Medical Malpractice By: Edward J. Aucoin, Jr. Pretzel & Stouffer, Chartered Chicago First District Explains Requirements for Claims of Fraudulent Concealment Under 735 5/13-215 and Reaffirms Requirements for Pleading Duty in Medical Negligence Action On March 6, 2006, the Illinois Appellate Court, First District, released its opinion in Cangemi v. Advocate South Suburban Hospital, 2006 WL 539428 (Ill. App. 1 Dist. March 6, 2006), which dealt with the requirements for tolling the statute of limitations and statute of repose in medical malpractice actions when there are claims of fraudulent concealment by the defendants as to the existence of a cause of action. The opinion is also helpful in supporting future motions to dismiss, as it provides a thorough explanation of the detail required when pleading the duty of a medical professional in a complaint. 1 Justice Gordon delivered the opinion for the court. In Cangemi, the plaintiffs, Michael Cangemi and his mother, Madeline Clement Belt, appealed the dismissal of their first amended complaint against Advocate South Suburban Hospital and Edgar Del Castillo, M.D. for medical negligence in connection to injuries allegedly sustained during the delivery of Michael in 1982 and the trial court s refusal to allow them to file a second amended complaint. The trial court had dismissed the action, finding that the amended complaint was barred by the statute of limitations and that allowing the filing of a second amended complaint could not cure the running of the statute. On appeal, the plaintiffs alleged that the statutes of limitation and repose normally applicable did not apply to their action because the defendants fraudulently concealed the existence of the causes of action. The First District rejected these arguments and affirmed the trial court s dismissal on grounds other than the expiration of the statute of limitations. On July 7, 2003, the plaintiffs filed a five-count complaint against the defendants and four other physicians seeking recovery for brain damage sustained by Michael prior to his delivery via caesarean section on January 18, 1982. They also sought other damages sustained by both Michael and Madeline as a result of the birth. Count V of the complaint alleged that the statutes of limitation and repose that would normally be applicable to the action were tolled in this case because the defendants fraudulently concealed Michael s injuries by not informing Madeline of the circumstances surrounding his birth. That original complaint was dismissed by the trial court in response to the defendants motion to dismiss pursuant to 735 ILCS 5/2-615 (West 2004), the circuit court finding that the complaint was insufficient to support fraudulent concealment because no allegations were made that the defendants acted in an affirmative manner to conceal the circumstances around Michael s birth. The plaintiffs were granted leave to amend. On March 19, 2004, the plaintiffs filed their first amended complaint, which consisted of six counts and a historical and factual background section, which contained specific allegations of fraudulent concealment applicable to all counts. Allegations of fraudulent concealment by the defendants around the time of birth included: 1) the failure by Dr. Del Castillo to inform Madeline that he had observed Page 1 of 6
fetal distress prior to the c-section delivery; 2) misrepresentations by Dr. Del Castillo to Madeline that the c-section was necessary to prevent injury to the baby due to the infant s large head; 3) medical records which listed Dr. Hiatt as the delivering physician when he actually did not arrive until after the emergency c-section was completed; 4) misrepresentations by the nursing staff post-delivery as to Dr. Hiatt s involvement and Michael s condition; 5) misrepresentations by Dr. Hiatt that he was present for the c-section, the reason for the c-section and regarding Michael s condition; 6) misrepresentations by Dr. Chavez that Dr. Hiatt had performed the c-section and as to Michael s condition; and 7) statements by Dr. McMann to Madeline that her labor and delivery did not show any problems and that Michael was very healthy. The plaintiffs further pled that they were not aware that Michael had suffered fetal distress prior to birth and that he required resuscitation when born until almost 20 years later, when Madeline requested a complete set of Michael s medical records to support his application for financial assistance for college on the basis of being developmentally slow, at which time she reviewed the Advocate Hospital chart. The defendants filed motions to dismiss the first amended complaint pursuant to Sections 2-615 and 2-619 of the Illinois Code of Civil Procedure. As an attachment to their response to those motions, the plaintiffs filed numerous exhibits, including affidavits of Madeline and her attorney, several of Michael s hospital records, and nursing protocols. The plaintiffs also requested leave to file a second amended complaint. The circuit court granted the defendants motions to dismiss, finding the statute of limitations had expired and subsequently denied the plaintiffs motion for reconsideration, which had alleged error and the existence of new evidence. In affirming the circuit court, the First District identified two primary issues: 1) whether the circuit court erred in concluding that the plaintiff s claims were barred by the statute of limitations and not subject to the fraudulent concealment exception; and 2) whether the circuit court abused its discretion in denying their request to file a second amended complaint to make additional allegations based on newly discovered medical records. As to the first issue, the Hospital argued that any fraudulent concealment perpetrated by its agent physicians could not be attributed to it for purposes of tolling the statute of limitations. Dr. Del Castillo argued that the plaintiffs failed to properly allege fraudulent concealment attributable to him. As to the second issue, the defendants argued that the plaintiffs proposed second amended complaint failed to remedy the defects in the first amended complaint, and therefore, the circuit court s refusal to allow the second amendment was proper. Fraudulent Concealment The statutes of limitation and repose applicable to the actions at issue are set out in Section 13-212 of the Illinois Code of Civil Procedure. 735 ILCS 5/13-212 (West 2004). Since Madeline was an adult at the time Michael was born, she was subject to Section 13-212(a), which imposed a four-year repose period running from the date of the defendants alleged negligence, which cut off her claim in January of 1986. Section 13-212(b) applied to Michael, who was a minor at the time of the alleged negligent conduct, and imposed a maximum repose period of eight years stemming from the date of the negligence, thereby extinguishing Michael s claim in January of 1990. The plaintiffs conceded that the time frames set out in Section 13-212 were exceeded prior to the filing of their initial complaint, but argued the exception listed in 735 ILCS 5/13-215 applied to the claims. Section 13-215 states: If a person liable to an action fraudulently conceals the cause of such action from the knowledge of the person entitled thereto, the action may be commenced at any time within 5 years after the person entitled to bring the same discovers that he or she has such cause of action, and not afterwards. 735 ILCS 5/13-215 (West 2004). As such, if the exception provided in Section 13-215 were applied in Cangemi, the plaintiffs complaint would be timely because it was filed on July 3, 2003, which was within five years of Madeline s alleged discovery of the cause of action in August of 2002. The First District noted that in Page 2 of 6
order to invoke Section 13-215, the plaintiffs must demonstrate affirmative acts by the defendant which were designed to prevent, and in fact did prevent, the discovery of the claim. [Citations omitted.] Mere silence of the defendant and the mere failure on the part of the plaintiff to learn of a cause of action do not amount to fraudulent concealment. [Citations omitted.] In addition, the court stated that fraudulent misrepresentations that form the basis of the cause of action do not constitute fraudulent concealment under Section 13-215 in the absence of a showing that the misrepresentations tended to conceal the cause of action, citing to Foster v. Plaut, 252 Ill. App. 3d 692, 699, 625 N.E.2d 198, 203 (1st Dist. 1993). However, the First District found that the plaintiffs failed to adequately state a cause of action against Dr. Del Castillo for negligence and therefore could not attribute his negligence to Advocate Hospital as a principal. The court rejected the plaintiffs argument that Dr. Del Castillo fraudulently misrepresented the necessity for an emergency c-section in order to conceal his negligence and that of the hospital in not reacting to the fetal distress sooner. The court did so by attacking the sufficiency of the pleadings in the complaint. Specifically, the First District found that the first amended complaint failed to adequately assert a duty owed by the defendants for the alleged negligent acts. The first amended complaint stated Dr. Del Castillo s duty as follows: At all relevant times, Del Castillo, individually and as agent of [Advocate Hospital], had a duty to possess and apply the knowledge and use the skills and care ordinarily used by reasonably well qualified medical practitioner [sic] in the same or similar localities under circumstances similar to those in this case. The First District stated that [s]uch a general statement, without more, cannot stand for the specific breaches of duty plaintiffs appear to assume Dr. Del Castillo committed, namely, that he breached a duty to attend to Madeline earlier and a duty to further expedite the surgery after observing a problem. According to the court, the plaintiffs should have alleged that Dr. Del Castillo was under a duty to be aware of Madeline s presence and/or that he had a duty to perform the surgery himself. Instead, the plaintiffs failed to allege that Dr. Del Castillo had any additional duty beyond calling the code blue, scheduling the caesarean section, and obtaining Madeline s consent for the surgery.... Therefore, Plaintiff s claims against Dr. Del Castillo and Advocate Hospital as his principal were legally insufficient. The First District further stated that fraudulent concealment, as codified in Section 13-215, is not a cause of action in and of itself. [emphasis added] Rather, it acts as an exception to the time limitations imposed on other underlying causes of action such as medical negligence under 735 ILCS 5/13-212. As a result, direct acts of fraudulent concealment are not necessarily required by a principal and the fraudulent concealment of a cause of action by someone other than the defendant may toll the limitations period, but only where the person fraudulently concealing the cause of action is in privity with or an agent of the defendant, citing to Serafin v. Seith, 284 Ill. App. 3d 577, 590, 672 N.E.2d 302, 311 (1996). Therefore, if Dr. Del Castillo were shown to be Advocate Hospital s agent, his acts of fraudulent concealment could potentially act to toll the limitations period on an action against Advocate Hospital. However, the First District refused to address whether the plaintiffs adequately pled fraudulent concealment, since the court determined that the plaintiffs had not adequately pled the duty and breach elements of the underlying negligence cause of action against Dr. Del Castillo to which that exception could apply. The court next addressed the plaintiffs argument that they adequately pled fraudulent concealment attributable to Advocate Hospital by way of the statements made by the hospital s actual or apparent agents, including Drs. Del Castillo, Hiatt, and McMann, as well as the nurses. Advocate Hospital argued that any fraudulent concealment by an agent cannot apply to toll the limitations period on a cause of action against a principal unless the principal is actually aware of the agent s fraudulent concealment. The First District agreed with the hospital and cited Wood v. Williams, 142 Ill. 269, 31 N.E.2d 681 (1892) in support. In Wood, the Illinois Supreme Court affirmed the dismissal of a claim Page 3 of 6
on the basis of untimeliness, quoting Section 276 of Wood on Limitations: [t]he fraudulent concealment must have been that of the party sought to be charged, and a mere allegation of proof that it was the act of his agent will not be sufficient, unless he is in some way shown to have been instrumental in or cognizant of the fraud. Wood, 142 Ill. at 280-81, 31 N.E.2d at 683, (quoting H. Wood, Wood on Limitations 276 (1882).) As the First District noted, Wood has more recently been approved of and followed by the Illinois Supreme Court in Chicago Park District v. Kenroy Inc., 78 Ill. 2d 555, 563, 402 N.E.2d 181, 185 (1980) and by the First District in Barbour v. South Chicago Community Hospital, 156 Ill. App. 3d 324, 325, 509 N.E.2d 558, 559 (1st Dist. 1987). The First District rejected the plaintiff s attempts to distinguish Wood, Kenroy, and Barbour on the basis that the agents in those cases were not full-time employees and, thus, were nonservant agents as opposed to the physicians and nurses in the instant case. In response, the court found that the Illinois cases that have addressed the issue have not made the degree or scope of agency a dispositive consideration in determining whether an agent s fraudulent concealment can be imputed to a defendant principal, but have rested the inquiry on whether the defendant principal had knowledge of the fraudulent concealment. The court stated, while equity is clearly not in favor of a tortfeasor who hides his own wrongful conduct even years after the limitations period has run, such disfavor would not necessarily attach as between an unknowing principal defendant and a plaintiff who brings a late claim. Courts in Illinois have decided not to extend the liability of an unknowing principal on the basis of the fraudulent concealment of an agent. Therefore, the First District found that the plaintiffs claims against Advocate Hospital in negligence were untimely because they had not alleged knowledge or ratification of the agents alleged fraudulent concealment on the part of Advocate Hospital. The First District affirmed the circuit court s dismissal of those counts on that basis. Equitable Estoppel The plaintiffs also argued that the doctrine of equitable estoppel provided a reason independent from the fraudulent concealment provision of Section 13-215 to reverse the circuit court s dismissal of their case on the basis of timeliness. However, the First District agreed with the defendants that the plaintiffs waived this argument by not asserting it in the court below, citing Central Illinois Public Service Co. v. Allianz Underwriters Insurance Co., 244 Ill. App. 3d 709, 720, 614 N.E.2d 34, 42 (1st Dist. 1993). Plaintiffs Request for Leave to File a Second Amended Complaint The plaintiffs next argued the circuit court abused its discretion in failing to allow them to file their second amended complaint, which made additional allegations of fraudulent concealment and agency, raised additional causes of action based on common law fraud, and charged the defendants with destruction of evidence. The plaintiffs argued that these allegations in their second amended complaint could cure an otherwise untimely complaint. The court recognized that the decision whether to grant a motion to amend pleadings rests within the discretion of the circuit court, and a reviewing court will not reverse a circuit court s decision absent an abuse of that discretion, citing to Lee v. Chicago Transit Authority, 152 Ill. 2d 432, 467, 605 N.E.2d 493, 508 (1992). The court stated that the relevant factors to be considered in determining whether the circuit court abused its discretion are: (1) whether the proposed amendment would cure the defective pleading; (2) whether other parties would sustain prejudice or surprise by virtue of the proposed amendment; (3) whether the proposed amendment is timely; and (4) whether previous opportunities to amend the pleading could be identified, citing to Loyola Academy v. S & S Roof Maintenance, Inc., 146 Ill. 2d 263, 273, 586 N.E.2d 1211, 1215-16 (1992), and Kupianen v. Graham, 107 Ill. App. 3d 373, 377, 437 N.E.2d 774 Page 4 of 6
(1st Dist. 1982). A proposed amendment must meet all four Loyola Academy factors; however, if [a] proposed amendment does not state a cognizable claim, and thus fails the first factor, courts of review will often not proceed with further analysis. Hayes Mechanical, Inc. v. First Induscircuit, L.P., 351 Ill. App. 3d 1, 7, 812 N.E.2d 419, 424 (1st Dist. 2004). The First District found the plaintiffs proposed second amended complaint insufficient because it still did not allege knowledge on the part of any principal of Advocate Hospital of the alleged acts of fraudulent concealment. Therefore, Plaintiffs allegations of negligence against Advocate Hospital do not meet the first Loyola Academy factor and the dismissal by the circuit court of these claims did not amount to an abuse of discretion. The court further rejected the plaintiffs new proposed causes of action against Advocate Hospital and Dr. Del Castillo based on fraud, noting that fraudulent concealment as set out in Section 13-215 does not establish an independent cause of action and an independent cause of action for fraudulent misrepresentation is subject to the statutes of limitations and repose in Section 13-212, which had expired. See 735 ILCS 5/13-212 (West 2004). Since the requirements for tolling the limitations period for an action for fraud against a hospital are the same as those for negligence, the plaintiffs failure to allege that any principal of the hospital was aware of the fraud prevents the application of Section 13-215. The final area addressed by the First District was the portion of the plaintiffs proposed second amended complaint that charged the defendants with fraudulent spoliation of evidence in furtherance of their fraudulent concealment. Specifically, the proposed amended complaint alleged that Dr. Del Castillo, individually or in concert with [Advocate Hospital] have fraudulently secreted [the consultation report], and that Advocate Hospital has intentionally secreted and/or destroyed Plaintiffs critical medical records. (Emphasis added.) The court stated that while it was unclear whether the plaintiffs were claiming negligent or intentional spoliation of evidence in the proposed second amended complaint, they could not state a new cause of action based on spoliation because they could not demonstrate that but for the spoliation by the defendants, the plaintiffs likely would have prevailed in the underlying suit, citing to Boyd v. Travelers Insurance Co., 166 Ill. 2d 188, 196, 652 N.E.2d 267, 271 (1995). The plaintiffs could not show such a likelihood, according the First District, because the document they alleged was destroyed by the defendants was provided to the plaintiffs prior to the initiation of the suit and was made part of the record on appeal, without its authenticity having been challenged. Further, the plaintiffs could not allege an intentional spoliation as the Illinois Supreme Court in Boyd declined to specifically recognize that cause of action as a tort in Illinois. Conclusion The First District s decision in the Cangemi case clarifies the relationship of Section 13-215 of the Illinois Code of Civil Procedure to the statutes of limitations and repose for a medical negligence claim, as found in Section 13-212. Indeed, the theory of tolling the statutes of limitations and repose for fraudulent concealment, as codified in Section 13-215, is not, according to the First District, a cause of action in and of itself. Therefore, separate counts in a complaint brought pursuant to Section 13-215 should be subject to a motion to dismiss. More importantly, when faced with a pleading that alleges fraudulent concealment pursuant to Section 13-215, the first issue to be evaluated is whether the plaintiff adequately pled the duty and breach elements of the underlying cause of action to which that exception would apply. The opinion in Cangemi also supports an argument that complaints are required to allege the duty allegedly owed by the defendant medical practitioner with more specificity. The First District clearly rejected the general statement of duty which had become boilerplate for most complaints filed. Demanding more specific allegations of duty in the complaint could lead to more detailed insight early in a case on the areas of negligence for each specific defendant involved. As a result, defense counsel Page 5 of 6
could be better prepared to defend the allegations of duty when they present their clients for depositions and engage in other discovery prior to the disclosure of expert witness opinions. This heightened requirement for specificity in pleading duty in the complaint is also more consistent with much of the case law regarding the specific requirements of reviewing physician s reports under 735 ILCS 5/2-622. Finally, the First District has reaffirmed that courts in Illinois will not to extend liability for the fraudulent concealment of an agent under Section 13-215 to an unknowing principal. Presumably, this includes claims based on both actual and apparent agency. The opinion does not specify whether a principal can be imputed with knowledge of fraudulent concealment due to the presence of information in the medical records or through information gained afterwards in a privileged communication. However, an argument can be made that knowledge of the fraudulent concealment at the time the affirmative action is taken by the agent is required, as that is the only time that the principal would be in privy with the agent. Endnote 1 This opinion has not been released for publication in the permanent law reports as of the date that this article was submitted. Due diligence requires confirmation that the opinion was published in the same form as when it was released on March 6, 2006 before relying on any information therein. ABOUT THE AUTHOR: Edward J. Aucoin, Jr. is an associate in the Chicago firm of Pretzel & Stouffer, Chartered. He has over nine years of experience in medical malpractice defense, commercial litigation, and contract litigation practice. Mr. Aucoin s substantial client base includes private hospitals and medical practice groups, physicians and other medical professionals, and national commercial corporations. He has extensive experience in preparing complex litigation for trial, and has second-chaired medical malpractice trials in Cook County and DuPage County. Mr. Aucoin received his B.A. from Loyola University of New Orleans and his J.D. from Loyola University of New Orleans School of Law. He is also a member of the IDC. Page 6 of 6