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Blackburn v. Blue Mountain Women's Clinic12/11/1997
n deprived of the protection of the tolling provisions of the statute of repose that the legislature enacted. In those cases where the failure to disclose is the malpractice — for example, in those cases where the injured plaintiff did not give informed consent to the offending treatment because the health-care provider negligently failed to disclose the risks attendant to the procedure — there can now be no tolling of the statute of repose because the malpractice and the failure to disclose are not separate acts; rather, they are one and the same act, error or omission.
To illustrate, assume the health-care provider fails to disclose a particular known risk attendant to a surgical procedure and, knowing that he has not properly advised the patient of this risk, he obtains consent for the procedure nonetheless. Five years and one day following the procedure the latent effects attendant to the risk manifest themselves in injury to the patient. Assume further that the health-care provider made no mention of his negligent failure to disclose the risk to the patient during the five years following his pre-surgery consultation. Under our decision, the patient is barred from filing a malpractice claim based upon lack of informed consent, notwithstanding the health-care provider's failure to disclose, because, under our decision here, the failure to disclose is the malpractice and is not an act, error or omission separate from the malpractice.
If the purpose of the "failure to disclose" provision in the tolling of the statute of repose is to protect the public from dishonest health-care providers and to encourage negligent health-care providers to disclose their malpractice so that injured patients might be able to timely seek corrective medical treatment and avoid further or prolonged injury , then we have effectively denied these remedial aspects of the statute to this whole class of informed-consent plaintiffs. Importantly, we have also deprived plaintiff Blackburn of the tolling protection that the statute was enacted to provide.
I would hold that Blackburn's medical malpractice claims which are premised in her allegation that her health-care providers failed to disclose to her that, being HIV negative, she could not give birth to an HIV-positive baby, are not barred by the five-year statute of repose. Rather, liability under this theory presents factual questions that should be resolved by the jury.
I dissent.
JUSTICES TRIEWEILER and HUNT concur in the foregoing dissent and concurrence.
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