Appeals court clarifies "concealment" exception to medical malpractice claims

By Joe Forward, Legal Writer, State Bar of Wisconsin

May 28, 2010 – In Pagoudis v. Korkos, 2009AP2965 (May 26, 2010), the appeals court held that a patient must have contact with a doctor subsequent to a negligent act to invoke the "concealment" exception to the statute of limitations for medical malpractice claims.

On Feb. 15, 2000 , Dr. George Korkos removed a large tumor from the neck of Elias Pagoudis. A final pathology report dated March 8, 2000 revealed that the tumor was cancerous, and close follow-up was recommended. A note in Pagoudis's file indicated that he visited Dr. Korkos's office and was notified of the final pathology report on March 15, 2000. Pagoudis disputes this.

Pagoudis claims he never knew about the final pathology report. He only learned of it, Pagoudis asserts, when he requested medical records in July of 2007 because of a reoccurrence.

Pagoudis filed a law suit on Nov. 14, 2008 against the doctor's office and the Wisconsin Patients Compensation Fund. He claims Dr. Korkos "failed to inform him of the final pathology report results and failed to require follow-up care associated with his medical condition."

Court analysis

Dr. Korkos requested summary judgment based on Wis. Stat. section 893.55(1m)(b), which sets a five-year statute of limitations on medical malpractice claims from the date of the act or omission, regardless of when the injury was discovered or should have been discovered. Pagoudis discovered the injury in 2007 and the injury occurred in 2000.

Dr. Korkos fabricated a patient-file note, Pagoudis alleges, to conceal his failure to inform Pagoudis of the final pathology report. Thus, Pagoudis invoked a "concealment" exception to the statute of limitations under section 893.55(2), claiming the note evidenced concealment.

The circuit court granted summary judgment in favor of Dr. Korkos because Pagoudis failed to establish that Dr. Korkos concealed his failure to inform. The appeals court affirmed.

The critical inquiry under section 893.55(2), the appeals court wrote, is whether "there are any facts to show that Korkos concealed the prior omission from Pagoudis," causing delay in bringing suit before the right of recovery was extinguished by the statute of limitations.

The exception only applies, the court noted, "when concealment from the patient prevents or hinders discovery of the negligent act or omission" before the statute of limitations runs.

The court distinguished Halverson v. Tydrich, 156 Wis. 2d 202, 456 N.W.2d 852 (Ct. App. 1990), a case in which a doctor failed to recognize the cause of a patient's continued foot and ankle problems when he should have recognized them. It was determined that the doctors involved may have given negligent advice and treatment that would have prevented a lawsuit during the statutory period.

The appeals court noted that in Halverson, "a genuine issue of material fact existed as to whether [the doctors] had recognized the injury – had actual knowledge of the thing concealed – and, during subsequent treatment … intentionally failed to disclose it."

Here, the mere existence of a note in the medical file, the court concluded, is not evidence of concealment. Whether the note was fabricated or not, "there is no evidence that the note prevented Pagoudis from discovering the negligence" before the statute of limitations ran.

Dr. Korkos had no opportunity to conceal any negligence, the court found, because there was no doctor-patient communication after Korkos obtained the final pathology report. That is, there was no opportunity to conceal.

Concealment under section 893.55(2) requires subsequent contact between doctor and patient after the injury or knowledge of injury occurs, the court held. Pagoudis "failed to demonstrate that Korkos's alleged concealment caused Pagoudis's delay in discovering the negligent omission" until after the statute of limitations period expired, the court concluded.