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Jenkins v. Dyess6/19/2002
r a peremptory period as a defense when that person, by deception or a violation of a duty, conceals material facts from the plaintiff to prevent discovery of the wrong. Equitable estoppel may arise either from active efforts to conceal the malpractice or from a failure to disclose material information when a fiduciary or confidential relationship exists between the physician and patient. The physician's failure to disclose that which he knows, or in the exercise of reasonable care should have known, constitutes constructive fraud which effectually prevents the patient from availing herself of the cause of action. This constructive fraud terminates at the conclusion of the physician-patient relationship, at which time the statute of limitations begins to run. See Corsey, supra; and , Justice Lemmon's dissent in Whitnell, supra.
A physician-patient relationship does not necessarily end with the patient's last office visit. Here, there is clear evidence of a continuing relationship after September 14, 1992. This evidence includes the duration of the physician/patient relationship since 1988; the actual finding of a suspicious mass by Dr. Dyess in his examination of Ms. Jenkins; what Dr. Dyess should have known from the mammogram x-rays and both verbal and written reports from the hospital; and Ms. Jenkins' justifiable belief of a continuing relationship with Dr. Dyess. Most importantly, Dr. Dyess' own notes recognized an obligation and intent to get further test results; this showed the existence of a continuing physician/patient relationship.
For these reasons, I respectfully dissent.
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