Allegations of fraud can amount to both an independent cause of action for fraud and potentially extend the statute of limitations in connection with claims of medical malpractice. The courts, however, have imposed more restrictive requirements over fraud claims against physicians in the context of medical malpractice.
Fraud in Medical Malpractice Cases
The reoccurring context of fraud in medical malpractice cases is where a physician allegedly commits malpractice and then either conceals it from his or her patient and/or makes additional misrepresentations to the patient that in some way adversely affect the treatment for the malpractice or underlying condition. Courts have required more than mere concealment of the malpractice from the patient for purposes of alleging a fraud claim as well as for extending the statute of limitations. An affirmative misrepresentation concerning the treatment is required.
In Simcuski v Saeli, 44 NY2d 442, 451 (1978), the Court of Appeals considered the various public policies regarding limitations imposed on tort actions against physicians. Citing pronouncements from Appellate Division case law, the Court recognized:
“Fraudulent representations may play a dual role. They may be the basis for an independent action for fraud. They may also, in equity, be a basis for an equitable estoppel barring the defendants from invoking the Statute of Limitations as against a cause of action for breach of fiduciary relations.”
The Court of Appeals found that the six-year statute of limitations applied to the allegations of fraud in that case, then acknowledged the existing state of the law as to whether mere concealment may serve as the basis for fraud in this context:
In reaching this determination, we recognize and approve, but distinguish, cases which hold that, without more, concealment by a physician or failure to disclose his own malpractice does not give rise to a cause of action in fraud or deceit separate and different from the customary malpractice action, thereby entitling the plaintiff to bring his action within the longer period limited for such claims.
The Court found that an independent cause of action for fraud was alleged because “the complaint alleges an intentional fraud — that [the defendant doctor] knowing it to be untrue yet expecting his patient to rely on his advice, advised her that physiotherapy would produce a cure, in consequence of which fraudulent misrepresentation the patient was deprived of the opportunity for cure of the condition initially caused by the doctor’s alleged malpractice.”
New Fourth Department Case
A recent decision of the Appellate Division Fourth Department, Forbes v Caris Life Sciences, Inc., 2018 NY Slip Op 02086 (4th Dep’t Decided on March 23, 2018), addresses these issues.
The context was a medical malpractice case in which the statute of limitations governing at that time for such malpractice had expired, and the patient was attempting to allege fraud both as an independent cause of action and to extend the statute of limitations. The Court held in relevant part:
Defendants further contend that plaintiff failed to state a cause of action for fraud or fraudulent concealment, and that they are not estopped from invoking the statute of limitations against plaintiff’s medical malpractice cause of action. We agree. “The elements of a cause of action for fraud in connection with charges of medical malpractice are knowledge on the part of the physician of the fact of his [or her] malpractice and of [the] patient’s injury in consequence thereof, coupled with a subsequent intentional, material misrepresentation by [the physician] to [the] patient known by [the physician] to be false at the time it was made, and on which the patient [justifiably] relied to his [or her] damage’ ” (Abraham v Kosinski, 305 AD2d 1091, 1092 [4th Dept 2003], quoting Simcuski v Saeli, 44 NY2d 442, 451 [1978]). “The damages resulting from the fraud must be separate and distinct from those generated by the alleged malpractice” (id. [internal quotation marks omitted]). Additionally, “a defendant may be estopped to plead the [s]tatute of [l]imitations where [the] plaintiff was induced by fraud, misrepresentations or deception to refrain from filing a timely action” (Simcuski, 44 NY2d at 448-449). However, “without more, concealment by a physician or failure to disclose his [or her] own malpractice does not give rise to a cause of action in fraud or deceit separate and different from the customary malpractice action, thereby entitling the plaintiff to bring his [or her] action within the longer period limited for such claims” (id. at 452).
Here, plaintiff alleged that defendants knew about the misdiagnosis when the hospital sent its report dated March 8, 2013 and that defendants fraudulently concealed the misdiagnosis by failing to disclose it to decedent or the dermatologist, which deprived decedent of an opportunity to commence a timely action for medical malpractice. That allegation is insufficient to state a cause of action for fraud or fraudulent concealment and to estop defendants from asserting its statute of limitations defense inasmuch as plaintiff “fail[ed] to set forth a misrepresentation beyond defendants’ failure to disclose their own malpractice” (Atton v Bier, 12 AD3d 240, 241 [1st Dept 2004]; see Plain v Vassar Bros. Hosp., 115 AD3d 922, 923 [2d Dept 2014]).