Divided COA panel finds for woman wrongly told hepatitis test was negative

A woman who learned years after she had been told that a hepatitis test was negative that in fact the test had come back positive had her case reinstated June 26 by the majority of an Indiana Court of Appeals panel. Two of three judges found a clinic fraudulently concealed the woman’s positive test result.

The appellate court ruling reinstates the medical malpractice action Teresa Blackford v. Welborn Clinic, 19A-CT-2054, in Vanderburgh Circuit Court.

Teresa Blackford sought treatment at Welborn Clinic in Evansville in 2003 for lichens plans, an inflammatory skin condition in which hepatitis can be an underlying cause. She was tested and told the result was negative. When her condition significantly worsened in 2014, another test revealed she had hepatitis C, and a review of the records from the 2003 test at Welborn found she had been “highly reactive” and positive for hepatitis.

After Blackford says a medical review panel determined Welborn committed medical malpractice, she sued, but Vanderburgh Circuit Judge David Kiely granted Welborn’s motion for summary judgment. The trial court found Blackford’s claim was time-barred under the Indiana Business Trust Act.

A majority of a COA panel reversed Friday, granting partial summary judgment to Welborn and remanding to the trial court for proceedings.

“The doctrine of fraudulent concealment is an equitable remedy that bars a defendant from asserting the statute of limitations as a defense if the defendant ‘prevented a plaintiff from discovering an otherwise valid claim, by violation of duty or deception,’” now Senior Judge John Baker wrote for the majority in a case of first impression joined by Judge Melissa May.

“(T)he evidence is undisputed that Welborn failed to disclose to Blackford that her hepatitis test was positive and, in fact, told her precisely the opposite,” the majority wrote. “Based on this record, we hold as a matter of law that Welborn fraudulently concealed — at the least, passively; at the worst, actively — material medical information from Blackford.”

“… As such, we find that Blackford successfully demonstrated that (1) because an equitable exception for fraudulent concealment applies to the IBTA’s nonclaim statute, it was erroneous for the trial court to grant Welborn’s motion for summary judgment on this basis; and (2) the undisputed evidence in the record establishes as a matter of law that Welborn committed passive fraudulent concealment, which does, in fact, prevent application of the five-year limit under the IBTA, rendering denial of Blackford’s motion for partial summary judgment inappropriate. Therefore, we reverse the trial court’s order and remand with instructions to enter partial summary judgment in Blackford’s favor on this issue.”

Judge Elaine Brown dissented, arguing the trial court’s finding for Welborn should be affirmed.

“The majority notes that the record does not reveal when, precisely, the patient-physician relationship between Blackford and Welborn ended, and assumes that, at the latest, it ended the day Welborn surrendered its authority to transact business on June 30, 2009. Blackford concedes that she did not file her claim against Welborn within the five-year period imposed by the IBTA,” she wrote.•

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