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Caswell v. Yost9/10/2003
er seeing Dr. Bean on August 22, 1996, and September 12, 1996, and talking to him on September 30, 1996, did not return to see him until September 12, 1997. This was true even though the rash was "horrible," noticeable to other people, and was affecting her entire body. We agree with the district court that Caswell did not take any steps to inquire about the worsening nature of the rash during this time lag. We conclude Caswell was charged with knowledge of the facts that would have been disclosed by a reasonably diligent investigation. Langner, 533 N.W.2d at 517. We therefore affirm the district court's determination that Caswell did not file her suit within the two-year limitations period and, thus, her claims are barred.
Continuous Treatment Doctrine
Caswell contends that this court should adopt the continuous treatment doctrine. Our supreme court has considered the application of this doctrine on at least two occasions but has yet to decide whether it tolls the statute of limitations in section 614.1(9) because the court found the doctrine inapplicable in both cases. See McClendon, 569 N.W.2d at 385; Langner, 533 N.W.2d at 519. After a careful review of the summary judgment record, we decline to decide whether Iowa should adopt the continuous treatment doctrine because we find it does not apply to the facts in this case.
Fraudulent Concealment
Caswell alleges that defendants fraudulently concealed from her that Dilantin was causing her rash to persist. Fraudulent concealment may be shown if the plaintiff proves: (1) that the defendant affirmatively concealed the facts on which the plaintiff would predicate the cause of action; or (2) a confidential or fiduciary relationship existing between the person concealing the cause of action and the aggrieved party combined with proof that defendant breached the duty of disclosure. McClendon, 569 N.W.2d at 385. The alleged acts of concealment must be independent of the alleged act ruled on to establish liability. Id. The district court concluded, and we agree, that Caswell's fraudulent concealment claim is based on the same act as her medical malpractice claim-the defendants' failure to disclose what caused her rash. Therefore, we reject Caswell's argument that the doctrine of fraudulent concealment is applicable to the facts in this case and thus tolls the statute of limitations.
Accordingly, we affirm the decision of the district court.
AFFIRMED.
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