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Failure to Communicate Aortic Aneurysm Diagnosis Not Fraudulent Concealment


A woman presented to a gastroenterologist complaining of abdominal pain. The gastroenterologist performed a physical examination that revealed a pulsating mass in the region of the mid-abdomen. The gastroenterologist noted that it might be the woman’s abdominal aorta and possibly an aneurysm. The gastroenterologist went on to note that the woman should schedule an abdominal CT scan to rule out abdominal aneurysm. A copy of the gastroenterologist’s note was sent to the woman’s primary care physician.

 

A week after the gastroenterologist examined the woman, the woman underwent an abdominal CT scan. The CT scan revealed a 5.1-centimeter abdominal aortic aneurysm, an enlargement of the aorta, the main blood vessel that delivers blood to the body, at the level of the abdomen. The gastroenterologist performed an upper endoscopy and a colonoscopy on the woman and sent the biopsy results to the primary care physician. No one informed the woman of the results of these tests.

 

Eighteen months later, the woman visited her primary care physician for a follow-up appointment regarding the woman’s hypertension. The woman saw the primary care physician several more times.

 

Approximately three years after the abdominal CT scan that revealed the abdominal aortic aneurysm, the woman visited the gastroenterologist twice for abdominal complaints. After the woman’s visits, the gastroenterologist sent the woman’s primary care physician a report in which the gastroenterologist noted that a CT scan was normal, despite the fact that the CT scan actually showed the presence of an abdominal aortic aneurysm. No one advised the woman of the abdominal aortic aneurysm or the need to progressively manage hypertension to prevent growth or rupture of the aneurysm.

 

Approximately three months later, the woman presented to the hospital complaining of back pain on the right side that radiated to the right side of her abdomen. The hospital diagnosed the woman with a compression fracture and discharged her with instructions to follow up with her primary care physician. The following morning, the woman met with the primary care physician who did not advise the woman of the aneurysm or its possible association with back pain.

 

Later that afternoon, the woman presented to the hospital. After looking at the previous day’s imaging, a radiologist determined that the woman had a large abdominal aortic aneurysm. Shortly after the diagnosis, the woman’s aneurysm ruptured. A code was called. Resuscitation efforts failed. The woman died.

 

The woman’s estate sued the hospital, the practice group that provided the doctors at the hospital, and the radiologists for medical malpractice. After discovery commenced, the estate served various records requests upon the primary care physician and the gastroenterologist, with which both doctors complied.

 

Four years after the woman died, the estate sued the primary care physician and the gastroenterologist for medical malpractice. The complaint claimed that the primary care physician and the gastroenterologist failed to properly notify, follow, and treat the woman for an abdominal aortic aneurysm from the first abdominal CT that caught the aneurysm until the woman’s death.

 

The primary care physician and the gastroenterologist filed motions for summary judgment. The motions asserted that the claims were barred by the statute of limitations. Wrongful death and survival claims related to medical negligence must be commenced within two years after the death, unless there is fraudulent misrepresentation or concealment as to the cause of death.

 

The estate argued that the term “cause of death” as used in the statute of limitations, included the concept of an “underlying cause of death” which includes not just the disease, injury, or complication that directly precedes death but also a disease or injury that ignites a sequence of events that produces death. Relying on this expanded conception of the term “cause of death,” the estate argued that the failures of the primary care physician and gastroenterologist to inform, follow, and refer the woman for treatment of the abdominal aortic aneurysm constituted fraudulent concealment of the woman’s cause of death which tolled the two-year limitations period. The estate argued that the primary care physician and gastroenterologist’s production and dissemination of documents that characterized the woman’s abnormal abdominal CT scan results as normal served as continued misrepresentation of the woman’s condition, which further tolled the statute of limitations.

 

The Court of Common Pleas of Mercer County, Civil Division, granted the motions.

 

The Superior Court of Pennsylvania affirmed. The court held that the trial court did not err in interpreting the term “cause of death” as used in 40 P.S. § 1303.513 to mean “immediate cause of death” and not also “underlying cause of death” and therefore finding the primary care physician and the gastroenterologist did not fraudulently conceal the woman’s cause of death so as to toll the statute of limitations.

 

The trial court did not err in interpreting the term “cause of death” as used in 40 P.S. § 1303.513 to mean “immediate cause of death” and not also “underlying cause of death” and therefore finding the primary care physician and the gastroenterologist did not fraudulently conceal the woman’s cause of death so as to toll the statute of limitations. The actions of the primary care physician and gastroenterologist did not constitute fraudulent concealment of the woman’s cause of death. The primary care physician and gastroenterologist could not conceal the cause of a death that had not yet occurred. The actions prior to the woman’s death were irrelevant to the application of the doctrine of fraudulent concealment. The alleged misstatements in the medical records produced in response to the estate’s discovery requests did not change the cause of death—a ruptured abdominal aortic aneurysm.

 

The Superior Court of Pennsylvania affirmed the trial court’s grant of summary judgment in favor of the primary care physician and gastroenterologist on the ground that the claims were barred by the statute of limitations.

 

See: DeBonis v. George, 2017 WL 2304680 (Pa. Super. Ct., May 26, 2017) (not designated for publication).

 

See also Medical Law Perspectives Report: Mending a Broken Heart: Malpractice Risks in Diagnosing and Treating Heart Disease

 

See also Medical Law Perspectives Report: Congenital Heart Conditions: How Infants, Adults, and Healthcare Providers Handle the Risks

 

See also Medical Law Perspectives Report: Diagnosis and Treatment of Heart Attacks: Liability Issues

 

See the Medical Law Perspectives Blog: Medical Expert Testimony Not Necessary to Establish Standard of Care for Failure to Communicate Cancer Diagnosis

 

 

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