Deanna Roberts v. Darryl Francis

United States Court of Appeals
FOR THE EIGHTH CIRCUIT

No. 97-1434

Deanna Slagle Roberts, *
*
Appellant, *
* Appeal from the United
States
v. * District Court for the
* Western District of
Arkansas.
Darryl Francis, M.D.; St. Edward
*
Mercy Medical Center, *
*
Appellees. *

Submitted: September 9, 1997

Filed: October 20, 1997

Before RICHARD S. ARNOLD, Chief Judge, and FLOYD R.
GIBSON and HEANEY, Circuit Judges.

HEANEY, Circuit Judge.

This medical malpractice case comes to us from the
district court’s order granting summary judgment for the
appellees. Under the applicable statute of limitations,
the medical malpractice claim was time barred.
Appellant, Deanna Slagle Roberts, advanced two theories
under which the statute should be tolled: continuous
treatment and fraudulent concealment. The district court
granted summary judgment as to both theories. We affirm
the district court’s grant of summary judgment on the
continuous treatment claim and reverse and remand for
trial on the fraudulent concealment claim. We also
remand for further consideration on the issue of St.
Edward Mercy Medical Center’s potential liability to
appellant.

I.

In reviewing the district court’s grant of summary
judgment, we view the facts in a light most favorable to
Roberts, the nonmoving party. In late May 1990,
appellant had surgery for severe urological problems. As
part of her surgery, Dr. Darryl Francis, one of the two
named defendants/appellees in this action, removed
appellant’s bladder. For reasons not explained in the
record, Dr. Francis also removed Roberts’ only remaining
ovary. Roberts did not learn that her only remaining
ovary had been removed until approximately September 1994
when she was treated by a different Dallas, Texas
physician for continuing urological problems. Roberts
also remained under the care of Dr. Francis until
February 1996.

Roberts, an Oklahoma domiciliary, filed this
diversity lawsuit in the United States District Court for
the Eastern District of Oklahoma in June 1996 against Dr.
Francis and the other named defendant/appellee, St.
Edward Mercy Medical Center, the medical center where
Roberts had her May 1990 surgery. Both of the named
defendants were based in Arkansas. Pursuant to
defendants’ motion, the case was transferred to the
United States District Court for the Western District of

2
Arkansas because of improper venue and the “interests of
justice.”

On February 4, 1997, the district court granted
summary judgment in favor of defendants.1 This appeal
followed. Roberts raises three issues on appeal: first,
whether

1
Defendants initially filed a motion to dismiss and later filed a joint motion to
dismiss plaintiff’s amended complaint. The district court converted these motions and
plaintiff’s responses into a summary judgment motion.
3
the statute of limitations is tolled because Dr. Francis
fraudulently concealed the removal of her ovary; second,
whether the statute is tolled under a continuous
treatment theory; and finally, whether St. Edward Mercy
Medical Center may be liable to her under respondeat
superior principles.
II.

We first address appellant’s fraudulent concealment
claim. Arkansas requires that medical malpractice
actions be filed within two years of the alleged wrongful
act: “[A]ll actions for medical injury shall be
commenced within two (2) years after the cause of action
accrues. . . . The date of the accrual of the cause of
action shall be the date of the wrongful act complained
of and no other time.” Ark. Code Ann. § 16-114-203(a),
(b) (Michie 1995 Supp.).

Under Arkansas law, fraudulent concealment of one’s
medical malpractice tolls the relevant statute of
limitations. Treat v. Kreutzer, 720 S.W.2d 716, 717
(Ark. 1986) (“[A] complaint alleging facts showing a
fraudulent concealment of medical injury is sufficient
despite the fact that it was filed more than two years
after the alleged injury occurred because fraudulent
concealment tolls the statute of limitations”) (citation
omitted); Jones v. Central Ark. Radiation Therapy, 607
S.W.2d 334, 335 (Ark. 1980) (“[F]raudulent concealment of
one’s malpractice will toll the running of the statute of
limitation”) (citation omitted); Crossett Health Ctr. v.
Croswell, 256 S.W.2d 548, 549 (Ark. 1953) (“[F]raudulent
concealment will toll the statute. . . .”) (citation
omitted).

4
 In this case, we find that Dr. Francis’ fraudulent
concealment of his alleged medical malpractice tolls the
statute of limitations. It is undisputed that Dr.
Francis removed appellant’s only remaining ovary and
failed to disclose this information to her. See Howard
v. Northwest Ark. Surgical Clinic, P.A., 921 S.W.2d 596,
599 (Ark. 1996) (a physician’s knowledge of the alleged
wrong is a necessary prerequisite to tolling the statute)
(citations omitted). In Union National Bank of Little
Rock v. Farmers Bank,

5
Hamburg Arkansas, 786 F.2d 881 (8th Cir. 1986), we stated:
“Under Arkansas law, a party may have an obligation to
speak rather than remain silent, when a failure to speak
is the equivalent of fraudulent concealment.” Id. at 887
(citing Berkley Pump Co. v. Reed-Joseph Land Co., 653
S.W.2d 128 (Ark. 1983)). With respect to when a duty to
speak arises, the Arkansas Supreme Court has stated,
“[t]he duty of disclosure . . . arises where one person is
in [a] position to have and to exercise influence over
another who reposes confidence in him whether a fiduciary
relationship in the strict sense of the term exists
between them or not.” Hanson Motor Co. v. Young, 265
S.W.2d 501, 504 (Ark. 1954) (citation omitted).

In this case, “the alleged act of concealment is part
and parcel of the wrongful act complained of,” Howard, 921
S.W.2d at 600, and until a physician complies with
his/her duty of disclosure or the patient independently
discovers the alleged wrong, it continues for purposes of
tolling the statute of limitations. Id. In interpreting
Arkansas law, therefore, we can think of no clearer case
where failure to disclose rises to the level of fraudulent
concealment. Roberts was not informed before the surgery
that it might be necessary to remove her ovary nor was she
informed after the surgery that her ovary had been
removed. Before she was informed in September 1994,
Roberts had no way of knowing that her ovary had
previously been removed. Given the special nature of the
doctor-patient relationship, we hold that Dr. Francis was
under a duty to inform Roberts that he removed her only
remaining ovary.

6
 Appellees rely heavily on Norris v. Bakker, 899 S.W.2d
70 (Ark. 1995), in arguing that Dr. Francis did not have
an affirmative duty to inform Roberts that he removed her
ovary. Bakker is easily distinguishable. In Bakker, a
patient alleged that her dentist improperly examined her
breasts while supposedly conducting a lymph node
examination. The dentist denied touching his patient and
pled the statute of limitations. While the patient knew
of the touching, she argued that the dentist had an
affirmative duty to disclose his improper conduct and that
the statute of limitations should have been tolled until
the disclosure was made. The court stated that “‘[n]o
mere ignorance

7
on the part of plaintiff of his rights, nor the mere
silence of one who is under no obligation to speak, will
prevent the statute bar.’” Id. at 72 (quoting Wilson v.
General Elec. Capital Auto Lease, 841 S.W.2d 619, 620
(Ark. 1992)).

Unlike the patient in Bakker, Roberts was not simply
ignorant of her rights. She was entirely unaware of the
alleged wrongful conduct. In fact, she did not learn
until September 1994, four years after her initial
surgery, that Dr. Francis had removed her only remaining
ovary. Thus, in a case where the plaintiff has full
knowledge of the alleged wrong, a physician under
Arkansas law may have no duty of disclosure.2 In a case
such as this, however, where the physician maintains
primary control over the relevant information and the
plaintiff is unaware of the alleged wrong, the physician
has an affirmative duty of disclosure.3

2
In this regard, Roberts experienced great pain after her initial May 1990 surgery.
She knew, however, that her bladder had been removed. She alleges that Dr. Francis
should have advised her of less drastic measures than removing her bladder,
particularly where he did so while she was awake but anesthetized. Nevertheless,
Roberts possessed this information and could have sued within two years after the May
1990 surgery.
3
In granting summary judgment, the district court found, and the parties did not
dispute, that Roberts initially learned in September 1994 that her ovary was removed
by Dr. Francis during her May 1990 surgery. At oral argument, however, attorney for
appellees raised the issue of when Roberts initially discovered that her ovary had been
removed. Because it was raised by appellees for the first time at oral argument, we
decline to consider this issue on appeal. See Ryder v. Morris, 752 F.2d 327, 332 (8th
Cir. 1985) (“As a general rule, a federal appellate court does not consider issues not
raised below. . . .”).
8
 III.

In considering whether to grant summary judgment, a
court examines all the “pleadings, depositions, answers
to interrogatories . . . admissions on file . . . [and]

9
affidavits.” Fed. R. Civ. P. 56(c). After the record is
viewed in a light most favorable to the nonmoving party,
summary judgment is appropriate only where there is “no
genuine issue of material fact and . . . the moving party
is entitled to judgment as a matter of law.” Langley v.
Allstate Ins. Co., 995 F.2d 841, 844 (8th Cir. 1993)
(citation omitted). We review a district court’s grant
of summary judgment de novo. United States ex. rel.
Glass v. Medtronic, Inc., 957 F.2d 605, 607 (1992).

When a federal court hears a diversity case, although
the court applies the applicable state substantive law,
the Federal Rules of Civil Procedure generally govern.
Hanna v. Plumer, 380 U.S. 460, 465 (1965) (where there is
no conflict with state procedure, Federal Rules of Civil
Procedure clearly govern). Therefore, we must determine
whether Roberts sufficiently pleaded fraud with
particularity under Rule (9)(b) of the Federal Rules of
Civil Procedure (Rule 9(b)), thereby entitling her to a
trial on the merits.

The district court, without reaching the merits of
Roberts’ fraudulent concealment claim, granted appellees’
motion for summary judgment. In the district court’s
view, plaintiff did not plead fraud with particularity.
Roberts v. Francis, No. 96-2185, slip op. at 11-12 (W.D.
Ark. Feb. 4, 1997). In viewing the evidence in a light
most favorable to Roberts, we believe that there is a
genuine issue of material fact and summary judgment was
improperly granted.

Under Rule 9(b), “[i]n all averments of fraud . . .
the circumstances constituting fraud . . . shall be

10
stated with particularity.” Fed. R. Civ. P. 9(b). When
pleading fraud, a plaintiff cannot simply make conclusory
allegations. Commercial Prop. Invs., Inc. v. Quality
Inns Int’l, 61 F.3d 639, 644 (8th Cir. 1995). In
Commercial Property Investments, Inc., we listed several
factors a court should examine in determining whether the
“circumstances” constituting fraud are stated with
particularity under Rule 9(b). Id. at 644. These
“circumstances” include the time, place, and contents of
the

11
alleged fraud; the identity of the person allegedly
committing fraud; and what was given up or obtained by
the alleged fraud. Id. (citation omitted).

In reviewing Roberts’ amended complaint, her
affidavit, and her new physician’s affidavit, we find
that they are sufficient under Rule 9(b)’s pleading
requirements:
1) in her complaint, Roberts sufficiently pleaded the
time period -- namely, that she learned around September
1994 that her only remaining ovary was removed; 2) in her
affidavit, the place of the fraud is sufficiently
described as St. Edward’s Hospital in Fort Smith,
Arkansas; 3) although there were no verbal “contents” of
false misrepresentation, Dr. Francis had a duty of
disclosure and Roberts sufficiently pleaded that she did
not learn of the fraud until more than four years after
her initial surgery;
4) Roberts sufficiently identified Dr. Francis as the
individual committing the fraud; and 5) Roberts states in
her complaint and supporting papers that she has endured
great pain since her initial surgery, having had
approximately forty surgeries since 1990 as a result of
Dr. Francis’ treatment.4 Appellant, therefore, has also
sufficiently argued what she has “given up” as a result
of the alleged fraud.5
IV.

4
We do not determine what degree of harm plaintiff suffered due to removal of
her ovary. This is an issue for a jury to determine on remand.
5
We do not hold that a plaintiff must show all of these factors under Rule 9(b)
to plead fraud with sufficient particularity. A plaintiff must state enough so that his/her
pleadings are not merely conclusory.
12
 Roberts also alleges that Dr. Francis is liable for
medical malpractice under a continuous treatment theory.
Continuous treatment, like fraudulent concealment,
operates to toll Arkansas’ two-year medical malpractice
statute of limitations. Lane v. Lane, 752 S.W.2d 25, 26-
27 (Ark. 1988). Where, however, a patient is able to
identify the specific negligent treatment that caused
his/her injury, the continuous

13
treatment doctrine does not toll the statute of
limitations. Id. at 28; see also Hobbs v. Naples, 993
F.2d 173, 174-75 (8th Cir. 1993). In this case, we agree
with the district court’s holding that the continuous
treatment doctrine is inapplicable:

It is well settled that where a single,
isolated act constitutes the alleged act of
medical malpractice, the “continuous treatment”
doctrine does not apply. A careful reading of
Arkansas law indicates that the recognized
exception is limited to those situations wherein
a plaintiff cannot identify one treatment that
produced his injury but where his injury was the
result of several treatments -- a “cumulative
effect.” The evidence here shows that plaintiff
was aware of the negligent act -- the surgery --
which caused her injury. . . . [T]he
“continuous treatment” doctrine is inapplicable
and does not extend the limitations period.

Roberts v. Francis, No. 96-2185, slip op. at 10-11 (W.D.
Ark. Feb 4, 1997) (internal citation omitted).

V.

Finally, we address whether St. Edward Mercy Medical
Center may be liable for Dr. Francis’ fraudulent
concealment under respondeat superior principles. While
this is an issue for remand, we mention some guiding
principles for the district court to consider.

Arkansas is one of the few American jurisdictions
that still recognizes charitable immunity for hospitals.
See H. Ward Classen, Hospital Liability for Independent
Contractors: Where Do We Go From Here?, 40 Ark. L. Rev.

14
469, 470-71 n.3 (1987). Notwithstanding, the Arkansas
Supreme Court has given the term “charitable immunity” a
“rather narrow construction.” Williams v. Jefferson
Hosp. Ass’n, 442 S.W.2d 243, 244 (Ark. 1969). In
applying Arkansas law, a reviewing court must determine
whether a given hospital qualifies for charitable
immunity, a threshold question before the court is able
to determine whether a hospital is liable under

15
respondeat superior principles. Recently, the Arkansas
Supreme Court cited with approval specific factors the
Arkansas Court of Appeals applies when determining whether
an individual hospital is wholly operated and maintained
for charity:

(1) Do the articles of incorporation provide that
the purpose of the hospital is charitable in
nature?
(2) Is the corporation maintained for the private
gain, profit or advantage of its organizers,
officers or owners whether directly or
indirectly?
(3) Does the hospital have capital stock or does
it have provisions for distributing dividends or
making a profit?
(4) Does the hospital derive its
funds from public and private charity as well as
those who are able to pay?
(5) Do all “profits” go toward maintaining the
hospital and extending and enlarging its charity?
(6) Is the hospital open to all who are not
pecuniarily able? (7) Are
those patients who are unable to pay received
into the hospital without charge, without
discrimination on account of race, creed or color
and are they given the same care as those who are
able to pay?
(8) Is the hospital exempt from the payment of
both state and federal taxes?

Masterson v. Stambuck, 902 S.W.2d 803, 809-10 n.2 (Ark.
1995) (quoting Marion Hosp. Ass’n v. Lanphier, 688 S.W.2d
322, 324 (Ark. App. 1985)).

With this background in mind, the district court
should analyze the above-mentioned factors, after both
parties have submitted evidence, in determining whether
St. Edward Mercy Medical Center qualifies for charitable

16
immunity. It should be noted that the list of factors is
“‘illustrative, not exhaustive, and no one factor is
dispositive.’” Masterson, 902 S.W.2d at 810 (quoting
Davidson v. Colonial Williamsburg Found., 817 F. Supp.
611, 614 (E.D. Va. 1993)). Assuming that the medical
center does not qualify for charitable immunity, regular
principles governing the doctrine of respondeat

17
superior should be applied in determining whether the
medical center is liable to Roberts.6

VI.

Consistent with this opinion, the judgment of the
district court is reversed on Roberts’ fraudulent
concealment claim and remanded for trial; affirmed on her
continuous treatment claim; and remanded for further
consideration to determine the liability, if any, of St.
Edward Mercy Medical Center.

A true copy.

Attest.

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.

6
Because the record is not adequately developed as to the factors to be
considered in determining charitable immunity or respondeat superior liability, we
reserve opinion on these issues.
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