Concealment and Deceit
These are specific forms of disability. A doctor delivers a baby and causes a brain injury; he knows that he can be sued. So, he alters the medical records, deletes references to what happened, and
deliberately misleads the parents into thinking their child was brain damaged for some other reason.
You can understand the doctor’s feelings, even if you cannot sympathize with his actions. It is a temptation to head off a major lawsuit that will cause his medical malpractice insurance premiums to skyrocket, just by making a few judicious entries in the medical records and some soothing statements to the parents. Or, a doctor sews up an instrument inside a patient and when asked about it lies and says that all the instruments were accounted for, hoping to string the patient along until the time limit for a medical malpractice lawsuit has run out.
These actions would toll the statute of limitations until the concealment or deceit is discovered. However, the doctor has to do more than just keep quiet and not volunteer any information. No doctor is going to come right out and tell you that he committed medical malpractice.
You have to show there was active and deliberate concealment or deceit by the doctor or the hospital, and that it was designed to keep you from learning you had been the victim of malpractice. Failure to tell you, or giving you an explanation that makes him look good, is not sufficient reason to sue. The doctor has to actually try to mislead or deceive you by altering medical records, lying about what happened, or otherwise falsifying the information you receive.
This means that some foreign object, a sponge or surgical instrument, was closed up inside your body without you knowing it. The clock does not start running until you detect it or should have detected it. For example, a surgical clamp or needle can stay inside your body for years without causing any trouble that would alert you to the fact it is there. A broken surgical needle can migrate around your chest or abdomen for years and cause strange symptoms without the victim realizing what is causing them. On the other hand, a gauze sponge in your abdomen, or dye injected into your spinal column, will probably cause a lot of trouble almost immediately.
In a New Hampshire case, the doctors committed medical malpractice by failing to deliver the entire placenta after the birth of a baby. That resulted in the patient having to undergo a hysterectomy. The doctors committed further malpractice by sewing up a gauze sponge inside the patient. The sponge caused serious infections over the next two or three years, but the same doctors, still treating her, either did not know or did not tell her what it was. She finally became so ill that she went to a hospital in Boston where the sponge was found and removed. But, by that time, it was too late, and she died leaving three orphans.
When her family filed a
lawsuit, the doctors’ lawyers claimed the case was over the time limit, because the deceased lady and her family should have known something was wrong much earlier. But, the court held that her confidence in her doctors meant that the statute of limitations was tolled until the sponge was discovered and removed in Boston. If the doctors had advised doing an exploratory operation to find the cause of the trouble, and she had ignored that advice for more than two years, it might have been a different story.
The Rule Is: No patient can be criticized for continuing to have blind faith in a doctor even though he or she may have serious doubts about the doctor’s competence or performance. It is not a defense to a charge of medical malpractice, to say the patient should have suspected something was wrong and consulted another doctor. The doctor is the expert; it is his or her duty to refer the patient to another doctor, if referral is indicated.