Fraudulent Concealment: What Was Hidden From You Matters

What they didn’t tell you could be the heart of your case

We hear a lot in the news about fraud. Usually it involves corporations, shareholders, and maybe some other businesses and businesspeople whom we don’t pay a lot of attention to… because most of us usually don’t have to. 

But there are ways that fraud, or fraudulent concealment, could affect you—even in a personal injury lawsuit. Most people think of fraud as an outright lie. But you’ve probably heard the phrase “lie of omission.” That’s when people deceive by hiding something; if you were once a five-year-old—or a teenager—you’ve likely done this (wink, wink). But a five-year-old who just shrugs when asked who wrote on the wall while hiding the crayon behind their back, is not the same as a doctor who covers up a surgical mistake, a manufacturer that buries internal reports about a dangerous defect, or a property owner who paints over a hazard.

For the victim of an injury, fraudulent concealment matters in two ways:

1. It can be its own claim, for which they may recover damages; or
2. It can extend the deadline to file a lawsuit that might otherwise have run out.

What is fraudulent concealment?

Each state has its own set of requirements for what constitutes fraudulent concealment, but there are some general guidelines. The court would typically require proof that:

• The defendant concealed or suppressed a material fact. It must be a fact that would matter to a reasonable person making a decision. 
• The defendant had a duty to disclose the information. 
• The defendant hid the information intentionally. In other words, they had the intent to deceive, or to cause the plaintiff to act or not act. 
• The plaintiff did not know the fact, and they would have acted differently if they’d known. 
• The plaintiff was harmed because the fact was concealed.

When is there a duty to disclose?

The second element of fraudulent concealment is often the deciding factor. In general, a person isn’t obligated to volunteer every piece of information. But under Restatement (Second) of Torts § 551, there are a couple of ways a duty to disclose might arise:

• There is a fiduciary or confidential relationship, such as doctor and patient or attorney and client. 
• The defendant didn’t tell a “half-truth”. The person sharing facts may not leave out a particular fact, the absence of which makes the statement misleading. 
• New information makes an earlier statement false, and the speaker believes the plaintiff still relies on the previous set of facts. 
• A basic fact of the transaction is hidden, which the other side could not reasonably discover and would expect to be told.

Examples of fraudulent concealment in personal injury lawsuits

Medical malpractice

A provider hides a retained surgical instrument, misread lab results, or a medication error. This results in the patient not receiving timely treatment.

Product liability

A company hides internal test data or complaint reports that show its product can cause serious injury

Premises liability

A landlord or seller covers up known mold, lead paint, or structural damage.

Institutional abuse

An organization hides prior complaints about an employee’s misconduct.

How do you extend your filing deadline because of fraudulent concealment?

Every injury has a statute of limitations, which is the deadline by which your lawsuit must be filed. If you miss the deadline, the court will decline to hear the case. Each state has its own statutes of limitations, which depend on the type of injury. There are exceptions, such as lawsuits where the victim is a child. Fraudulent concealment is another important exception. 

Bailey v. Glover, a U.S. Supreme Court case from 1874 (that’s not a typo—it’s a 150-year-old case), was the first to recognize the principle of fraudulent concealment. The Bailey court held that when a party’s fraud has kept the injured person unaware of their claim, the statute of limitations period does not begin to run until the fraud is discovered. Normally, the “clock” begins to run on the date of the injury. 

Nearly a century later, in 1946, the Court confirmed in Holmberg v. Armbrecht that this doctrine would be included in every federal statute of limitations. 

Most states apply a similar rule, either by court decisions or by statute. Many state medical malpractice laws include specific tolling (i.e. delay) provisions for concealment. In essence, if an injured person learned recently that something relevant to the facts of the case was hidden from them, they should not assume it’s too late to file a lawsuit. The court would likely require a plaintiff to demonstrate they acted with reasonable diligence, once they had a reason to suspect the truth—so, it’s important to act quickly after learning the new information.

Preparing for a fraudulent concealment lawsuit

Concealment is a form of fraud, which means it’s held to heightened standards in federal court. The Federal Rules of Civil Procedure require fraud to be stated “with particularity” (Fed. R. Civ. P. 9(b)), and this is also the law in many state courts. 

Some jurisdictions also require proof by clear and convincing evidence. This is a higher standard than the usual burden of proof. This requires the plaintiff to establish that a particular claim is substantially more likely than not to be true. In other words, the fact finder must be convinced that the contention is highly probable.

Evidence that could help prove concealment includes (but is not limited to):

• Medical records, especially amended or missing entries
• Internal company documents, recall notices, and government safety reports
• Correspondence that shows what the defendant knew, and when
• Inspection reports, repair invoices, and photographs
• A timeline of when and how the victim discovered the truth

If you’re the victim of an injury, and you discover something you believe could’ve been fraudulently concealed, make notes of key dates and information while they are still fresh in your memory.

What should you do with the information you discover?

DON’T try to be an armchair detective or lawyer.
DO tell your lawyer what you’ve learned. 

If you suspect that important information about your injury, medical care, or a dangerous product or property was withheld from you, contact your lawyer (or find a lawyer) immediately. Your attorney will assess whether the other party had a duty to inform you, whether their silence supports a separate claim, and whether concealment might have extended your time to file. Being kept in the dark should not cost you your rights.