DIVISION I

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

WENDELL L. GRIFFEN, JUDGE

CA01-771

February 6, 2002

DONNA LITTLE AN APPEAL FROM GARLAND

APPELLANT COUNTY CIRCUIT COURT

[CIV00-553-I]

V. HON. JOHN HOMER WRIGHT, JUDGE

ST. PAUL MERCURY

INSURANCE COMPANY

APPELLEE AFFIRMED

Donna Little, the sister of David Rosborough, deceased, appeals as special administrator of his estate. David committed suicide while in the Leo N. Levi Memorial Hospital (hospital) in Hot Springs, Arkansas. Appellant originally filed a medical malpractice action against the hospital. She later substituted St. Paul Mercury Insurance Company (appellee), the insurance carrier for the hospital, as the defendant, due to the hospital's immunity from suit as a non-profit entity. Appellee filed a motion for summary judgment, asserting that the claim was barred by the statute of limitations. Appellant countered that the statute of limitations was tolled due to the hospital's fraudulent concealment of the facts surrounding David's death. The trial court granted appellee's motion for summary judgment. Appellant now argues that the trial court erred in granting summary judgment because genuine issues of material fact remained concerning whether thehospital engaged in fraudulent concealment. We disagree and affirm.

David was admitted to the psychiatric ward of the hospital on August 17, 1995. Because he was admitted due to a suicide attempt, he was placed on fifteen-minute checks. It is undisputed that David was last checked at 9:15 p.m. on August 19. He was found asphyxiated in his room at 10:45 p.m. that same evening.

Appellant, a resident of Pennsylvania, traveled with her parents to Arkansas in October 1995. During that visit, appellant spoke with the hospital's administrator, Patrick McCabe, and received copies of David's medical records, which clearly indicated that the fifteen-minute checks had not been conducted as ordered. She suspected that her brother, a former employee of the hospital, had been killed, and inquired about the cause of his death. McCabe allegedly told her that the hospital had done everything it could for David. At the time of the meeting, appellant was aware that the fifteen-minute checks had not been conducted as ordered and she asked McCabe why the checks had not been conducted as ordered. According to appellant, McCabe responded that he would have to check with the staff.

McCabe failed to reveal to appellant that two hospital employees, Cynthia Erskine and Louise Jimmerson, had been terminated on August 24, 1995, because they failed to perform the fifteen-minute checks on David, for their failure to direct patient care by following physician's orders, and for their failure to appropriately utilize nonlicensed staff in delivering patient care. Erskine was also an attending nurse for another person who committed suicide two months before David died. She subsequently filed a lawsuit againstthe hospital for wrongful discharge. In its pretrial brief, filed on March 22, 1999, the hospital cited Erskine's failure to perform fifteen-minute observation checks among the several reasons for termination.

During appellant's October 1995 visit, she also spoke with an unidentified supervisor or nurse at the hospital who called appellant's brother, Ronald Rosborough. Appellant stated in her deposition that the nurse said that "it should not have happened that way" and that David was not the first person to whom "that" had happened. During the October 1995 visit, appellant also spoke with a Detective Cotton. He told her that she should do something because it, meaning David's death, should not have happened, and that "[t]his is not the first one." Shortly after David's death, appellant also read an article in a local newspaper. The article stated that David was found at approximately 10:45 p.m. by a hospital employee who said she that she last checked on him at 9:15 p.m.

Appellant first consulted an attorney after her visit to Hot Springs, and consulted three more attorneys in 1996. Although she presented them with all of the information she had, including David's medical records, none of them ever filed suit.

Appellant received an anonymous letter in April 1999, informing her that Erskine and Jimmerson had been terminated due to David's death. The letter also informed her of the newspaper article that she had already seen. The letter further informed her 1) of litigation in which the hospital asserted that the reasons for Erskine's termination were incompetence, inefficiency, or negligence; 2) that an ongoing investigation by the hospital was being conducted during her visit in October 1995; 3) that another prior suicide occurred in thesame ward two months prior to her brother's death; and 4) that hospital staff were "definitely responsible" for her brother's death. The letter also stated that she might have a problem regarding the statute of limitations, informed her of certain memos sent during the course of the hospital's internal investigation, and provided her with David's peer review number, relating to the hospital's in-house review of his treatment.

We hold that the trial court did not err in granting summary judgment in favor of appellee. Summary judgment should be granted only when a review of the pleadings, depositions, and other filings reveals that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. See Johnson v. Arthur, 65 Ark. App. 220, 986 S.W.2d 874 (1999). When the movant makes a prima facie showing of entitlement, the respondent must meet proof with proof by showing a genuine issue as to a material fact. See id. In reviewing the grant of a motion for summary judgment, we review the facts in the light most favorable to the appellant and resolve any doubt against the moving party. See id. Summary judgment is not proper where evidence reveals aspects from which inconsistent hypotheses might reasonably be drawn and reasonable minds might differ. See id. We need only decide if the granting of summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of a motion left a material question of fact unanswered.  See id.

All actions for medical injury shall be commenced within two years after the cause of action accrues. See Ark. Code Ann. § 16-114-203(a)(Supp. 2001). The date of accrual of the cause of action is the date of the wrongful act. See Ark. Code Ann. § 16-114-203(b). It is undisputed that the suit in this case was brought well after the two-year statute of limitations period had expired. However, pursuant to common law, where affirmative acts of concealment by a person charged with fraud prevent discovery of misrepresentations, the limitations period will be tolled until the fraud is discovered or should have been discovered with the exercise of reasonable diligence. See Norris v. Baker, 320 Ark. 629, 899 S.W.2d 70 (1995). When the running of the statute of limitations is raised as a defense, the defendant has the burden of affirmatively pleading this defense. See Smith v. St. Paul Fire & Marine Ins. Co., 76 Ark. App. 264, 61 S.W.3d 231 (2001). If it is clear from the face of the complaint that the action is barred by the applicable limitations period, the burden shifts to the plaintiff to prove by a preponderance of the evidence that the statute of limitations was in fact tolled. See id. Although the question of fraudulent concealment is normally a question of fact that is not suited for summary judgment, when the evidence leaves no room for a reasonable difference of opinion, a trial court may resolve the fact issue as a matter of law. See id.

Because this case arises from a summary judgment motion, the issue is whether there remain any genuine issues of material fact with regard to whether the statute of limitations should be tolled. The resolution of this issue turns on whether McCabe's statements rose to the level of fraudulent concealment. Under Arkansas law, no mere ignorance on the part of the plaintiff of his rights, nor the mere silence of one who is under no obligation to speak, will prevent the statute of limitations from running. See Norris v. Baker, supra.

Accepting the evidence in the light most favorable to appellant, as the nonmovingparty,1 the evidence supports that appellant visited McCabe with the stated purpose to discover the cause of her brother's death because she suspected that he had been murdered. She informed McCabe of her suspicions during their face-to-face meeting. She also asked McCabe why proper checks were not conducted. McCabe responded that he would have to check with his staff. He also told her that David's death was "unavoidable" and that the hospital had done everything it could for David.

McCabe's statement went beyond a mere non-disclosure; it was an affirmative misrepresentation. However, in order to make a showing of fraudulent concealment, there must be some positive act of fraud, something so furtively planned and secretly executed as to keep the plaintiff's cause of action concealed, or perpetrated in a way that it conceals itself. See Norris v. Baker, supra.2

We agree with appellee that there was no "concealment" in this case, fraudulent or otherwise, because the hospital provided David's medical records to appellant, and these record's clearly indicate that the fifteen-minute checks were not conducted as ordered. Wehave previously held that the statute of limitations is not tolled due to fraudulent concealment where the alleged basis for the malpractice suit is found in the plaintiff's medical records, which have been supplied to the plaintiff. See Smith v. St. Paul Fire & Marine Ins. Co., supra; see also Meadors v. Still, 344 Ark. 307, 40 S.W.3d 294 (2001); Shelton v. Fiser, 340 Ark. 89, 8 S.W.3d 557 (2000).

Appellant attempts to distinguish these cases on the ground that these cases did not involve an affirmative misrepresentation which deflected attention away from the hospital's liability.3 However, the dispositive issue is not the manner in which the cause of action was revealed. That is, the dispositive issue is not the fact the appellant's cause of action was revealed in medical records, but that because it was revealed, by whatever manner, it was not concealed.

Here, the alleged cause of action was apparent from David's records, which were undisputedly supplied to appellant in October 1995. Neither McCabe's misrepresentation that the hospital did all they could nor the fact that McCabe failed to disclose confidential personnel information concerning the termination of Jimmerson and Erskine4 in any way concealed appellant's cause of action, as is evidenced by the fact that she sought the advice of four attorneys in the year following David's death - after McCabe's misrepresentation to her. Consequently, she is hard pressed to argue that a genuine issue of fact remains that her cause of action was concealed.

Thus, we agree that there were no issues of material fact with regard to whether McCabe's misrepresentation constituted fraudulent concealment and hold that the trial court did not err in denying appellee's motion for summary judgment.

Affirmed.

Hart and Vaught, JJ., agree.

1 Although during the hearing on the motion for summary judgment, appellee's attorney argued that McCabe denied making those representations to appellant, there is no deposition by McCabe in the record to support this assertion.

2 Appellant argues that the misrepresentation in this case is analogous to the affirmative misrepresentation as discussed in Adams v. Arthur, 333 Ark. 53, 969 S.W.2d 598 (1998) (a consolidated suit involving numerous plaintiffs), in which the doctor told plaintiff Darlene Kinder that the material to be used in a surgical procedure was not experimental. The Adams court reversed the grant of summary judgment, finding that such a statement went beyond a mere representation regarding efficacy and constituted a fact question as to fraudulent concealment. Even though we agree that there was an affirmative misrepresentation in this case, we disagree that it was analogous to the representation made to the Kinder plaintiff.

3 To support this argument, appellant cites Martinez v. Cooper Hosp.-Univ. Med. Ctr., 747 A.2d 266 (N.J. 2000)(holding discovery rule tolled statute of limitations for medical malpractice where, although plaintiff had medical records indicating the cause of death, those records did not indicate the hospital was at fault), Bohus v. Beloff, 950 F.2d 919 (3rd Cir. 1991) (applying Pennsylvania discovery rule to toll statute of limitations where doctor's repeated assurances caused the plaintiff to relax her vigilance and deviate from her right of inquiry as to a cause of action for medical malpractice), and Duncan v. Leeds, 742 F.2d 989 (6th Cir. 1984)(holding complaint sufficiently stated cause to toll statute of limitation for medical malpractice where complaint established physicians knew the extent of the minor victim's injuries and misrepresented her condition on her discharge summary).

However, each of these cases arose in jurisdictions applying the discovery rule, which provides that the cause of action in malpractice cases accrues, and the limitations period begins to run when the injury is, or with reasonable diligence, should have been, discovered. Arkansas does not apply this rule. In Arkansas, as noted previously, the cause of action begins to accrue when the injury occurs, and the statute of limitations is tolled until fraud is discovered or should have been discovered with the exercise of reasonable diligence. See Norris v. Baker, supra.

4 Moreover, one would presume that the nurses' names would be in David's medical records, and nothing would have prevented appellant from personally contacting them.