Kern v. St. Joseph Hosp., Inc.

697 P.2d 135



Where a party entitled to bring a cause of action is prevented from obtaining certain knowledge by a potential respondent's fraudulent concealment, the statutory limitation on the time for bringing the action will not begin to run until the entitled party discovers the right of action or, by the exercise of ordinary diligence, could have discovered the right of action.


Petitioner's decedent received radiation therapy for bladder cancer at respondent's facility, and the treatments were administered by defendant's employee. The employee told the petitioner and decedent that he would need 30 treatments, but the treatment was discontinued after 25 treatments, with no explanation. Decedent experienced complications after the treatment, and died. On the death certificate, the cause of death of denoted as bladder cancer. The petitioner and the decedent believed that the problems were acceptable complications of the treatment, but were never told that the decedent had received an excessive amount of radiation. However, after reading a newspaper article in 1981 regarding excessive radiation having allegedly been administered at the respondent's hospital, they began to become suspicious. Petitioner sued the respondent for concealing the risks of the treatment, and the trial court granted the respondent's motion for summary judgment. The appellate court affirmed, and the petitioner appealed.


Did a genuine issue of material fact exists as to whether respondents fraudulently concealed medical malpractice?




In reversing the lower court's affirmation of the respondent's motion for summary judgment, the court acknowledged that though the statute of limitations applied, a genuine issue of material fact existed as to whether respondents fraudulently concealed medical malpractice. As a result, the court reversed the lower courts' decisions and remanded to the trial court because this concealment could have possibly tolled the limitations period.

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