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Wisher v. Higgs3/2/1993
e injury and then concealment. It is the cause of action which must be fraudulently concealed by failing to disclose the fact of injury from malpractice, by diverting the patient from discovering the malpractice that is the basis of the action. [Citation omitted.]
Monroe, 518 P.2d at 790.
The language of ยง 27-2-205, MCA, however, indicates that simply the failure to disclose facts, as opposed to affirmative, fraudulent concealment, is sufficient to toll the statute:
his time limitation shall be tolled for any period during which there has been a failure to disclose any act, error, or omission upon which such action is based and which is known to the plaintiff or through the use of reasonable diligence subsequent to said act, error, or omission would have been known to him.
The evidence presented as to the concealment issue in this case is conflicting and ultimately rests upon the credibility and weight to be afforded each witness's testimony. As stated, the standard of review employed by the Supreme Court on an appeal alleging insufficiency of evidence is to determine whether the evidence is "substantial" enough to support the verdict. Guenther v. Finley (1989), 236 Mont. 422, 426, 769 P.2d 717, 720. The evidence may be inherently weak and still be considered substantial. Wheeler v. City of Bozeman (1988), 232 Mont. 433, 437, 757 P.2d 345, 347. In addition, when conflicting evidence exists, the credibility and weight to be given to the conflicting evidence is within the province of the jury. Wheeler, 757 P.2d at 347. Because the evidence presented on this issue furnishes reasonable grounds for different conclusions, the findings of the jury will not be disturbed. Rock Springs Corp. v. Pierre (1980), 189 Mont. 137, 146, 615 P.2d 206, 211.
Based upon the foregoing, we hold that there was substantial evidence to support the jury's finding that Dr. Higgs's conduct did not prevent Ms. Wisher from exercising due diligence in discovering her injury or that it may have been caused by the surgery prior to November 1, 1981.
Affirmed in part, reversed in part, and remanded in part for a new trial on the issue of damages.
CHIEF JUSTICE TURNAGE, JUSTICES GRAY, HUNT, HARRISON, McDONOUGH and WEBER concur.
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