In Downing v. Grossman, an April 2022 decision, the Iowa Supreme Court reaffirmed that medical malpractice plaintiffs may not use allegations of fraudulent concealment to employ equitable estoppel to eviscerate the operation of Iowa Code § 614.1(9)’s a statute of repose when the alleged fraudulent concealment goes to the very “heart of” a plaintiff’s claim.
To understand Downing, it is important to keep in mind the similarities and differences between statutes of limitation and statutes of repose. Statutes of limitation and statutes of repose share an interconnected purpose—taken together, they construct a permissible frame of time in which an action can be brought. But the two classes of statute derive from distinct legal principles. As the Iowa Supreme Court explained, a primary difference between a statute of repose and a statute of limitation involves the identity of the party each statute strives to govern. Specifically, where “[a] statute of limitations governs how much time a plaintiff has to bring a cause of action after it accrues . . . a statute of repose governs how long a potential defendant is subject to liability for his actions.” Id. at 518 (emphases added).
In Iowa, an action generally accrues when a potential plaintiff is injured. This point in time also marks when a statute of repose starts running. However, sometimes parties are not aware of their injuries at the time they occur. In those circumstances, the statute of limitations—the clock that governs the span of time a plaintiff has to commence an action—does not start ticking until the plaintiff “discovers or reasonably should have discovered she has been injured.” Id.
But what happens when a party is slow to learn of an injury? In Downing, a plaintiff alleged she underwent a series of treatments primarily for abdominal issues, beginning in 2004, in which her care providers recognized but did not inform her of a cancerous mass atop her kidney. In 2016, she sustained a shoulder injury and underwent a CT scan with a separate health care provider. As the Downing opinion details: “Again, Berry was not informed of the mass during her treatment, but a nurse discharging Berry happened to mention the kidney mass to her. Berry claims this was the first time anyone ever informed her of the mass on her kidney.” Id. Later that month, the plaintiff was diagnosed with metastatic renal cell carcinoma. She underwent surgery and various treatments over the next three years but passed away from her cancer in 2019.
Before dying, in April 2018, she sued the physicians and hospital at which she received her initial course of treatment for abdominal issues. The defendants, who had not treated the plaintiff since 2009, moved for summary judgment under Iowa Code § 614.1(9)’s statute of repose, which provides that “in no event shall any action be brought more than six years after the date on which occurred the act or omission or occurrence alleged in the action to have been the cause of the injury or death.” The plaintiff opposed the motion by arguing the defendants should be equitably estopped from asserting the statute of repose—an affirmative defense—because the defendants concealed her condition’s existence, thus preventing her from realizing her cause of action until it was too late.
The Supreme Court began by noting: “[e]quitable estoppel is not premised on the fact that the defendant has harmed the plaintiff but on the fact that—having harmed the plaintiff—the defendant also concealed the existence of a cause of action.” Id. at 520. From there, the Court stated that cases involving alleged concealment can be separated, based on the act’s nature, into two classes.
The first class involves scenarios where the alleged concealment represents conduct that is separate from the underlying liability-producing act. To use one example cited by the Supreme Court, in Christy v. Miulli, a doctor caused a brain bleed while he operated on a patient, and then later misled the patient’s wife regarding the brain bleed’s location—allegedly to suggest the bleed was unrelated to the procedure. 692 N.W.2d 694, 698-99 (Iowa 2005). In that circumstance, the liability-producing act (the procedure that produced the bleed) was distinct from the doctor’s subsequent statement that was designed to prevent the patient from realizing the cause of action.
The second class involves scenarios where a failure to disclose bears an intrinsic relation to the source of liability. The Supreme Court cited Van Overbeke v. Youberg, a case where a doctor failed to inform a pregnant and Rh-negative patient she may require a particular medication to assist with delivery. 540 N.W.2d 273, 275 (Iowa 1995). There, the doctor’s failure to inform itself served as the liability-producing act, as the failure prevented the patient from making educated decisions regarding her healthcare.
In both circumstances, Iowa Code § 614.1(9)’s statute of repose would begin to run when the liability producing act occurs: in Christy—the time of the improper procedure; and in Van Overbeke, at the time of the failure to inform. In the first circumstance—Christy—there was a clear delineation between the liability-producing act and the doctor’s attempted concealment. Under that fact pattern, the plaintiff could likely attempt to employ equitable estoppel to prevent the defendant from arguing the case is time-barred.
But in the second circumstance—Van Overbeke—the liability-producing act itself involves an alleged concealment. Failure to inform can indeed serve as a basis for a medical malpractice action. And the elements of a claim that alleges a failure to inform overlap with the elements a plaintiff must show to achieve estoppel against a defendant based on the defendant’s alleged fraudulent concealment. Therefore, if you analyze this second class of cases under Christy’s rule, you can imagine a scenario where a cause of action for failure to inform arises, and the plaintiff uses the defendant’s alleged failure to inform and fraudulent concealment—the issue at the very heart of the case—to prevent a defendant from asserting a statute of repose defense.
But under other Iowa precedent, cases where an act of concealment lies “at the heart of” a professional negligence claim are analyzed under a separate framework—one in which the alleged act of concealment cannot be used to forever prevent a statute of repose’s operation. The Iowa Supreme Court analyzed Downing under this second class of cases:
[The plaintiff] is essentially asserting a substantive claim of fraudulent concealment premised on a duty by Dr. Grossmann to disclose the incidental results of her CT scan. But she brought her claim more than six years after Dr. Grossmann failed to make that disclosure. To allow her claim to go forward would effectively eviscerate the statute of repose for claims of failure to inform a patient. To avoid the statute of repose, Berry must identify some act of concealment that is independent of the duty to disclose the CT scan results. Unable to do so, Berry cannot rely on fraudulent concealment to estop defendants from asserting the six-year statute of repose as a defense to Berry’s claims.
Downing is a reminder that defense counsel should be mindful to carefully evaluate the plaintiff’s allegations regarding the liability-producing act at the case’s center. Plaintiffs may certainly use artful pleadings to escape arguments that their claims are time-barred. But under Downing and related Iowa precedent, courts look to the allegations “at the heart of the claim” to determine whether the plaintiff can employ equitable estoppel based on an alleged fraudulent concealment to prevent a defendant from asserting a statute of repose defense. Further, under Downing, it is entirely possible that a statute of repose can expire before a statute of limitations starts running.