Elizabeth Downing and Marcella Berry as Co-Administratrix of the Estate of Linda Berry v. Paul Grossman, M.D. and Catholic Health Initiatives Iowa Corp. d/b/a Mercy Medical Center, Mercy Medical Center West Lakes, and Mercy Surgical Affiliates

IN THE COURT OF APPEALS OF IOWA

No. 20-1124
Filed October 6, 2021

ELIZABETH DOWNING and MARCELLA BERRY AS CO-ADMINISTRATORS
OF THE ESTATE OF LINDA BERRY,
Plaintiffs-Appellants,

vs.

PAUL GROSSMAN, M.D. and CATHOLIC HEALTH INITIATIVES IOWA, CORP.
D/B/A MERCY MEDICAL CENTER, MERCY MEDICAL CENTER-WEST LAKES,
and MERCY SURGICAL AFFILIATES,
Defendants-Appellees.
________________________________________________________________

Appeal from the Iowa District Court for Polk County, David Porter, Judge.

Plaintiffs appeal from the district court’s grant of summary judgment in

defendants’ favor. REVERSED AND REMANDED.

Steve Hamilton and Molly M. Hamilton of Hamilton Law Firm, P.C., Clive,

for appellants.

Stacie M. Codr and Joseph F. Moser of The Finley Law Firm, P.C., Des

Moines, for appellees.

Considered by Bower, C.J., and Tabor and Ahlers, JJ.
2

AHLERS, Judge.

This is a medical malpractice action brought by the co-administrators of the

estate of Linda Berry.1 The defendants are various individuals and organizations

involved in Linda’s medical care.2 The medical professionals assert the action is

time-barred by the statute of repose set forth in Iowa Code section 614.1(9) (2018).

Linda’s estate acknowledges the action would be time-barred by the statute of

repose, but they assert the fraudulent-concealment exception applies to defeat the

statute-of-repose defense. The district court granted summary judgment in favor

of the medical professionals, resulting in dismissal of Linda’s estate’s action.

Finding a genuine issue of material fact over whether Linda’s estate’s claim of

fraudulent concealment defeats the medical professionals’ statute-of-repose

defense, we reverse the district court’s grant of summary judgment and remand

for further proceedings.3

1 The suit was started by Linda Berry, but, after her death, her daughters, as co-
administrators of Linda’s estate, were substituted as plaintiffs. For descriptive
clarity, we will refer to the plaintiffs as “Linda’s estate.” Accord Iowa R. App. P.
6.904(1) (encouraging use of names or descriptive terms for parties rather than
use of designations).
2 We will refer to all defendants, both individuals and organizations, collectively as

“the medical professionals,” unless context dictates need for reference to a specific
defendant.
3 The medical professionals’ motion for summary judgment also alleges the claims

of Linda’s estate are barred by the statute of limitations and punitive damages are
not available. The court granted summary judgment solely on the statute of repose
issue and did not address the statute of limitations or punitive damages issues.
While Linda’s estate briefed the statute of limitations and punitive damages issues
to us, we decline to address these issues for the first time on appeal. See Plowman
v. Ft. Madison Cmty. Hosp., 896 N.W.2d 393, 413 (Iowa 2017) (stating an
appellate court functions as “a court of review, not of first view” (quoting Cutter v.
Wilkinson, 544 U.S. 709, 718 (2005))).
3

I. Factual and Procedural Background.

Viewed in the light most favorable to Linda’s estate, the record supports the

following fact findings. In 2004, Linda was hospitalized at Mercy Hospital4 and a

computerized tomography (CT) scan revealed a kidney mass. In 2006, Linda was

again treated at Mercy Hospital, this time for what was ultimately diagnosed as a

urinary tract infection. A CT scan again revealed a kidney mass. Linda—and now

her daughters following Linda’s passing—contends she was never informed of the

kidney mass on either occasion.

On October 1, 2009, Linda was again seen at Mercy Hospital, arriving at

the emergency room with complaints of abdominal pain. Dr. Paul Grossman,5 a

named defendant in this action, was consulted regarding Linda’s complaints.

Linda was examined, and a CT scan was performed. Linda was told the CT scan

results were normal. She was diagnosed with constipation and discharged.

As Linda’s daughter drove her home, the daughter received a call from a

resident doctor supervised by Dr. Grossman. The resident told the daughter that

Linda needed to return to the hospital because further review of the CT scan results

caused the medical professionals to conclude “not everything is okay.” Upon

returning to the hospital, Linda was told she had colitis and was given a prescription

for an antibiotic. Unbeknownst to Linda, this CT scan also revealed the mass on

Linda’s right kidney, which had increased in size from when it was detected in the

4 Defendant Catholic Health Initiatives Iowa, Corp. operates hospital facilities
known as Mercy Medical Center and Mercy Medical Center-West Lakes. For ease
of reference, we will refer to either facility as Mercy Hospital, as differentiating
between the two sites is not necessary to address the issues at hand.
5 While the petition names Dr. “Grossman” as defendant, the doctor’s last name is

also spelled “Grossmann” throughout the record. We will use “Grossman.”
4

2004 and 2006 CT scans. Linda6 and her daughters insist the doctors did not

inform her of the kidney mass at that time. This claim is supported by the fact the

discharge instructions given to Linda from Mercy Hospital do not mention the

kidney mass.

Two days later, Linda was again in the Mercy Hospital emergency room for

abdominal pain. Another CT scan was performed, which again showed the kidney

mass. Another doctor examined Linda on this visit, but Dr. Grossman was

informed of the radiology recommendation to follow up regarding the mass to

ensure it was not cancerous. As with prior scans, Linda and her daughters both

contend none of the medical professionals informed Linda of the mass.

On October 6, 2009, Dr. Grossman prepared and sent a letter to Linda’s

primary care physician outside the Mercy Hospital system detailing his treatment

of her colitis. The letter makes no mention of the kidney mass. In December 2009,

Dr. Grossman discharged Linda from his care.

On April 24, 2016, Linda was again in the Mercy Hospital emergency room

after she fell and broke her arm. A CT scan again revealed the kidney mass, and

Linda was referred to the University of Iowa Hospital for treatment of her arm.

Upon discharge from Mercy Hospital, a nurse mentioned the kidney mass to Linda.

According to Linda and her daughters, this was the first time they were informed

of the mass. Linda was later diagnosed with metastatic renal cell carcinoma and

died from that disease on May 22, 2019.

6 Linda’s testimony was preserved by deposition prior to her death.
5

Linda filed this suit alleging medical negligence in 2018, prior to her death.

After her death, her daughters, as co-administrators of her estate, were substituted

as plaintiffs. The medical professionals asserted an affirmative defense that the

claims against them are barred by the statute of repose. Linda’s estate responds

by claiming the defense does not apply because the medical negligence was

fraudulently concealed. The district court granted summary judgment in favor of

the medical professionals on the basis that the alleged malpractice and the alleged

concealment are in essence the same, thereby making the exception to the statute

of repose inapplicable. Linda’s estate appeals.

II. Timeliness of the Appeal

Before proceeding to the merits of the appeal, we first address the medical

professionals’ claim that the estate’s appeal is untimely. Ordinarily, a notice of

appeal must be filed within thirty days of the filing of the final order or judgment

being appealed. Iowa R. App. P. 6.101(1)(b). However, if a motion is timely filed

pursuant to Iowa Rule of Civil Procedure 1.904(2), the deadline for filing notice of

appeal is thirty days after the filing of the ruling on the motion. Id. The timeliness

of filing notice of appeal presents a jurisdictional issue—that is, without a timely

filed notice, we are not at liberty to hear an appeal. Valles v. Mueting, 956 N.W.2d

479, 483 (Iowa 2021).

In this case, an issue over the timeliness of Linda’s estate’s notice of appeal

arises because, after the district court filed its order granting the medical

professionals’ motion for summary judgment and dismissing the estate’s claim, the

estate filed a motion pursuant to rule 1.904(2) asking the district court to modify or

amend its ruling. The district court denied the rule 1.904(2) motion. The estate
6

filed notice of appeal within thirty days of that ruling, but more than thirty days after

the original summary judgment ruling was filed. The medical professionals assert

the notice of appeal is untimely because the thirty-day appeal period is measured

from the original summary judgment ruling rather than the ruling on the rule

1.904(2) motion due to the rule 1.904(2) motion simply rehashing the estate’s

resistance to the summary judgment motion. Therefore, according to the medical

professionals, the motion was not a “proper” rule 1.904(2) motion, so it did not toll

the time for filing notice of appeal. In support of their argument, the medical

professionals rely on Hedlund v. State, which generally held that a rule 1.904(2)

motion that is a pure “rehash of legal issues” addressed in the order that is the

target of the rule 1.904(2) motion is not a proper rule 1.904(2) motion and does not

extend the deadline for filing notice of appeal. 875 N.W.2d 720, 727 (Iowa 2016).

Due to amendments to the rules of appellate procedure that became

effective March 1, 2017, we need no longer resolve the often murky issue whether

a rule 1.904(2) motion is a “proper” motion that tolls the deadline for filing notice of

appeal, as was required by Hedlund. The applicable rule of appellate procedure

in effect when Hedlund was decided read as follows:

6.101(1) Time for filing a notice of appeal from final orders and
judgments.
....
b. All other cases. A notice of appeal must be filed within 30
days after the filing of the final order or judgment. However, if a
motion is timely filed under Iowa R. Civ. P. 1.904(2) or Iowa R. Civ.
P. 1.1007, the notice of appeal must be filed within 30 days after the
filing of the ruling on such motion.

After the amendments that took effect March 1, 2017, rule 6.101(1)(b) remained

unchanged, but a new subparagraph 6.101(1)(c) was added that reads:
7

c. Timely filing of motion defined. For purposes of subparts
a and b above, a motion is considered timely if it has been filed by
the applicable deadline and asks the court to reconsider, enlarge, or
amend its order, ruling, judgment, or decree. Whether a motion is
proper or not does not affect its timeliness. Provided, however, that
a motion will not be considered timely if the same party has
previously filed a motion to reconsider, enlarge, or amend the court’s
order, ruling, judgment, or decree, unless the court has modified its
order, ruling, judgment, or decree and the subsequent motion is
directed only at the modification.

(Emphasis added.). If the plain language of newly added rule 6.101(1)(c) was not

enough to make it clear the amendment superseded Hedlund’s holding that only a

“proper” rule 1.904(2) motion extended the deadline for filing notice of appeal, the

published comments to rule 6.101 remove any further uncertainty on this point:

Rule 6.101[(1)](c) is intended to supersede prior case law that
held a timely rule 1.904(2) motion must also have been “proper” to
extend the time for appeal. See, e.g., Hedlund v. State, 875 N.W.2d
720, 725 (Iowa 2016). To obviate controversies over whether a rule
1.904(2) motion tolls the time for appeal, rule 6.101 authorizes any
timely rule 1.904(2) motion to extend the appeal deadline, subject to
an exception for successive motions.
Under rule 6.101[(1)](c), the timely filing of a rule 1.904(2)
motion extends the deadline for filing a notice of appeal or an
application for interlocutory appeal. See Iowa R. App. P. 6.101(1)(b)
& 6.104(1)(b)(2).

At the same time the noted changes to the rules of appellate procedure were made,

changes were also made to Iowa Rule of Civil Procedure 1.904 to clarify that

Hedlund’s “proper motion” requirement no longer applies.7

7 The amendments to rule 1.904 also took effect March 1, 2017. The amendments
included a modification to rule 1.904(2) to add “reconsidered” to the list of actions
the district court could take in response to a motion under the rule—joining
“enlarged” or “amended.” The amendments also added new subrules 1.904(3)
and 1.904(4) to address motions directed at other orders besides a trial ruling and
successive motions. The published comments to rule 1.904 following the
amendments echoed the comments accompanying the changes to the rules of
appellate procedure:
8

The amended rules of civil and appellate procedure that removed Hedlund’s

“proper motion” requirement became effective long before any of the relevant

action in this case. Based on those rules, the estate’s rule 1.904(2) motion

extended the appeal deadline to thirty days after the ruling on the motion. As there

is no dispute the estate’s notice of appeal met that deadline, this appeal is timely

and we have jurisdiction to hear it.

III. Summary Judgment Analysis

We review the grant of a motion for summary judgment for correction of

errors at law. Iowa Ass’n of Bus. & Indus. v. City of Waterloo, 961 N.W.2d 465,

470 (Iowa 2021). “[W]e view the record in the light most favorable to the

nonmoving party and allow that party all reasonable inferences that can be drawn

from the record.” Wernimont v. Wernimont, 686 N.W.2d 186, 189 (Iowa 2004). In

viewing the evidence in that manner, a motion for summary judgment should only

be granted if:

the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show that there
is no genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law.

Rules 1.904(3) and 1.904(4) supersede prior case law that
held a timely rule 1.904(2) motion must also have been “proper” to
extend the time for appeal. See, e.g., Hedlund v. State, 875 N.W.2d
720, 725 (Iowa 2016). To obviate controversies over whether a rule
1.904(2) motion tolls the time for appeal, the rule authorizes any
timely rule 1.904(2) motion to extend the appeal deadline, subject to
one exception in rule 1.904(4) [addressing successive motions].
Under rule 1.904, the timely filing of a rule 1.904(2) motion
extends the deadline for filing a notice of appeal or an application for
interlocutory appeal. See Iowa R. App. P. 6.101(1)(b) &
6.104(1)(b)(2).
9

Otterberg v. Farm Bureau Mut. Ins. Co., 696 N.W.2d 24, 27 (Iowa 2005) (quoting

Iowa R. Civ. P. 1.981(3)).

The medical professionals contend summary judgment was properly

granted because the claim is barred by the statute of repose. Linda’s estate, on

the other hand, contends there are factual disputes surrounding whether there was

fraudulent concealment in this case, which the estate asserts would trigger an

exception to the statute-of-repose defense.

Iowa’s statute of repose as it relates to medical malpractice claims is set

forth in Iowa Code section 614.1(9) as follows:

[I]n 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 unless a
foreign object unintentionally left in the body caused the injury or
death.

Iowa Code § 614.1(9)(a). “Unlike the statute of limitations, under which a claim

accrues for injuries caused by medical negligence when the plaintiff knew, or

through the use of reasonable diligence should have known, of the injury, a statute

of repose runs from the occurrence of the act causing the injury.” Est. of Anderson

v. Iowa Dermatology Clinic, PLC, 819 N.W.2d 408, 414 (Iowa 2012). Here, there

is no dispute Linda’s estate did not file suit within six years of the claimed act of

malpractice that is alleged to have resulted in Linda’s injury (i.e., Dr. Grossman’s

alleged failure to inform Linda of the kidney mass in 2009). As a result, the statute

of repose is a complete defense to the estate’s claim if the medical professionals

are allowed to assert it. The estate seeks to avoid the statute-of-repose defense

by application of the doctrine of fraudulent concealment.
10

Fraudulent concealment is a common law doctrine that “developed to

‘prevent a party from benefiting from the protection of a limitations statute when by

his own fraud he has prevented the other party from seeking redress within the

period of limitations.’” Id. (quoting Christy v. Miulli, 692 N.W.2d 694, 702 (Iowa

2005)). The doctrine is a form of equitable estoppel that prevents a party from

raising a statute-of-limitations or statute-of-repose defense in certain

circumstances. Id. The doctrine survived codification of the statute of repose set

forth in section 614.1(9). Id. If the doctrine applies, it “allows a plaintiff to pursue

a claim that would be otherwise time barred under the statute of repose.” Id.; see

also Christy, 692 N.W.2d at 701 (“Equitable estoppel bars a defendant from

pleading the running of statute of limitations [or statute of repose] if the plaintiff is

induced to refrain from bringing a timely action by the defendant’s fraud,

misrepresentation, or deception.” (quoting 51 Am. Jur. 2d Limitations of Actions

§ 380 (2000))).

The district court rejected the fraudulent-concealment claim because it

viewed the medical professionals’ alleged failure to disclose Linda’s growing

kidney mass as forming the heart of both the fraudulent-concealment and the

medical-malpractice claims. True, the act of concealment must be separate from

and subsequent to the liability-producing act of malpractice. Anderson, 819

N.W.2d at 414–15. A doctor’s failure to disclose cannot be the ground of liability

as well as the basis for the fraudulent concealment. Van Overbeke v. Youberg,

540 N.W.2d 273, 276 (Iowa 1995), abrogated on other grounds by Christy, 692

N.W.2d at 700–01. If such were permitted, there would essentially be no statute

of limitations for an action regarding a doctor’s negligent failure to inform a patient
11

of something. Id. In addition to separate acts, there must be temporal separation

of the acts of negligence and the acts of concealment. Id. “[T]he concealment

must take place after the alleged acts of negligence occurred.” Id.

We do not view the alleged medical negligence and concealment as broadly

as the district court. Viewing the evidence in the light most favorable to Linda’s

estate, the negligence occurred no later than Linda’s initial visit to the Mercy

Hospital emergency room in October 2009 when a Mercy Hospital radiologist

reviewed Linda’s then-fresh CT scan, noted a kidney mass, and recommended

further evaluation, but the medical professionals failed to disclose this information

to Linda. By contrast, Linda’s estate alleges the fraudulent concealment occurred

when Dr. Grossman and the resident supervised by Dr. Grossman gained actual

knowledge of Linda’s kidney mass and concealed this information from her and

her family in multiple direct interactions following Linda’s examination in the

hospital on October 1, 2009. These interactions began when Linda and her

daughter returned to the hospital after receiving the resident’s cryptic call that “not

everything is okay” in Linda’s CT scan. Linda’s daughter testified this phone call

occurred while they were on the interstate on the way home from the hospital,

which provides the temporal break to constitute a separate act from the alleged

negligence during the initial examination in the hospital immediately prior. See id.

These interactions ended in December 2009 when Dr. Grossman discharged

Linda from her care after multiple follow-up appointments. The doctors’ failure to

inform Linda of her kidney mass despite their actual knowledge of the kidney mass

creates a fraudulent-concealment claim distinct from the medical professionals’

prior failure to inform Linda of the mass due to their negligence. In addition to
12

these concealments, Dr. Grossman’s October 6 letter to Linda’s primary care

physician, which omitted any reference to the kidney mass, is a further act of

concealment distinct from the alleged malpractice.

Having alleged acts of fraudulent concealment separate from the earlier

acts of negligence, Linda’s estate can defeat the statute-of–repose defense by

pleading and proving by “a clear and convincing preponderance of the evidence”

the following:

(1) The defendant has made a false representation or has concealed
material facts; (2) the plaintiff lacks knowledge of the true facts;
(3) the defendant intended the plaintiff to act upon such
representations; and (4) the plaintiff did in fact rely upon such
representations to [the plaintiff’s] prejudice.

Anderson, 819 N.W.2d at 414–15. Usually, a plaintiff asserting fraudulent

concealment must prove the defendant “engaged in affirmative conduct to conceal

the plaintiff’s cause of action.” Id. at 415. However, in instances where the plaintiff

and defendant are in a confidential or fiduciary relationship—such as the doctor

and patient relationship here—that requirement is relaxed. Id.

Viewing the evidence in the light most favorable to Linda’s estate, including

accepting the deposition testimony from Linda and her daughters, the record

shows a genuine issue of material fact on all four elements. Linda and her

daughter testified none of the medical professionals informed them of Linda’s

kidney mass until 2016, well after the mass was noted and follow-up recommended

in the 2004, 2006, and 2009 CT scan reports. They further testified they were

unaware of the tumor until 2016, and the late disclosure prevented Linda from

seeking cancer treatment years sooner, leading to her death from the cancer in

2019.
13

As to evidence Dr. Grossman and the resident he supervised intended

Linda to act upon their representations, the doctors’ testimony establishes they

personally knew of Linda’s kidney mass by the time they discussed her CT scan

report shortly after she initially left the hospital on October 1, 2009. They further

testified the report was so concerning they called her back into the hospital

specifically to discuss the kidney mass. Dr. Grossman testified this was only the

second time in twenty-three years he had seen a patient called back into the

emergency room after leaving the hospital. Nevertheless, Linda’s daughter

testified she and Linda spoke to the resident when they returned and he only

discussed Linda’s colitis. Regardless of the reason for this nondisclosure, viewing

the evidence in the light most favorable to Linda’s estate, Dr. Grossman knew of

the mass but did not inform Linda or her family of the mass in multiple in-person

follow-up appointments with her through her discharge in December 2009, and Dr.

Grossman did not mention the mass in the October 6 letter to Linda’s primary care

provider that otherwise described Linda’s October 1 emergency room visit and

ensuing treatment.8

While Dr. Grossman and the resident hypothesize that they likely did

disclose Linda’s kidney based on their customary practices, they cannot be sure

they did so, given that the interaction happened several years prior to their

depositions and the specifics are not dictated in their notes from Linda’s

appointments. Linda’s estate produced evidence supporting their claims, including

8 The district court disregarded the letter because it states it was “mailed before
doctor’s review.” Dr. Grossman explicitly testified he dictated the letter. Whether
the letter accurately reflects Dr. Grossman’s dictation even though the doctor did
not review it before mailing is a question for the factfinder.
14

testimony from Linda and her daughters that the medical professionals did not

inform them of Linda’s tumor before 2016. Further supporting Linda’s estate is the

contemporaneous medical records that do not explicitly say Linda or her family

were informed of the kidney mass prior to 2016 and Linda’s discharge notes from

her October 1, 2019 emergency room visit that does not mention the kidney mass.

The evidence allows differing reasonable inferences as to whether the medical

professionals failed to inform Linda and her family of Linda’s kidney mass and then

fraudulently concealed the mass from Linda and her family. These genuine issues

of material fact preclude summary judgment at this time.

III. Conclusion

Linda’s estate filed a timely notice of appeal following the ruling on the rule

1.904(2) motion. Summary judgment is not appropriate on the medical

professionals’ statute-of-repose defense because genuine issues of material fact

exist as to whether the medical professionals fraudulently concealed the kidney

mass from Linda and her estate. The conflicting evidence is for the fact finder to

resolve at trial. As such, we reverse the district court’s grant of summary judgment

and remand for further proceedings.

REVERSED AND REMANDED.