Missing the statute of limitations in a medical malpractice lawsuit will bar your claim with few exceptions. Fraudulent concealment is one of those exceptions.
What is Fraudulent Concealment?
Fraudulent concealment is the concealment of wrongdoing or negligence by a defendant so that a victim of wrongdoing or negligence misses the statute of limitations. Medical malpractice is an area where fraudulent concealment is more commonly found. Fraudulent concealment in the case of medical malpractice occurs when the medical provider (doctor, hospital, clinic…) prevents the patient from learning of the medical negligence and/or the injuries resulting from the medical negligence.
Fraudulent Concealment of Failure to Diagnose
There are as many forms of fraudulent concealment as there are fraudsters willing to lie to their patients to avoid responsibility for their negligence or incompetence. However, failure to diagnose an illness or injury is the most common.
In the case of fraudulent concealment of a failure to diagnose, a medical provider hides test results after the fact. The situation is most likely to occur in cases such as undiagnosed cancer or other slow-moving disease. In other words, the disease must move slowly enough that the patient is unaware and has no reason to be aware of the illness until the statute of limitations has passed.
A good example of this would be a missed cancer diagnosis where early radiology or other diagnostic testing indicated the presence of cancer. The patient is completely unaware of the cancer until symptoms begin to arise. Once symptoms begin to show, the patient returns to the medical provider. Unfortunately, at this point it may be too late to effectively treat the cancer. Recognizing the mistake, the medical provider then conceals the prior diagnostic studies from the patient in the hopes that the patient will not learn of the mistakes until the statute of limitations has run. All the while, the cancer continues to progress.
Statute of Limitations Tolled for Fraudulent Concealment
Due to the obvious injustice of allowing a defendant such as a medical provider to avoid responsibility for medical malpractice by fraud and deceit, the statute of limitations is tolled until such time that the patient learns of the medical malpractice. This means that the statute of limitations does not begin to run until the patient learns of the malpractice.
In short, the patient will have 2 years for governmental medical providers and 3 years for private medical providers from the date of discovery of the negligence to file suit.
Discovery Rule v. Fraudulent Concealment
The medical malpractice “discovery rule” in New Mexico accomplishes much the same purpose as the doctrine of fraudulent concealment. The discovery rule states that the statute of limitations does not begin to run until the patient knew or should have known of the medical malpractice. One might ask then why is the doctrine of fraudulent concealment even necessary?
The rule of fraudulent concealment is necessary because of the ridiculously misguided New Mexico Medical Malpractice Act. Under the Medical Malpractice Act, medial providers are provided many protections including protection from the discovery rule by simple virtue of enlisting in an approved medical malpractice insurance plan which then qualifies them as “qualified healthcare provider”. The name “qualified healthcare provider” means simply that the provider has the required insurance. It most certainly does not suggest competence.
In short, so-called qualified healthcare providers escape responsibility for their negligence when the patient does not learn of the negligence until after the 3-year statute of limitations. Again, this situation most commonly occurs with a failure to diagnose cancer but can occur with other slow progressing diseases as well. Unfortunately, there is nothing that can be done in a case of late discovery of the negligence of a qualified healthcare provider unless the medical provider fraudulently concealed the errors.
Fraudulent Concealment Doctrine Does Not Apply When Negligence Discovered Prior to Statute of Limitations
In order to get the benefit of the doctrine of fraudulent concealment, the patient must learn of the negligence after the statute of limitations has run. There are cases where the fraudulent concealment is discovered very late into the statute of limitations. Unfortunately, the cases indicate that it doesn’t matter if little time is left to file a lawsuit under the statute of limitations. If the negligence is discovered within the statute of limitations, the lawsuit must be filed within the statute of limitations.
Seek Legal Guidance Immediately Upon Learning of Medical Malpractice
Medical malpractice cases are always difficult and challenging even without complications such as fraud. It is important to seek the guidance of an experienced medical malpractice attorney as soon as you learn of medical malpractice.
If you or a loved one has been seriously harmed by medical malpractice, Collins & Collins, P.C. is happy to review your case free of charge. There are no attorney fees unless we are successful in getting compensation for your injuries. You can contact us by phone at 505.242.5958 or online using the form on this page.