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Hemmerlin-Stewart v. Allina Hospitals & Clinics9/6/2005
5 N.W.2d 641, 646 (1954)).
The district court granted summary judgment in favor of respondents, finding that appellant would have had to commence her lawsuit by April 10, 1993, for it to be timely. Minn. Stat. ยง 541.076(b) (2004) provides: " n action by a patient or former patient against a health care provider alleging malpractice . . . must be commenced within four years from the date the cause of action accrued." Appellant does not dispute that she should have commenced her lawsuit by April 10, 1993; however, appellant argues that the statute of limitations should be tolled because respondents fraudulently concealed her cause of action.
"In limited circumstances, fraud in concealing a patient's cause of action may toll the running of the statute of limitations." Tackleson v. Abbott-Nw. Hosp., Inc. 415 N.W.2d 733, 735 (Minn. App. 1987), review denied (Minn. Feb. 12, 1988). The supreme court set forth the rule tolling the statute of limitations when there is fraudulent concealment of a cause of action in Schmucking v. Mayo, 183 Minn. 37, 235 N.W. 633 (1931).
hen a party against whom a cause of action exists in favor of another, by fraudulent concealment prevents such other from obtaining knowledge thereof, the statute of limitations will commence to run only from the time the cause of action is discovered or might have been discovered by the exercise of diligence.
Id. at 38-39, 235 N.W. at 633. Although there is no categorical definition of what constitutes fraudulent concealment, this court has stated that (1) " he party claiming fraudulent concealment has the burden of showing that the concealment could not have been discovered sooner by reasonable diligence[,]" and (2) "the concealment must be fraudulent or intentional." Collins v. Johnson, 374 N.W.2d 536, 541 (Minn. App. 1985), review denied (Minn. Nov. 26, 1985). Moreover, there must be an affirmative concealment of a cause of action. Williamson v. Prasciunas, 661 N.W.2d 645, 650 (Minn. App. 2003).
Appellant argues that respondents fraudulently concealed her cause of action by failing to disclose to her that the 1989 x-ray revealed the existence of the CVL. Appellant concedes that respondents did not take any affirmative action to conceal the negligence; however, appellant contends that because a confidential doctor-patient relationship existed, respondents had a fiduciary duty to disclose this information to her and mere silence is enough for fraudulent concealment.
Silence alone does not constitute fraud in the absence of a duty to speak. See L & H Airco, Inc. v. Rapistan Corp., 446 N.W.2d 372, 380 (Minn. 1989) (recognizing that nondisclosure amounts to fraud only if a legal obligation to communicate exists). A duty to disclose facts may exist when a fiduciary relationship exists. Id. Assuming that there is a fiduciary duty, a fiduciary can be liable for fraudulent misrepresentation by silence, even though there is no evidence of fraudulent statements or intentional concealment. Murphy v. Country House, Inc., 307 Minn. 344, 350, 240 N.W.2d 507, 512 (1976); Cohen v. Appert, 463 N.W.2d 787, 790 (Minn. App. 1990), review denied (Minn. Jan. 24, 1991), and reconsideration denied (Minn. Mar. 27, 1991). Even if a fiduciary duty is established, the limitation period is tolled only until the necessary facts are or could have been discovered by the party to whom the fiduciary duty is owed through reasonable diligence. Cohen, 463 N.W.2d at 790-91.
Appellant argues that in Schmucking, the supreme court created a rule that a physician can be liable for fraudulent concealment by mere silence. Schmucking, 183 Minn. at 39, 235 N.W. at 633. Appellant relies on the supreme court's s
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