Date: 02-06-2002

Case Style: Donna Little v. St. Paul Mercury Insurance Company

Case Number: CA01-771

Judge: Wendell L. Griffen

Court: Arkansas Court of Appeals

Plaintiff's Attorney: Unknown

Defendant's Attorney: Unknown

Description: Donna Little, the sister of David Rosborough, deceased, appeals as special administrator of his estate. David committed suicide while in the Leo N. Levi Memorial Hospital (hospital) in Hot Springs, Arkansas. Appellant originally filed a medical malpractice action against the hospital. She later substituted St. Paul Mercury Insurance Company (appellee), the insurance carrier for the hospital, as the defendant, due to the hospital's immunity from suit as a non-profit entity. Appellee filed a motion for summary judgment, asserting that the claim was barred by the statute of limitations. Appellant countered that the statute of limitations was tolled due to the hospital's fraudulent concealment of the facts surrounding David's death. The trial court granted appellee's motion for summary judgment. Appellant now argues that the trial court erred in granting summary judgment because genuine issues of material fact remained concerning whether thehospital engaged in fraudulent concealment. We disagree and affirm.

David was admitted to the psychiatric ward of the hospital on August 17, 1995. Because he was admitted due to a suicide attempt, he was placed on fifteen-minute checks. It is undisputed that David was last checked at 9:15 p.m. on August 19. He was found asphyxiated in his room at 10:45 p.m. that same evening.

Appellant, a resident of Pennsylvania, traveled with her parents to Arkansas in October 1995. During that visit, appellant spoke with the hospital's administrator, Patrick McCabe, and received copies of David's medical records, which clearly indicated that the fifteen-minute checks had not been conducted as ordered. She suspected that her brother, a former employee of the hospital, had been killed, and inquired about the cause of his death. McCabe allegedly told her that the hospital had done everything it could for David. At the time of the meeting, appellant was aware that the fifteen-minute checks had not been conducted as ordered and she asked McCabe why the checks had not been conducted as ordered. According to appellant, McCabe responded that he would have to check with the staff.

McCabe failed to reveal to appellant that two hospital employees, Cynthia Erskine and Louise Jimmerson, had been terminated on August 24, 1995, because they failed to perform the fifteen-minute checks on David, for their failure to direct patient care by following physician's orders, and for their failure to appropriately utilize nonlicensed staff in delivering patient care. Erskine was also an attending nurse for another person who committed suicide two months before David died. She subsequently filed a lawsuit against the hospital for wrongful discharge. In its pretrial brief, filed on March 22, 1999, the hospital cited Erskine's failure to perform fifteen-minute observation checks among the several reasons for termination.

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Click the case caption above for the full text of the Court's opinion.

Outcome: Thus, we agree that there were no issues of material fact with regard to whether McCabe's misrepresentation constituted fraudulent concealment and hold that the trial court did not err in denying appellee's motion for summary judgment.

Affirmed.

Plaintiff's Experts: Unknown

Defendant's Experts: Unknown

Comments: C.L.