet there are situations where the injury could have resulted from natural causes.
8. It should be noted that the premise set forth in Nardone should be considered against case law regarding the statute of repose, which further exemplifies the ongoing confusion in terms of when an action may be brought.
9. Since the landmark decision in Nardone, the Legislature has further clarified a physician’s duty to disclose adverse incidents. As to health care practitioners, Fla. Stat. 465.0575 requires:
A. every licensed health care practitioner to inform each patient, (or, if the patient is developmentally disabled or incapacitated, the patient’s spouse, adult child, parent, adult sibling, adult relative, close friend, proxy, surrogate or guardian) in person about adverse incidents that result in serious harm to the patient.
B. Similarly, Fla. Stat. 395.1051 and 395.0197 discusses a hospital’s duty to notify patients of adverse incidents, and requires this be done by an appropriately trained person designated by each licensed facility.
It is important to remember that disclosures in compliance with these statutes shall not constitute an admission of liability, nor can be introduced as evidence in a legal claim.
Shands Healthcare core policy and procedure on disclosure can be found on the Shands Intranet:
If you have any questions or comments about this case review, feel free to email me or call me at 407-691-0500.