Iowa Supreme Court dismisses malpractice case despite claim of ‘concealed’ cancer

By: - April 22, 2022 4:43 pm
Patient receives respiratory treatment in a hospital

An Iowa family will not be allowed to pursue a malpractice claim over "fraudulent concealment" of cancer, the Iowa Supreme Court has ruled. (Photo via Getty Images)

Correction: A previous version of this story incorrectly characterized an October 2021 decision of the Iowa Court of Appeals on this case as Friday’s decision by the Iowa Supreme Court. The Supreme Court overturned the Court of Appeals and said the case should be dismissed.

The family of a deceased Iowa woman should not be allowed to pursue a medical malpractice claim against a central Iowa hospital accused of concealing a woman’s cancer, the Iowa Supreme Court has ruled.

In 2004, Linda Berry was hospitalized at Catholic Health Initiatives’ Mercy Medical Center when a computerized tomography (CT) scan revealed a mass on her right kidney. According to her family’s subsequent lawsuit, Berry was not informed of the mass.

In 2006, Berry was treated at Mercy for a urinary tract infection when another CT scan revealed the same mass. Again, the family alleges, Berry was not informed of the condition.

In October 2009, Berry was again seen at Mercy, arriving at the emergency room with complaints of abdominal pain. Dr. Paul Grossmann was consulted, an examination was performed and her abdominal area was scanned. Later, Berry was told the results of the scan were normal, she was diagnosed with constipation and discharged.

As Berry and her daughter were on their way home, however, they received a call from a resident doctor supervised by Grossmann. The resident allegedly told the daughter that her mother needed to return to the hospital immediately because further review of the scan results had triggered a concern that “not everything is OK.”

Upon returning to the hospital, Berry was allegedly told she had colitis and was given a prescription for an antibiotic. The scan taken earlier that evening had revealed the mass on her kidney had increased in size since 2004 and 2006, but according to the family, no mention of the mass was made that night.

Berry was again sent home, with her written discharge instructions making no mention of the mass on her right kidney.

Two days later, Berry returned to Mercy’s emergency room complaining of abdominal pain. A fourth CT scan was performed, again showing a mass on her kidney. Another doctor examined her at that time, and Grossmann was informed of radiology’s recommendation to follow up regarding the mass to make sure it was not cancerous.

Again, the family would later contend that none of the medical professionals at Mercy mentioned a mass on Berry’s kidney, and evidence would show that Grossmann had sent a letter to Linda’s primary care physician detailing her colitis while making no mention of a mass on her kidney.

Seven years later, in 2016, Linda returned to Mercy’s emergency room after she fell and broke her arm. A fifth CT scan revealed the kidney mass. Upon her discharge from Mercy, a nurse mentioned the mass to Berry.

According to the family, that was the first time they were informed of the situation. Berry was later diagnosed with metastatic renal cell carcinoma and died from the disease in May 2019.

Shortly before her death, she sued Mercy, Grossmann and others, alleging medical negligence. After her death, her family pursued the case.

Mercy, Grossmann and Catholic Health Initiatives sought to have the case dismissed, arguing too much time had passed and such a lawsuit was barred by the so-called “statute of repose” which is similar in effect to the statute of limitations.

With regard to medical malpractice claims, Iowa’s statute of repose says that “in no event shall any action be brought more than six years after” the alleged act of malpractice.

Berry’s estate argued such a defense didn’t apply to the case at hand because the alleged medical negligence had been fraudulently concealed from the family, creating an exception to the statute of repose.

The district court sided with Mercy, ruling that in this case, the alleged malpractice and the alleged concealment were in essence the same act, and the lawsuit was dismissed.

The family appealed that ruling to the Iowa Court of Appeals, which ruled that the district court had erred and the lawsuit should be allowed to proceed.

The Supreme Court on Friday vacated that ruling and affirmed the district court’s decision to dismiss the matter.

“The liability-producing conduct was Dr. Grossmann’s alleged failure to disclose to Berry the concerning findings on her CT scan,” the Supreme Court noted. “But the plaintiffs then rely on these same acts — Dr. Grossmann’s failure to tell Berry about the mass when she returned to the hospital on Oct. 1 or saw him in his office on October 6 as well as Dr. Grossmann’s Oct. 6 letter to Berry’s primary care physician — as his acts of concealment.”

The law requires that the concealment required to filed a lawsuit at such a late date be “independent of the liability-producing act,” the justices ruled. “That Dr. Grossmann had multiple opportunities to disclose the kidney mass just means he acted negligently on successive occasions.”

Berry, the court said, “brought her claim more than six years after Dr. Grossmann failed to make that disclosure. For the family’s lawsuit to proceed, the court said, they would have had to identify “some act of concealment that is independent of the duty to disclose the CT scan results.”

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Clark Kauffman
Clark Kauffman

Deputy Editor Clark Kauffman has worked during the past 30 years as both an investigative reporter and editorial writer at two of Iowa’s largest newspapers, the Des Moines Register and the Quad-City Times. He has won numerous state and national awards for reporting and editorial writing. His 2004 series on prosecutorial misconduct in Iowa was named a finalist for the Pulitzer Prize for Investigative Reporting. From October 2018 through November 2019, Kauffman was an assistant ombudsman for the Iowa Office of Ombudsman, an agency that investigates citizens’ complaints of wrongdoing within state and local government agencies.