Jeannie Farrow v. Charles F. Barnett and Fort Sanders Parkwest Medical Center ( 1996 )

JEANNIE FARROW, ) Appeal No.
PLAINTIFF/APPELLANT, ) 03A01-9603-CV-00084
v. )
CHARLES F. BARNETT AND FORT ) Knox Circuit Court No.
SANDERS PARKWEST MEDICAL CENTER, ) 2-546-95
DEFENDANTS/APPELLEES. )
FILED
October 3, 1996
COURT OF APPEALS OF TENNESSEE Crowson, Jr.
Cecil
Appellate C ourt Clerk
WESTERN SECTION AT KNOXVILLE
APPEAL FROM THE KNOX CIRCUIT COURT
AT KNOXVILLE, TENNESSEE
THE HONORABLE HAROLD WIMBERLY, JUDGE
CARL R. OGLE, JR.
P.O. Box 129
Jefferson City, TN 37760
ATTORNEY FOR PLAINTIFF/APPELLANT
ROBERT H. WATSON, JR.
JOHN C. DUFFY
Watson, Hollow and Reeves, P.L.C.
1700 First Tennessee Plaza Tower
800 South Gay Street
Post Office Box 131
Knoxville, Tennessee 37901-0131
ATTORNEYS FOR DEFENDANT/APPELLEE
CHARLES F. BARNETT, M.D.
F. MICHAEL FITZPATRICK
Arnett, Draper & Hagood
2300 First Tennessee Plaza
Knoxville, Tennessee 37929-2300
ATTORNEY FOR DEFENDANT/APPELLEE
FORT SANDERS PARKWEST MEDICAL CENTER
AFFIRMED AND REMANDED
SAMUEL L. LEWIS, JUDGE
MEMORANDUM OPINION1
This is an appeal by plaintiff/appellant, Jeannie Farrow, from
two orders of the trial court which granted the motion to dismiss
filed by defendant/appellee, Charles F. Barnett, M.D. (“Dr.
Barnett”), and the motion for summary judgment filed by
defendant/appellee, Fort Sanders Parkwest Medical Center (“the
Medical Center”). In its orders, the trial court concluded that
plaintiff failed to file her action within the applicable statute
of limitations. The facts out of which this controversy arose are
as follows.
On 17 August 1995, plaintiff filed a complaint for medical
malpractice and alleged the following. Plaintiff visited Dr.
Barnett's office on 10 August 1994. He ordered plaintiff to have
an MRI performed at the Medical Center. Dr. Barnett gave plaintiff
a prescription for Xanax and told her to take the Xanax thirty
minutes prior to having the MRI performed. Plaintiff went to the
Medical Center on 18 August 1994 to have the MRI performed.2 As
ordered by Dr. Barnett, plaintiff ingested the prescribed dosage of
Xanax and the Medical Center performed the MRI. Employees of the
Medical Center placed plaintiff in a chair following the MRI
procedure and left her unattended. Plaintiff passed out because of
the effects of the Xanax and fell from the chair. She was injured
when her shoulder and other parts of her body struck the floor.
On 18 September 1995, Dr. Barnett filed a motion to dismiss
and an alternative motion for summary judgment. He claimed that
1
Court of Appeals Rule 10(b):
The Court, with the concurrence of all judges participating in the
case, may affirm, reverse or modify the actions of the trial court
by memorandum opinion when a formal opinion would have no
precedential value. When a case is decided by memorandum opinion it
shall be designated "MEMORANDUM OPINION," shall not be published,
and shall not be cited or relied on for any reason in a subsequent
unrelated case.
2
Appellants later established the actual date of the procedure was 13
August 1994.
2
plaintiff filed her claim outside the statute of limitations and
that he was entitled to a judgment as a matter of law. He also
alleged that he did not deviate from the recognized standard of
acceptable professional practice. In support of his motion, he
filed his own affidavit and a memorandum.
On 21 September 1995, the Medical Center filed a motion for
summary judgment. The Medical Center provided affidavit testimony
and numerous exhibits proving that it actually performed the MRI on
13 August 1994, not 18 August as alleged in plaintiff's complaint.
Because plaintiff filed her complaint on 17 August 1995, the
Medical Center contended she filed it outside the applicable
statute of limitations.
On 3 January 1996, the trial court entered an order dismissing
plaintiff's claims against the Medical Center. The trial court
stated: “The Court considered the . . . record as a whole, and
found that the motion was well taken and should be sustained on the
basis that the statute of limitations had expired prior to the
filing of the plaintiff's lawsuit.” On the same day, the court
entered a second order that addressed Dr. Barnett's motion to
dismiss. The court stated: “After hearing arguments of counsel,
and considering the record as a whole, the Court found the Motion
to be well taken and ruled that Plaintiff had failed to file her
action within the applicable statute of limitations.” Thereafter,
the court dismissed plaintiff's claims against both defendants.
Plaintiff filed her notice of appeal on 30 January 1996.
Plaintiff notified the court that she was appealing both the
court's orders entered on 3 January 1996. On appeal, plaintiff
raised the following issue: “Whether the circuit judge erred in
finding that the Plaintiff's complaint was barred on the statute of
limitation grounds.”
3
I. STANDARD OF REVIEW
Pursuant to the Tennessee Rules of Civil Procedure and
Tennessee case law, we must review the court's orders as if both
had granted defendants summary judgment. To explain, Rule 12 of
the Tennessee Rules of Civil Procedure provides as follows:
If, on a motion asserting the defense numbered (6) to
dismiss for failure to state a claim upon which relief
can be granted, matters outside the pleading are
presented to and not excluded by the court, the motion
shall be treated as one for summary judgment and disposed
of as provided in Rule 56, and all parties shall be given
reasonable opportunity to present all material made
pertinent to such a motion by Rule 56.
TENN. R. CIV . P. 12.02 (West 1996). Moreover, the Tennessee Supreme
Court has held that a trial court converts a Rule 12.02(6) motion
into a Rule 56 motion when it considers matters outside the
pleadings. Knierim v. Leatherwood, 542 S.W.2d 806, 808 (Tenn.
1976). A trial court, however, can “prevent a conversion from
taking place by declining to consider extraneous matters.” Pacific
E. Corp. v. Gulf Life Holding Co., 902 S.W.2d 946, 952 (Tenn. App.
1995). A matter outside the pleadings is “'any written or oral
evidence in support of or in opposition to a pleading that provides
some substantiation for and does not merely reiterate what is said
in the pleadings.'” Kosloff v. State Auto. Mut. Ins. Co., Ch. App.
No. 89-152-II, 1989 WL 144006, at *2 (Tenn. App. 1 Dec.
1989)(quoting 5 CHARLES A. WRIGHT & ARTHUR R. MILLER , FEDERAL PRACTICE AND
PROCEDURE § 1366 (1969)).
It is clear that the trial court considered matters outside
the pleadings when ruling on both the motion for summary judgment
and the motion to dismiss. Thus, the court converted the motion to
dismiss into a motion for summary judgment. In both orders, the
trial court stated that it had considered the entire record. The
record in this case contained numerous matters which did more than
reiterate what was in the pleadings. For example, the Medical
4
Center attached the affidavit of Lisa Little, the radiology
technologist who performed the MRI, and three other exhibits to its
motion for summary judgment. The affidavit and the exhibits
provided information that was not in plaintiff's complaint and
corrected information, the date of the MRI procedure, which was
stated incorrectly in plaintiff's complaint. This evidence became
part of the record. Because the trial court considered the entire
record, we must review this case and address appellant's issue
pursuant to summary judgment standards.
A trial court must grant a motion for summary judgment when
there are no genuine issues of material fact and the law entitles
the moving party to a judgment. Byrd v. Hall, 847 S.W.2d 208, 214
(Tenn. 1993). “In making its determination, the court is to view
the evidence in a light favorable to the nonmoving party and allow
all reasonable inferences in his favor.” Id. at 215. These same
principles apply to this court's review of a trial court's decision
to grant summary judgment. See Gonzales v. Alman Constr. Co., 857
S.W.2d 42, 44 (Tenn. App. 1993).
II. STATUTE OF LIMITATIONS
The applicable statute of limitations provides that medical
malpractice cases “shall be commenced within one (1) year after the
cause of action accrued . . . .” TENN . CODE ANN . § 28-3-104 (a)(1)
(Supp. 1996). In addition, the statutes also provide:
(a)(1) The statute of limitations in malpractice
actions shall be one (1) year as set forth in § 28-3
-104.
(2) In the event the alleged injury is not discovered
within the said one (1) year period, the period of
limitation shall be one (1) year from the date of such
discovery.
Id. § 29-26-116(a)(1)&(2) (1980). The Tennessee Supreme Court has
had numerous occasions to interpret and apply the language of this
5
statute.
Prior to the codification of the discovery rule, the Tennessee
Supreme Court recognized its importance in medical malpractice
cases. Teeters v. Currey, 518 S.W.2d 512 (Tenn. 1974). The
Teeters court defined when the cause of action accrues as “when the
patient discovers, or in the exercise of reasonable care and
diligence for his own health and welfare, should have discovered
the resulting injury.” Id. at 517.
Since the codification of the discovery rule, the Tennessee
Supreme Court has defined when the statute of limitations begins to
run in cases similar to the one currently before this court. As
recognized by the Tennessee Supreme Court, Tennessee Code Annotated
section 29-26-116(a) does not “specifically address what the
appropriate period of limitations would be if the alleged negligent
act is discovered within the one year period but after the date of
injury.” Hoffman v. Hospital Affiliates, Inc., 652 S.W.2d 341, 344
(Tenn. 1983). In Hoffman, the Court used the common law to “fill
in the crack left by the legislature's silence.”3 The Hoffman
court relied on Teeters and concluded that the interpretation of
when a cause of action accrues found in Teeters “fits squarely with
both the wording of the statute and prior case law.” Id. The
court then held that the discovery rule applies only when the
“plaintiff does not discover and reasonably could not be expected
to discover that he has a right of action.” Id. In addition, the
court held that the statute is tolled only when “the plaintiff has
3
Id. At the intermediate level, the Middle Section of the Court of
Appeals held that Tennessee Code Annotated section 29-26-116(a)(2), the
“savings statute,” did not apply because the plaintiff discovered the injury
within one year of the negligent act. Thus, the court concluded that the
plaintiff had one year from the negligent act in which to file his or her
complaint. Hoffman v. Hospital Affiliates, Inc., slip op. at 3-4 (Tenn. App.
1 Feb. 1982), rev'd, 652 S.W.2d 341 (Tenn. 1982). The facts of Hoffman are
similar to the present case. In this case, plaintiff claimed that she
discovered her injuries twelve to thirteen days after the negligent act.
6
no knowledge at all that a wrong has occurred, and, as a reasonable
person is not put on inquiry.” Id.
In another case, the Tennessee Supreme Court defined the date
of discovery. Foster v. Harris, 633 S.W.2d 304, 305 (Tenn 1982);
see Hoffman, 652 S.W.2d at 343. Specifically, discovery occurs
when the plaintiff discovers or reasonably should have discovered:
“(1) the occasion, the manner and means by which a breach of duty
occurred that produced his injury; and (2) the identity of the
defendant who breached the duty.” Foster, 633 S.W.2d at 305. In
a more recent opinion, the Tennessee Supreme Court held that a
plaintiff does not have to have actual knowledge “that the injury
constitutes a breach of the appropriate legal standard.” Roe v.
Jefferson, 875 S.W.2d 653, 657 (Tenn. 1994). Instead, the Court
held that the plaintiff only needs to be “aware of facts sufficient
to put a reasonable person on notice that he has suffered an injury
as a result of wrongful conduct.” Id.
To summarize, Tennessee's discovery rule prevents the statute
of limitations in medical malpractice case from beginning to run
until the plaintiff discovers or in the exercise of reasonable care
and diligence should have discovered: 1) facts sufficient to put a
reasonable person on notice that he has suffered an injury as a
result of wrongful conduct and 2) the existence or identity of a
wrongdoer. Id.; Hoffman, 652 S.W.2d at 343; Foster, 633 S.W.2d at
305. Moreover, this rule applies even if the plaintiff discovers
the injury within one year of the negligent act. Hoffman, 652
S.W.2d at 344. Finally, the rule will not apply if the plaintiff
could have reasonably been expected to discover that he or she had
a cause of action. Id.
The dates relevant to a determination of the issue in this
7
case are as follows. The first date, 10 August 1994, is the date
that Dr. Barnett prescribed what plaintiff claims was an excessive
dosage of Xanax. Next, plaintiff claims the Medical Center was
negligent on 13 August 1994, the date it performed the MRI.
Plaintiff contended that her shoulder and back were sore and that
she called the hospital on 25 August 1994. The hospital called
plaintiff back on 26 August 1994 and requested she come in for x-
rays.4 Plaintiff filed her complaint on 17 August 1995.
It is the opinion of this court that the trial court correctly
determined that the statute of limitations bars plaintiff's claims.
As previously stated, the discovery rule tolls the statute until a
person discovers or in the exercise of reasonable care should have
discovered certain facts. Assuming that plaintiff had no knowledge
of the fall, it is reasonable to expect that plaintiff would
discover the injury, at least the soreness, within a few days after
the fall. Had plaintiff exercised reasonable care and diligence
for her own health and welfare, she would have discovered facts
sufficient to place her on notice prior to 17 August 1994. Note,
the record does not contain any evidence that plaintiff was
unconscious other than when she passed out on 13 August 1994.
Plaintiff was admitted as an out-patient, and as such, she did not
remain in the hospital overnight. The record also reveals that
plaintiff claims to remember nothing about the MRI or the period
she claims Medical Center employee's left her unattended, yet she
never inquired into the reasons for her blackout. There is no
evidence that plaintiff expected the Xanax to have such an affect.
Thus, the simple fact that plaintiff did not remember the MRI or
the period thereafter should have, at the very least, put her on
notice that something was wrong and caused her to inquire further.
See Housh v. Morris, 818 S.W.2d 39, 42-43 (Tenn. App. 1991).
4
There is no evidence in the record as to what the x-rays revealed.
8
For these reasons, the trial court correctly determined that
plaintiff's claims were barred by the statute of limitations. The
judgment of the trial court is affirmed and remanded for any
further necessary proceedings. The costs on appeal are taxed to
plaintiff/appellant, Jeannie Farrow.
___________________________
SAMUEL L. LEWIS, JUDGE
CONCUR:
_____________________________
W. FRANK CRAWFORD, JUDGE
_____________________________
DAVID R. FARMER, JUDGE
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