NO. 91-216
IN THE SUPREME COURT OF THE STATE OF MONTANA
1993
PATRICIA WISHER,
Plaintiff and Appellant,
and
WILSON A. HIGGS and
WILSON A. HIGGS, M.D., P.C.,
Defendants and Respondents.
APPEAL FROM: District Court of the Eleventh Judicial District,
In and for the County of Flathead,
The Honorable Leif B. Erickson, Judge presidhg.
COUNSEL OF RECORD:
For Appellant:
Craig Stephan, Attorney at Law (argued), Phoenix,
Arizona
Ann German, Attorney at Law, Libby, Montana
For Respondent:
I. James Heckathorn (argued) and Dana L.
Christensen; Murphy, Robinson, Heckahorn &
Phillips, Kalispell, Montana
Submitted: April 21, 1992
Decided: March 2, 1993
Filed:
,. - A
,==
Honorable Douglas G. Harkin, District Judge, delivered the Opinion
of the Court.
The plaintiff, Patricia Wisher, appeals from a jury verdict
rendered in a medical malpractice action tried in the Eleventh
Judicial District Court, Flathead County. The defendant, Dr.
Wilson Higgs, stipulated prior to trial that the preponderance of
medical testimony established that Ms. Wisher incurred an injury
during a surgery that he performed on November 14, 1979.
Specifically, Ms. Wisher sustained a dehiscence, or hole, in her
left inner ear following a left facial nerve decompression
procedure. Dr. Higgs also stipulated that the preponderance of
medical testimony established that the surgical result obtained was
below the standard of care. The District Court ruled that this was
negligence as a matter of law. Dr. Higgs presented a statute of
limitations defense to the action.
The sole issue submitted to the jury was whether the tolling
provisions of F, 27-2-205, MCA, were met. Through the use of a
special verdict form, the jury found by a preponderance of the
evidence that (1) prior to November 1, 1981, through the use of
reasonable diligence, Ms. Wisher should have discovered her injury,
and that her injury may have been caused by the surgery; and (2)
prior to November 1, 1981, Dr. Higgs's conduct did not prevent Ms.
Wisher from exercising due diligence in discovering her injury or
that her injury may have been caused by the surgery.
We affirm in part, and reverse and remand in part for a new
trial on the issue of damages.
We restate the dispositive issues as follows:
2
1. Whether there is substantial evidence, including expert
medical evidence, in the trial record to support the jury's finding
that Ms. Wisher, through the exercise of reasonable diligence,
should have discovered before November 1, 1981, (i) her injury, and
(ii) that her injury may have been caused by the surgery.
2. Whether there is substantial evidence, including expert
medical evidence, in the trial record to support the jury's finding
that Dr. Higgs's conduct did not prevent Ms. Wisher from exercising
due diligence in discovering her injury or that it may have been
caused by the surgery prior to November 1, 1981.
On September 3 , 1979, Patricia Wisher presented herself to the
emergency room at Kalispell Regional Hospital complaining of a
headache and paralysis on the left side of her face. She was
diagnosed with Bell's palsy, a disease process affecting the
seventh cranial nerve. Ms. Wisher initially sought follow-up care
from a Kalispell neurologist named Dr. Schimpff on September 5 ,
1979. After ruling out cranial pathology, Dr. Schimpff recommended
that she follow-up with Dr. Higgs, a Kalispell otolaryngologist.
Ms. Wisher was initially examined by Dr. Higgs on September 6,
1979. When her condition failed to improve with the use of
steroids and the passage of time, Dr. Higgs recommended that Ms.
Wisher undergo left facial nerve decompression surgery. This
surgery was performed at Kalispell Regional Hospital on November
14, 1979.
In the immediate post-operative period Ms. Wisher experienced
symptoms of pain, nausea, dizziness, loss of equilibrium, vomiting,
3
and buzzing in her left ear. Dr. Higgs attributed these symptoms
to the side effects of anesthesia and to a condition known as post-
operative labyrinthitis, an inflammatory process of the inner ear
canal which he attributed to the surgical procedure itself. Dr.
Higgs noted that this condition persisted in spite of the use of
labyrinthine suppressant drug therapy. He discharged Ms. Wisher
from the hospital on November 18, 1979.
When Ms. wisher returned to Dr. Higgs's office on November 30,
1979, for an exam, Dr. Higgs noted that the symptoms of post-
operative labyrinthitis remained at that time. He continued the
labyrinthine suppressant therapy and instructed her to follow-up in
two weeks. The exam on December 17, 1979, revealed that Ms.
Wisher's balance had improved; however, her hearing problem
remained unchanged. Dr. Higgs ordered her to continue the
labyrinthine suppressant therapy and to return to his office in two
months. She returned on February 22, 1980. Her condition remained
unchanged.
On February 28, 1980, Dr. Higgs wrote a letter to Dr. Schimpff
informing him that Ms. Wisher suffered from a post-operative
labyrinthitis; however, he stated that he expected her to
experience further improvement with the passage of time. MS.
Wisher returned to Dr. Higgs's office on March 6, 1980, for
complaints of facial pressure, sore throat, and sneezing; and on
June 2, 1980, for a left occipital neuralgia (headache). She did
not return to Dr. Higgs's office for the remainder of 1980, 1981,
or the first eight months of 1982. According to her testimony,
4
during this period of time she experienced some improvement in her
symptoms. This testimony is uncontradicted by the defense.
Thereafter, on September 20, 1982, Ms. Wisher returned to Dr.
Schimpff's office complaining of headaches, nausea, balance
dysfunction, and tinnitus. Dr. Schimpff scheduled her for a
posterior fossa CT scan to rule out the possibility of a cranial
tumor. When a tumor was ruled out, he referred her back to Dr.
Higgs for evaluation of continued tinnitus and decreased hearing in
the left ear. She returned to Dr. Higgs's office on September 24,
1982, with complaints of increased left ear pressure and tinnitus.
Dr. Higgs continued to treat her symptomatology as post-operative
labyrinthitis at that time.
In early January 1983, Ms. Wisher requested a referral from
Dr. Higgs for her continuing symptoms. Dr. Higgs referred Ms.
Wisher to Dr. J.V.D. Hough of Oklahoma City, Oklahoma. He wrote a
letter to Dr. Hough on January 6, 1983, which provided his
assessment of Ms. Wisher's ongoing problem:
Post operatively, [Ms. Wisher] developed what I felt was
an acute labyrinthitis, in as much I was not aware of any
fistula into the inner ear. Post operatively, she
experienced rather dramatic return of facial function,
and gradual improvement of her balance disturbance over
a period of a few weeks. She continued to have hearing
loss however, with a certain degree of tinnitus. . ..
In mid 1980 she developed left occipital neuralgia which
required medical therapy. She continued to improve with
the exception of her hearing and tinnitus during the
interval until she was seen this Fall.
[I]n September of 1982, [she gave a history of] having
heaviness in the right arm with decreased rapid
alternating movements noted on physical examination. She
was left with a mild synkinesis of the left side of the
face, no nystagmus, and the Weber on the forehead
5
lateralized to the right, indicating severe hearing loss
in the left [ear]. She further had left occipital nerve
tenderness. A CT head scan was then performed to exclude
other CNS pathology and this was essentially normal.
Ms. Wisher did not follow-up with Dr. Hough in Oklahoma, but
instead she saw physicians and chiropractors in Oregon and
California. The record reveals that Ms. Wisher suffered from
headaches, cervical spine pain, and TMJ pain prior to her surgery
in 1979. Her testimony revealed that she sought continued therapy
for these problems, and that she was unsure as to which medical
condition was causing her symptoms. Ms. Wisher's final office
visit with Dr. Higgs was on March 28, 1983, when she presented with
complaints that her jaw was clamping. Dr. Higgs noted that her
ears were okay. He provided a dental consultation.
Dr. Perjessy, a general practice dentist in Kalispell, began
treating Ms. Wisher on May 16, 1983. He referred Ms. Wisher to
both Dr. Windauer, a Kalispell orthodontist, and Dr. Bertz, an oral
and maxillofacial surgeon in Scottsdale, Arizona, who ultimately
performed multiple surgeries on both her left and right
temporomandibular joints. Dr. Bertz testified that he was unable
to distinguish whether the dizziness from which Ms. Wisher was
suffering was attributable to the surgery by Dr. Higgs or whether
it was symptomatic of her concurrent TMJ problems. He noted that
the inflammation process around the TMJ and the semicircular canals
of the inner ear were close in proximity and he could not rule out
which process was causing her dizziness.
Dr. Bertz consulted with several Scottsdale, Arizona,
physicians concerning Ms. Wisher's symptoms, including
6
neurologists, Dr. Goodell and Dr. Reese, and an otolaryngologist,
Dr. Weiss. Dr. Goodell initially suspected that Ms. Wisher
suffered from a progressive neurologic phenomena. However, after
ruling this out by CT scan, he was of the opinion that Ms. Wisher
suffered from residual hearing loss and facial weakness as a result
of a viral neurologic lesion (the Bell's palsy) she suffered four
years previously. In other words, he attributed the symptoms to
the underlying Bell's palsy pathology and not pathology associated
with injury to the inner ear during surgery. Dr. Weiss, the
consulting otolaryngologist, was unable to diagnose a dehiscence in
the inner ear.
Ms. Wisher saw another otolaryngologist named Dr. Nowak on
January 24, 1984. Dr. Nowak performed an audiogram which revealed
sensorineural deafness of a moderately severe degree in her left
ear. He informed both Ms. Wisher and Dr. Bertz at that time that
in his medical opinion this patient suffered from an injury to the
horizontal canal of her left inner ear. In his opinion Ms. Wisher
sustained this injury during facial nerve decompression surgery in
1979.
Ms. Wisher filed an Application for Review before the Medical
Legal Panel on November 1, 1984, eight months after learning of
this medical opinion. After the Medical Legal Panel heard the
matter and rendered its decision on March 1, 1985, Ms. Wisher filed
a complaint in District Court on March 29, 1985.
Dr. Nowak's medical opinion was not confirmed by diagnosis
until 1989. A scan performed on April 28, 1989, in Scottsdale
7
Arizona, and read by a radiologist by the name of Dr. Cook,
revealed that "the lateral semicircular canal appearred]
discontinuous in the axial plane." A repeat scan performed in
1990 at St. Joseph's Hospital and Medical Center, and read by Dr.
Bird, revealed a "dehiscence of the lateral portion of the left
lateral semicircular canal."
I
The first issue presented by Ms. Wisher is whether there is
substantial evidence, including expert medical evidence, in the
trial record to support the jury's finding that, through the use of
reasonable diligence, she should have, prior to November 1, 1981,
discovered (i) her injury, and (ii) that her injury may have been
caused by the surgery. The standard of review used by this Court
on an appeal based upon insufficient evidence is to determine
whether the evidence is "substantial" enough to support the
verdict. Guenther v. Finley (1989), 236 Mont. 422, 426, 769 P.2d
717, 720. Substantial evidence is relevant evidence which a
reasonable person could accept as adequate to support a conclusion.
Nicholson v. United Pacific Ins. Co. (1985), 219 Mont. 32, 42, 710
P.2d 1342, 1348-49. This Court recognizes that the jury is in the
best position to weigh the evidence and consider the credibility of
the witnesses, and, therefore, an examination of the sufficiency of
the evidence must be made in a light most favorable to the
prevailing party. Rock Springs Corp. v. Pierre (1980), 189 Mont.
137, 145-46, 615 P.2d 206, 211.
8
The substantive principles at issue in this case concern the
tolling provisions in the statute of limitations for medical
malpractice actions addressed in 5 27-2-205, MCA:
(1) [An] action in tort ... for injury .. . against a
physician or surgeon . . based upon alleged
professional negligence . . . or €or an act, error, or
omission, shall ... be commenced within 3 years after
the date of injury or 3 years after the plaintiff
discovers or through the use of reasonable diligence
should have discovered the injury, whichever occurs last,
but in no case may such action be commenced after 5 years
from the date of injury. However, this time limitation
shall be tolled for any period during which there has
been a failure to disclose any act, error, or omission
upon which such action is based and which is known to the
plaintiff or through the use of reasonable diligence
subsequent to said act, error, or omission would have
been known to him.
The District Court instructed the jury in the law regarding
this statute of limitations and its tolling provisions in Jury
Instruction No. 14:
A statute of the State of Montana provides that an action
against a physician or surgeon based upon alleged
professional negligence must be commenced within three
( 3 ) years after the date of injury, or three ( 3 ) years
after the Plaintiff discovers or, through the exercise of
reasonable diligence should have discovered the injury,
whichever occurs last.
For purposes of this action the Court has previously
determined that the Defendant injured Plaintiff on
November 14, 1979. The date that the Plaintiff actually
discovered her injury had been caused by the surgery is
January 24, 1984. The Plaintiff filed her action on
November 1, 1984.
In this case the date of injury is (1) the date Plaintiff
discovered or reasonably should have discovered her
injury, and (2) that her injury may have been caused by
the surgery. It is not necessary that Plaintiff be aware
of the full extent of her injury, the details thereof, or
the underlying cause. It is sufficient if Plaintiff
knows generally that she has suffered harm and that the
Defendant caused it.
9
Prior to providing the jury with this instruction, both parties
submitted point briefs to the District Court addressing the statute
of limitations issue in medical malpractice discovery cases. Dr.
Higgs contends that the District Court appropriately applied the
law in Major v. North Valley Hosp. (1988), 233 Mont. 25, 759 P.2d
153, in formulating the instruction given.
On appeal, Ms. Wisher argues that the court incorrectly
instructed the jury on the law, in that the statute of limitations
is tolled until a plaintiff discovers the legal cause of an injury.
Hando v. PPG Industries, Inc. (1989), 236 Mont. 493, 501, 771 P.2d
956, 962. Ms. Wisher argues that there was a lack of evidence at
trial to support a finding by the jury that through the use of
reasonable diligence she should have discovered the leqal cause of
her injury prior to November 1, 1981.
Dr. Higgs argues that there was substantial evidence presented
during trial that Ms. Wisher discovered her injury immediately
following surgery on November 14, 1979, when she awoke with
symptoms inconsistent with her pre-surgical state, and that she
knew the symptoms constituted the injury which was caused by the
surgery. Dr. Higgs argues that because Ms. Wisher knew the legal
cause of her injury on the day of surgery, and because the statute
of limitation in a medical malpractice claim is not tolled until a
plaintiff discovers a legal right to bring an action for known
injuries, Ms. Wisher's claim fails on the grounds that the statute
of limitations has run.
10
The statute of limitations in any given case generally begins
to run upon the occurrence of the last wrongful act relevant to the
cause of action. The statute of limitations is not tolled until a
plaintiff discovers her legal right to bring an action for known
injuries. Maior, 759 P.2d at 157; E.W. v. D.C.H. (1988), 231 Mont.
481, 487, 754 P.2d 817, 820. Nor is the statute tolled until a
plaintiff learns the facts out of which a known cause of action
arose. Bennett v. Dow Chemical Co. (1986), 220 Mont. 117, 121, 713
P.2d 992, 994. However, the application of those general rules
becomes difficult where an injured person is prevented from knowing
of his injury by concealment or other circumstances. Bennett, 713
P.2d at 995. In such cases, this Court has recognized certain
exceptions which toll the statute of limitations until the injury
is discovered. Those exceptions include factual situations where
a negligent act is concealed, Monroe v. Harper (1974), 164 Mont.
23, 28, 518 P.2d 788, 790; and where the plaintiff has sustained an
injury which by its nature is self-concealing. Johnson v. St.
Patrick's Hospital (1966), 148 Mont. 125, 417 P.2d 469, aff'd after
remand, 152 Mont. 300, 448 P.2d 729; Grey v. Silver Bow County
(1967), 149 Mont. 213, 425 P.2d 819.
The facts in the present case are clearly distinguishable from
those found in either Maior or E.W. in that the wrongful act in
both of those cases was easily identifiable and the injury
simultaneous and obvious. In contrast, the present case involves
an alleged negligent act which by its nature manifests an injury
that is self-concealing. The uncontradicted evidence reveals that
11
Ms. Wisher did not have knowledge on the day of her surgery that
her post-operative symptoms were caused by negligence on Dr.
Higgs's part. On the contrary, the symptoms experienced by Ms.
Wisher in the post-operative period were attributedto the surgical
complication referred to as post-operative labyrinthitis, a
condition that would resolve with the passage of time. Although
Ms. Wisher perceived the symptoms, the knowledge that those
symptoms were causally connected to negligent acts on Dr. Higgs's
part was absent. As stated, this Court recognizes that self-
concealing injuries of this type can preclude a strict application
of the statutory bar.
Ms. Wisher urges this Court to adopt the holding from Hando,
7 7 1 P.2d at 962, as controlling in this case. Hando is this
Court's most recent opinion interpreting the discovery rule as it
applies to the statute of limitations in 5 27- 2- 204, MCA. In
Hando, the plaintiff immediately suspected that the symptoms she
experienced after inhalation of paint fumes in 1981 constituted an
injury, and she began to diligently pursue an opinion from multiple
medical experts; however, she was not provided with a definitive
diagnosis until 1984. She filed an action in October of 1985. The
district court denied the defendant's motion for summary judgment
on the statute of limitations issue, holding that the statute of
limitations was tolled until a medical diagnosis confirmed the
causal connection between Hando I s "ailments" or "symptoms" and her
alleged injury. On appeal, this Court affirmed the district court
on that issue. Hando, 771 P.2d at 962. Although the facts in
Hando are distinguishable from the facts in the present case, the
subtle similarity between the cases is apparent by the self-
concealing nature of the injury.
Self-concealing injuries present unique roadblocks to a
litigant's discovery of an injury. Prior to the enactment of 5 27-
2-205, MCA, in 1971, this Court applied the discovery doctrine in
medical malpractice cases involving self-concealed injuries. In
Johnson, a medical malpractice case in which a physician left a
surgical sponge in a patient's hip, this Court held:
Where a foreign object is negligently left in a patient's
body by a surgeon and the patient is in ignorance of the
fact, and consequently of his right of action for
malpractice, the cause of action does not accrue until
the patient learns of, or in the exercise of reasonable
care and diligence should have learned of the presence of
the foreign object in his body. [Citation omitted.]
Johnson, 417 P.2d at 473. The Court viewed the date of discovery
as the date on which the plaintiff obtained actual knowledge of the
cause of the drainage from his hip. The drainage from the hip was
the symptom of the injury, and not the injury itself. The striking
similarity between the Johnson case and the present case is the
plaintiffs' lack of awareness of the causal relationship between
the injuries and the symptoms.
The second case applying the discovery doctrine to a self-
concealing injury involved a plaintiff who underwent surgery on his
leg at Silver Bow Hospital in Butte, Montana, on August 23, 1961.
Grey, 425 P.2d at 819. On October 18, 1961, the plaintiff sought
medical treatment from a Phillipsburg physician. When the
physician cut a hole in the plaintiff's cast revealing the
13
incisional site, he discovered a staph infection. The plaintiff
subsequently filed a medical malpractice claim on October 19, 1964,
claiming failure to use proper sterile technique during the
surgical procedure. The district court granted the defendant's
motion for summary judgment on the grounds that the plaintiff had
not filed within the statute of limitations. This Court reversed,
and in analogizing Johnson held:
[Tlhere is a distinct factual difference between leaving
a sponge in a patient's body by a surgeon and introducing
infection into a patient's body due to a hospital's
failure to employ proper sterile techniques during an
operation. [However] .. . this distinction fails to
recognize the real similarity between the two acts. The
similarity is the fact that the patient does not know of
his own condition--be it introducing the infection or
leaving the sponge ...
Grey, 425 P.2d at 820. In Grey, we announced the equitable
limitation of the discovery rule of giving full scope to the
statute of limitations on the one hand, and according a reasonable
measure of justice to the plaintiff on the other. Grey, 425 P.2d
at 821. In balancing those opposing interests, this Court has
consistently tolled the statute of limitations in self-concealing
injury cases until the plaintiff discovers, or in the exercise of
reasonable care and diligence should have discovered, his or her
injuries. Our decision in Hando reflects this need to accord
justice to a plaintiff who, even though exercising due diligence,
is unable to find a causal connection between symptoms and injury.
In the present case, there is a complete lack of evidence in the
record to establish that Ms. Wisher causally connected the injury,
or the dehiscence in her left inner ear, to her symptoms of hearing
14
loss, dizziness, vertigo, and loss of balance. This is
particularly evident within the immediate eighteen-month period of
time post-operatively.
However, as stated, the District Court's instruction to the
jury in applying the tolling provisions in this case provided:
[I]t is not necessary that Plaintiff be aware of the full
extent of her injury, the details thereof, or the
underlying cause. It is sufficient if Plaintiff knows
generally that she has suffered harm and that the
Defendant caused it.
At the close of evidence, the parties submitted proposed jury
instructions on the law of the case. The court refused Ms.
Wisher's proposed instruction which addressed the tolling
provisions of g 27-2-205, MCA. However, Ms. Wisher did not
specifically object to Jury Instruction No. 14. Generally, a
failure to object to a jury instruction at the trial level amounts
to a waiver of the right to raise the objection on appeal. State
v. Holzapfel (1988), 230 Mont. 105, 113, 748 P.2d 953, 957. The
instruction which is given without objection becomes the law of the
case. Nicholson, 710 P.2d at 1356.
In addition, Ms. Wisher failed to raise the issue of the
propriety of the special verdict form by objection at the time of
its presentation to counsel. On appellate review, where no
objection is raised to the special verdict form before its
submission to the jury, the Court will not review the sufficiency
of the form for the first time on appeal. Weinberg v. Farmers
State Bank of Worden (1988), 231 Mont. 10, 19, 752 P.2d 719, 724.
Based on the foregoing, this Court must examine the sufficiency of
15
evidence in view of the law of the case as provided to the jury.
Having done that, this Court holds there is a total lack of
evidence to support the verdict that Ms. Wisher knew generally that
she suffered an injury prior to November 1, 1981, or that Dr. Higgs
caused it.
Prior to November 1, 1981, Ms. Wisher knew she suffered from
Bell's palsy, post-operative labyrinthitis, chronic headaches,
cervical spine pain, and symptoms associated with a
temporomandibular joint dysfunction. This is supported by the
evidence in the medical record exhibits and testimony of Dr.
Wilson, Dr. Higgs, the medical record exhibits of Kalispell
Regional Hospital, and the testimony of Ms. Wisher. There is a
lack of evidence that she knew or suspected that she suffered from
an injury as the result of her surgery, or that through the use of
due diligence she could have determined the cause of the multitude
of ongoing symptoms which she was experiencing. This is
particularly evident in light of Ms. Wisher's uncontradicted
testimony that she experienced an improvement in her symptoms
beginning the last half of 1980 up through the first eight months
of 1982. Ms. Wisher did not see Dr. Higgs during this period of
time. In fact, there was no evidence submitted by the defense that
she saw other doctors for those symptoms during that period of
time.
We hold that there is a lack of substantial evidence,
including expert medical evidence, in the trial record to support
the jury's finding that Ms. Wisher, through the exercise of
16
reasonable diligence, should have discovered before November 1,
1981, (i) her injury, and (ii) that her injury may have been caused
by the surgery.
The second issue presented by Ms. Wisher is whether there is
substantial evidence, including expert medical evidence, in the
trial record to support the jury's finding that Dr. Higgs's conduct
did not prevent her from exercising due diligence in discovering
her injury or that it may have been caused by the surgery prior to
November 1, 1981.
The District Court's instruction to the jury in applying the
tolling provision under the concealment doctrine provided:
[I]n those cases wherein Plaintiff has been prevented
from knowing of her injury by concealment or other
circumstances, certain exceptions exist. The Montana
statute . . . provides that in such cases the time
limitation shall be extended for any period for which the
Defendant has failed to disclose any act, error or
omission upon which such action is based and which is
known to him or through the use of reasonable diligence
subsequent to said act, error or omission would have been
known to him.
To suspend the operation of the statute of limitations
the concealment must be of such a character as to prevent
inquiry, escape investigation, or mislead or hinder
acquisition of information disclosing a right of action.
Ms. Wisher argues that the uncontradicted evidence established that
Dr. Higgs concealed material facts about her health care that bore
directly upon the existence of the cause of action. Specifically,
Dr. Higgs failed to disclose to her his awareness that her symptoms
may have been the result of an injury sustained during surgery, and
he failed to disclose to her the knowledge that she experienced a
17
sensorineural hearing loss post-operatively. Ms. Wisher cites case
law from other jurisdictions which recognize a relationship of
trust and confidence between a physician and a patient which rises
to the level of a fiduciary relationship, and which she argues
required Dr. Higgs to fully disclose facts regarding her health
care. Hoopes v. Hammargren (Nev. 1986), 7 2 5 P.2d 238; Duquette v.
Superior Court (Ariz. App. 1989), 778 P.2d 634; Estate of Leach v.
Shapiro (Ohio App. 1984), 469 N.E.2d 1047; and Peralta v. Martinez
(N.M. 1977), 564 P.2d 194, cert. denied, 567 P.2d 485.
Dr. Higgs argues that because he no longer was treating Ms.
Wisher, nor did he try to prevent her from receiving separate
medical opinions, there is a lack of evidence to suggest that he
fraudulently concealed the injury. In order to have concealed the
injury there must be substantial evidence of concealment between
the date of surgery on November 14, 1979, and November 1, 1981.
Following six months of follow-up, Ms. Wisher discontinued office
visits to Dr. Higgs until September of 1982. Dr. Higgs did not
treat Ms. Wisher from June 2, 1980, through November 1, 1981. Dr.
Higgs denied knowledge of surgical injury to Ms. Wisher's inner ear
until he was shown the results of a CT X-ray during his deposition
in 1989.
The leading Montana case addressing the issue of fraudulent
concealment in a medical malpractice case is Monroe v. Harper
(1974), 164 Mont. 23, 518 P.2d 788. Although this Court found the
doctrine of fraudulent concealment inapplicable given the facts of
the case, Monroe addresses circumstances in which an injured person
18
is prevented from knowing of his injury due to concealment of facts
by a treating physician, or a situation where the injury, by its
nature, is difficult to discover until a later date.
[Mlost courts give recognition to certain implied
exceptions which toll the running of the statute when it
can be shown that fraud had been perpetrated upon the
injured party sufficient to place him in ignorance of his
right to a cause of action or to prevent him from
discovering his injury. [Citation omitted.] The purpose
is to promote equity and justice of the individual case
by preventing a party from asserting his rights under a
general technical rule of law when he has so conducted
himself that it would be contrary to equity and good
conscience to avail himself of his legal defense.
[Citation omitted.]
. . .
To toll the statute of limitations the fraud must be of
such a character as to prevent inquiry, elude
investigation, or to mislead the party who claims tbe
cause of action. [Citation omitted.] There must first be
injury and then concealment. It is the cause of action
which must be fraudulently concealed by failing to
disclose the fact of injury from malpractice, by
diverting the patient from discovering the malpractice
that is the basis of the action. [Citation omitted.]
Monroe, 518 P.2d at 790.
The language of 5 27-2-205, MCA, however, indicates that
simply the failure to disclose facts, as opposed to affirmative,
fraudulent concealment, is sufficient to toll the statute:
[Tlhis time limitation shall be tolled for any period
during which there has been a failure to disclose any
act, error, or omission upon which such action is based
and which is known to the plaintiff or through the use of
reasonable diligence subsequent to said act, error, or
omission would have been known to him.
The evidence presented as to the concealment issue in this case is
conflicting and ultimately rests upon the credibility and weight to
be afforded each witness's testimony. A s stated, the standard of
19
review employed by the supreme Court on an appeal alleging
insufficiency of evidence is to determine whether the evidence is
"substantial" enough to support the verdict. Guenther v. Finley
(1989), 236 Mont. 422, 426, 769 P.2d 717, 720. The evidence may be
inherently weak and still be considered substantial. Wheeler v.
City of Bozeman (1988), 232 Mont. 433, 437, 757 P.2d 345, 347. In
addition, when conflicting evidence exists, the credibility and
weight to be given to the conflicting evidence is within the
province of the jury. Wheeler, 757 P.2d at 347. Because the
evidence presented on this issue furnishes reasonable grounds for
different conclusions, the findings of the jury will not be
disturbed. Rock Springs Corp. v. Pierre (1980), 189 Mont. 137,
146, 615 P.2d 206, 211.
Based upon the foregoing, we hold that there was substantial
evidence to support the jury's finding that Dr. Higgs's conduct did
not prevent Ms. Wisher from exercising due diligence in discovering
her injury or that it may have been caused by the surgery prior to
November 1, 1981.
Affirmed in part, reversed in part, and remanded in part for
a new trial on the issue of damages.
,
...*,
District Judge, sittinq in place
of Justice Terry N. Trieweiier
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We c o n c u r :
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