Jeannie Farrow v. Warren G. Reed ( 1996 )

IN THE COURT OF APPEALS OF TENNESSEE, WESTERN SECTION
AT KNOXVILLE
_______________________________________________________
)
JEANNIE FARROW, ) Knox County Circuit Court
) No. 3-494-95
Plaintiff/Appellant. )
)
VS. ) C. A. NO. 03A01-9603-CV-00089
)
WARREN G. REED,
Defendant/Appellee.
)
)
)
FILED
)
September 4, 1996
______________________________________________________________________________
Cecil Crowson, Jr.
From the Circuit Court of Knox County at Knoxville. Appellate C ourt Clerk
Honorable Wheeler A. Rosenbalm, Judge
Carl R. Ogle, Jr., Jefferson City, Tennessee
Attorney for Plaintiff/Appellant.
Debby A. Thompson,
J. Tucker Montgomery,
MONTGOMERY & THOMPSON, Knoxville, Tennessee
Attorneys for Defendant/Appellee.
OPINION FILED:
AFFIRMED
FARMER, J.
CRAWFORD, P.J., W.S. : (Concurs)
LEWIS, J. : (Concurs)
In this medical malpractice action, Plaintiff-Appellant, Jeannie Farrow (“Farrow”
or “Plaintiff”), appeals the trial court’s judgment granting the Motion for Summary Judgment
filed by Defendant-Appellee, Warren G. Reed (“Dr. Reed” or “Defendant”).
On December 31, 1991, Dr. Reed performed out-patient surgery on Farrow to
correct a dislocated second digit of her right foot. During the surgery, Dr. Reed placed a 26-
gauge monofilament wire in Farrow’s toe to hold the bones in place while they healed.
On July 26, 1994, Farrow consulted another doctor, who examined Farrow’s right
foot. The amended complaint alleges that the doctor informed Farrow that a “foreign object” had
been placed in the second digit of Farrow’s right foot and, further, that a different toe also had
been broken and/or dislocated.
On July 25, 1995, Farrow sued Dr. Reed for negligence. In her amended
complaint, Farrow alleged that Dr. Reed negligently placed a foreign object in the second digit of
Farrow’s right foot and negligently allowed the foreign object to remain there. Farrow also
alleged that Dr. Reed’s actions constituted fraudulent concealment in that Dr. Reed “never
informed [Farrow] of the foreign object or of the [additional] broken and/or dislocated toe but
instead constantly informed and advised [Farrow] that her foot was healing properly.”
Dr. Reed subsequently filed a Motion for Summary Judgment on the grounds that
Farrow’s malpractice action was barred by the three-year statute of repose contained in T.C.A.
§ 29-26-116 (1980). The trial court agreed and granted Dr. Reed’s motion.
On appeal, Farrow presents the following issue for review:
Whether the circuit judge erred in finding that the
plaintiff’s complaint was barred on the statute of limitations and
repose grounds and further finding that the foreign object and the
fraudulent concealment exception did not apply.
As pertinent, section 29-26-116 provides that:
(3) In no event shall any [malpractice] action be brought
more than three (3) years after the date on which the negligent act
or omission occurred except where there is fraudulent concealment
on the part of the defendant in which case the action shall be
commenced within one (1) year after discovery that the cause of
action exists.
(4) The time limitation herein set forth shall not apply in
cases where a foreign object has been negligently left in a patient’s
body in which case the action shall be commenced within one (1)
year after the alleged injury or wrongful act is discovered or should
have been discovered.
T.C.A. § 29-26-116 (1980).
We first reject Farrow’s contention that the “foreign object” exception saves this
action from being time-barred by the three-year statute of repose. The Supreme Court has held
that the “foreign object” exception found in section 29-26-116(4) applies only “to cases where
something never intended to be inserted at all or something only temporarily utilized was
negligently permitted to remain in a patient’s body, such as a clamp or sponge following
surgery.” Hall v. Ervin, 642 S.W.2d 724, 727 (Tenn. 1982). The exception does not apply “to
an object which [has] been deliberately implanted . . . , such as an intra-uterine contraceptive
device, a pacemaker, dental work or other devices knowingly and intentionally inserted and
intended to remain for an indefinite period of time.” Id.
Here, Dr. Reed’s uncontradicted affidavit filed in support of his Motion for
Summary Judgment stated that he intended to place the wire in Farrow’s toe during surgery and
that he intended for the wire to remain in the toe permanently. Accordingly, the “foreign object”
exception does not apply in this case.
We likewise reject Farrow’s contention that the fraudulent concealment exception
prevents her action from being time-barred. In order to establish fraudulent concealment in a
malpractice case, the plaintiff must show that “the physician had knowledge of the wrong done
and concealed such information from the patient.” Housh v. Morris, 818 S.W.2d 39, 43 (Tenn.
App. 1991). “Knowledge on the part of the physician of the facts giving rise to a cause of action
is an essential element of fraudulent concealment.” Benton v. Snyder, 825 S.W.2d 409, 414
(Tenn. 1992).
In this case, Dr. Reed’s affidavit stated that he diagnosed Farrow’s dislocated toe
by viewing x-rays taken four months after Farrow’s injury. At that time, “[n]o associated
fractures were seen.” Although Farrow’s complaint asserted that a second doctor diagnosed an
additional broken and/or dislocated toe in July 1994, the record contains no evidence that Dr.
Reed knew of the additional injury or that the injury existed in December 1991 when Dr. Reed
viewed Farrow’s x-rays and made his diagnosis. Accordingly, no evidence has been presented to
support Farrow’s fraudulent concealment theory.1
The judgment of the trial court is affirmed. Costs are assessed against Farrow, for
which execution may issue if necessary.
___________________________________
FARMER, J.
______________________________
CRAWFORD, P.J., W.S. (Concurs)
______________________________
LEWIS, J. (Concurs)
1
In Byrd v. Hall, 847 S.W.2d 208, 215 (Tenn. 1993), the Supreme Court explained the
burden placed on the nonmoving party in a summary judgment proceeding:
When the party seeking summary judgment makes a properly
supported motion, the burden then shifts to the nonmoving party to
set forth specific facts, not legal conclusions, by using affidavits or
the discovery materials listed in Rule 56.03 [T.R.C.P.], establishing
that there are indeed disputed, material facts creating a genuine issue
that needs to be resolved by the trier of fact and that a trial is therefore
necessary. The nonmoving party may not rely upon the allegations or
denials of his pleadings in carrying out this burden as mandated by
Rule 56.05.