Sargent v. Springer , 2010 Ark. App. 844 ( 2010 )

JOSEPHINE LINKER HART, Judge.

| íAlan Sargent appeals from the grant of summary judgment in favor of radiologist William Springer. The trial court found that Sargent’s complaint was barred by the statute of limitations. On appeal, Sargent argues that summary judgment was inappropriate because there was a material fact in issue, and he was deprived of the opportunity to conduct discovery. We affirm.

On November 13, 2001, Sargent underwent gall bladder surgery. He experienced abdominal pain, and he returned to his surgeon, Dr. Marc Rogers. Sargent underwent a second surgery on October 23, 2003. A sponge that was left inside his abdominal cavity during the November 13, 2001 surgery was discovered and removed. Sargent sued Rogers and others for medical malpractice.

At the trial of Sargent’s lawsuit, Springer was called as a defense witness. He testified | ¡¡that he performed a T-tube cho-langiogram¹ on Sargent on November 28, 2001. Springer stated that the study was a routine, post-surgery practice intended to detect the presence of stones in the bile duct. As part of the exam, a “scout film” was taken, to detect opaque stones that would possibly be masked when contrast was injected for the rest of the study.

Springer was asked to review the images that composed the cholangiogram. The film revealed the presence of two large stones. He was then directed to a “light-colored shape” that appeared on one of the films. He did not recall whether or not he told Rogers about the presence of the shape, and he admitted that he did not put it in his report. When pressed, Springer admitted that “to a reasonable degree of medical certainty” the light colored object was the radiopaque marker on a lap sponge. He also conceded that finding a sponge would be “important” and that he would normally have included it in his report. Springer also admitted that he had recently reviewed the cholangiogram just prior to his testimony at the behest of one of his “colleagues.”

After the trial, on June 16, 2009, Sargent filed a medical-negligence lawsuit against Springer. Springer affirmatively pled the statute of limitations in his answer. Springer moved for summary judgment on July 15, 2009. On July 22, 2009, Sargent amended his complaint to allege that Springer conspired with Rogers to “hide the fact that there was a sponge left in [his] body.” Sargent also alleged that Springer “fraudulently concealed that a sponge had been left in the Plaintiffs body.” Springer successfully moved to quash Sargent’s attempt to take his | (¡deposition. Sargent then answered Springer’s summary-judgment motion, attaching an affidavit that stated that prior to Springer’s trial testimony, he had no idea that the cholangiogram indicated the presence of a foreign object in his body. At the motion hearing, Sargent argued that summary judgment was inappropriate because there was insufficient development of the underlying facts due to his being precluded from deposing Springer. He also asserted that Springer had not denied his allegation of fraudulent concealment. The trial court granted summary judgment, finding that Sargent’s complaint was time-barred.

On appeal, Sargent argues that summary judgment was inappropriate because he alleged that there was fraudulent concealment, which Springer did not specifically dispute, which therefore created a material issue of fact. Furthermore, he contends that the facts were insufficiently developed in this case because he was deprived of the opportunity to conduct discovery. We find this argument unpersuasive.

Summary judgment is to be granted by a trial court only when it is clear that there are no genuine issues of material fact to be litigated, and the party is entitled to judgment as a matter of law. Martin v. Arthur, 339 Ark. 149, 3 S.W.3d 684 (1999). When the running of the statute of limitations is raised as a defense, the defendant has the burden of affirmatively pleading this defense. Id. However, once it is clear from the face of the complaint that the action is barred by the applicable limitations period, the burden shifts to the plaintiff to prove by a preponderance of the evidence that the statute of limitations was in fact tolled. Id. Fraud suspends the running of the statute of limitations, and the suspension remains in effect until |4the party having the cause of action discovers the fraud or should have discovered it by the exercise of reasonable diligence. Id. Although the question of fraudulent concealment is normally a question of fact that is not suited for summary judgment, when the evidence leaves no room for a reasonable difference of opinion, a trial court may resolve fact issues as a matter of law. Id. Moreover, in order to toll the statute of limitations, the plaintiff is required to show something more than a continuation of a prior nondisclosure. Id. There must be proof of some positive act of fraud, something so furtively planned and secretly executed as to keep the plaintiffs cause of action concealed, or perpetrated in a way that it conceals itself. Id.

The statute of limitations for medical malpractice actions is found in Arkansas Code Annotated section 16-114-203 (Repl.2006), which provides in relevant part:

(a) Except as otherwise provided in this section, all actions for medical injury shall be commenced within two (2) years after the cause of action accrues.

(b) The date of the accrual of the cause of action shall be the date of the wrongful act complained of and no other time. However, where the action is based upon the discovery of a foreign object in the body of the injured person which is not discovered and could not reasonably have been discovered within such two-year period, the action may be commenced within one (1) year from the date of discovery or the date the foreign object reasonably should have been discovered, whichever is earlier.

The issue is not whether Springer committed a positive act of fraud with regard to what he stated or neglected to state in his radiology report, but whether his negligence should have “reasonably been discovered.” This is a case “based on the discovery of a foreign object in the body,” which means that pursuant to Arkansas Code Annotated section 16-114-203(b), the negligence attributable to Springer, should have reasonably been discovered when the Igforeign object was discovered on October 23, 2003. After the actual, physical discovery of the foreign object, Springer’s failure to report its presence, even if intentional, should as a matter of law reasonably have been discovered. At that point, Sargent had one year to commence his action against Springer. Id. Because this cause of action was not filed within this required one-year period, the trial court did not err in granting summary judgment to Springer.

Affirmed.

BAKER, J., agrees. BROWN, J., concurs.

1 . A cholangiogram is an x-ray study of the biliary duct system. Mosby's Medical & Nursing Dictionary, 217 (Laurence Urdang et al. eds., The C.V. Mosby Co. 1983).