Joseph Chidester and wife, Kathleen Chidester v. L. D. Elliston, O.D.

IN THE COURT OF APPEALS OF TENNESSEE
WESTERN SECTION AT JACKSON
FILED
Feb. 20, 1997
JOSEPH CHIDESTER and wife, )
KATHLEEN CHIDESTER, ) Cecil Crowson, Jr.
) Appellate Court Clerk
Plaintiffs/Appellants, ) Tipton Circuit No. 4193
)
VS. ) Appeal No. 02A01-9602-CV-00029
)
L. D. ELLISTON, O.D., )
)
Defendant/Appellee. )
APPEAL FROM THE CIRCUIT COURT OF TIPTON COUNTY
AT COVINGTON, TENNESSEE
THE HONORABLE JOSEPH H. WALKER, III, JUDGE
STEPHEN R. LEFFLER
LINDA D. FUTRELL
Memphis, Tennessee
Attorneys for Appellants
WILLIAM W. DUNLAP, JR.
Memphis, Tennessee
Attorney for Appellee
REVERSED AND REMANDED
ALAN E. HIGHERS, J.
CONCUR:
DAVID R. FARMER, J.
HOLLY KIRBY LILLARD, J.
In this medical malpractice action, the Plaintiffs, Joseph and Kathleen Chidester,
filed suit against the Defendant, Dr. L. D. Elliston, for failing to diagnose the Plaintiff’s
malignant tumor. The trial court granted the Defendant’s motion for summary judgment
holding that the Plaintiffs’ cause of action is barred by the one year statute of limitations.
The Plaintiffs’ have appealed the trial court’s order arguing that the statute of limitations
does not bar this action because the Plaintiffs’ cause of action did not accrue until the
Plaintiff’s malignancy recurred. For the reasons stated hereafter, we reverse the judgment
of the court below and remand.
FACTS
In February of 1992 while on vacation in Arizona, the Plaintiff developed a sinus
infection and noticed the presence of blood in his urine. The Plaintiff visited Dr. Charles
Ballanger at the Paradise Valley Emergency Center in Phoenix, Arizona. Dr. Ballanger
prescribed certain medications for the Plaintiff’s sinus infection and told the Plaintiff to visit
a doctor when he returned home concerning the presence of blood in his urine.
On March 10, 1992, the Plaintiff visited the Defendant and complained of a sinus
infection and the presence of blood in his urine. The Defendant conducted a urinalysis
which revealed both red and white blood cells in the Plaintiff’s urine. The Defendant
diagnosed the Plaintiff as having a kidney infection and prescribed several medications.
On March 17, 1992, the Plaintiff again visited the Defendant and complained of blood in
his urine. The Defendant advised the Plaintiff to remain on the medication that he had
previously prescribed. In July of 1992, blood reappeared in the Plaintiff’s urine, and the
Plaintiff visited the Defendant and again complained of the presence of blood in his urine.
The Defendant then prescribed a different medication for the Plaintiff.
On December 22, 1992, the Plaintiff sought the advice of another general practice
physician, Dr. Jeffrey May. Dr. May scheduled the Plaintiff for an intravenous pyelogram
which revealed the presence of a malignant tumor on the Plaintiff’s right kidney. Dr. May
referred the Plaintiff to a urologist, Dr. Richard Pearson, who removed the Plaintiff’s right
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kidney along with the malignant tumor attached to it on January 18, 1993.
After the removal of the Plaintiff’s right kidney, Dr. Pearson told the Plaintiff that he
should have no further problems with the malignancy since the tumor was confined to the
right kidney which was removed. Dr. Pearson examined the Plaintiff periodically in 1993
after the Plaintiff’s surgery in order to monitor the Plaintiff’s progress.
In December of 1993, Dr. Pearson performed a CAT scan on the Plaintiff which
revealed the recurrence of a malignant tumor in the area where the Plaintiff’s right kidney
with the malignancy once had been. Dr. Pearson referred the Plaintiff to an oncologist, Dr.
Schwartzberg.
In order to treat the second malignant tumor, the Plaintiff underwent a course of
chemotherapy from February through March of 1994 and a second surgery in May of 1994.
On November 10, 1994, the Plaintiffs filed their complaint.
LAW
The issue before this Court is whether the trial court erred in granting the
Defendant’s motion for summary judgment based upon the one year statute of limitations
contained in T.C.A. § 29-26-116 (1980).
This Court reviews the trial court’s grant of summary judgment de novo upon the
entire record with no presumption of correctness. Cowden v. Sovran Bank/Central South,
816 S.W.2d 741, 744 (Tenn. 1991); Foley v. St. Thomas Hosp., 906 S.W.2d 448, 452
(Tenn. Ct. App. 1995); Brenner v. Textron Aerostructures, A Division of Textron, Inc., 874
S.W.2d 579, 582 (Tenn. Ct. App. 1993). No presumption of correctness attaches to
decisions granting summary judgment because they evoke only questions of law. Foley,
906 S.W.2d at 452. Thus, we must make a fresh determination on appeal as to whether
or not the requirements of Rule 56 of the Tennessee Rules of Civil Procedure have been
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met. Id.; Hill v. City of Chattanooga, 533 S.W.2d 311, 312 (Tenn. Ct. App. 1975).
While the summary judgment procedure is not a substitute for trial, it goes to the
merits of the complaint and should not be taken lightly. Byrd v. Hall, 847 S.W.2d 208, 210
(Tenn. 1993); Jones v. Home Indem. Ins. Co., 651 S.W.2d 213, 214 (Tenn. 1983); Fowler
v. Happy Goodman Family, 575 S.W.2d 496, 498 (Tenn. 1978); Foley, 906 S.W.2d at 452.
It has been repeatedly stated by the appellate courts of this state that the purpose of a
summary judgment proceeding is not the finding of facts, the resolution of disputed factual
issues or the determination of conflicting inferences reasonably to be drawn from the facts.
Bellamy v. Federal Express Corp., 749 S.W.2d 31, 33 (Tenn. 1988). Rather, the purpose
of summary judgment is to resolve controlling issues of law. Id.
In evaluating the propriety of a motion for summary judgment, we must first
determine whether a genuine issue of material fact exists. Tenn. R. Civ. P. 56. In doing
so, we must consider the pleadings and the evidentiary materials in the light most favorable
to the movant’s opponent and draw all reasonable inferences in the opponent’s favor.
Byrd, 847 S.W.2d at 210.
In a malpractice action, the plaintiff has the burden of proving:
(1) The recognized standard of acceptable professional
practice in the profession and the specialty thereof, if any, that
the defendant practices in the community in which he practices
or in a similar community at the time the alleged injury or
wrongful action occurred;
(2) That the defendant acted with less than or failed to act with
ordinary and reasonable care in accordance with such standard; and
(3) As a proximate result of the defendant’s negligent act or
omission, the plaintiff suffered injuries which would not
otherwise have occurred.
T.C.A. § 29-26-115 (1980).
Pursuant to T.C.A. §29-26-116(a)(1), the statute of limitations for malpractice
actions is one year. However, in the event that the alleged injury is not discovered within
the one year period, the limitations period is one year from the date from which the plaintiff
discovers his or her injury. T.C.A. §29-26-116(a)(1) (1980). Thus, under Tennessee law,
a statute of limitations begins to run when the plaintiff discovers or, in the exercise of
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reasonable care and diligence for his own health and welfare, should have discovered the
resulting injury. Teeters v. Currey, 518 S.W.2d 512, 517 (Tenn. 1974); McCroskey v.
Bryant Air Conditioning Co., 524 S.W.2d 487, 491 (Tenn. 1975); Roe v. Jefferson, 875
S.W.2d 653, 656 (Tenn. 1994); Wyatt v. A-Best Products Co., Inc., 924 S.W.2d 98, 103
(Tenn. Ct. App. 1995).
In the present case, the trial court held that the Plaintiffs’ cause of action for medical
malpractice accrued in January of 1993 when the Plaintiff was told that a malignant tumor
measuring two inches in diameter was present on the Plaintiff’s right kidney. The Plaintiffs,
however, argue that their cause of action did not accrue until December of 1993 when the
Plaintiff’s cancer recurred. The Plaintiffs contend that their cause of action for medical
malpractice did not accrue in January of 1993 because the Plaintiffs suffered no damages
in January of 1993 as a result of the Defendant’s misdiagnosis. The Plaintiff’s malignant
tumor on his right kidney existed regardless of the Defendant’s misdiagnosis of the
Plaintiff’s condition. Thus, the Plaintiffs’ cause of action is not based upon the Plaintiff’s
cancer. Rather, the Plaintiffs’ complaint is based upon the metastasis of the Plaintiff’s
cancer. The Plaintiffs argue that the Plaintiff’s cancer would not have reappeared in
December of 1993 had the Defendant properly diagnosed the Plaintiff’s condition in March
of 1992. In support of their argument, the Plaintiffs present the affidavits of two physicians
who both testified that the chemotherapy treatments in February and March of 1994 and
the second surgery in May of 1994 may not have been necessary if the Plaintiff’s malignant
tumor had been detected and treated in March of 1992 by the Defendant.
Therefore, the Plaintiffs argue that they did not know or have reason to know of their
malpractice cause of action until December of 1993. The Plaintiffs contend that they were
not put on notice of any injury resulting from the Defendant’s misdiagnosis until December
of 1993 when Dr. Pearson performed a CAT scan on the Plaintiff which revealed the
recurrence of a malignant tumor in the area where the Plaintiff’s right kidney with the
malignancy once had been. Because the element of damages is essential in bringing an
action for medical malpractice, the Plaintiffs’ assert that their cause of action did not accrue
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until December of 1993 when the Plaintiffs were first put on notice of the injury resulting
from the Defendant’s misdiagnosis of the Plaintiff’s condition.
We have not yet had the opportunity to address the issue of when a medical
malpractice cause of action accrues where there is no actionable injury as a result of a
defendant’s misdiagnosis of cancer other than the metastasis or the recurrence of the
cancer. In considering this issue, we have looked to case precedent from other
jurisdictions which have addressed the same issue.
In Johnson v. Mullee, 385 So. 2d 1038 (Fla. Dist. Ct. App. 1980), the Court of
Appeals for the State of Florida confronted the same issue. In Johnson, the defendant
physician performed a breast examination on the plaintiff on September 22, 1972.
Johnson, 385 So. 2d at 1039. The defendant found “diffusely cystic areas” in the plaintiff’s
left breast but did not investigate the nature of those lumps. On March 7, 1973, the plaintiff
consulted her father, a surgeon, who examined her breast. A biopsy was performed which
revealed the existence of a malignant tumor in the plaintiff’s breast. The plaintiff underwent
a radical mastectomy on March 12, 1973. Pathology reports on the removed tissues
revealed cancer of the plaintiff’s left breast with metastasis to three auxiliary lymph nodes.
In February of 1975, a bone scan was performed upon the plaintiff which showed that the
cancer had spread to the plaintiff’s ribs and skull. The plaintiff filed her medical malpractice
cause of action on November 29, 1976. The court held that the plaintiff’s cause of action
did not accrue until February of 1975. The Johnson court reasoned as follows:
It was in February 1975 that she [the plaintiff] first learned that the
cancer had metastasized beyond the surgically removed portions.
From the evidence presented, there is no basis on which to conclude
that her cause of action should have been discovered with due
diligence prior to that time. Although she had a basis for belief that
appellee doctor [the defendant] was negligent in not discovering her
cancer, the evidence is to the effect that, had he discovered the
cancer at that time, she would have been required to undergo the
same radical mastectomy, which she later had. At the time the radical
mastectomy was performed, she had no cause of action against
appellee doctor because there was no evidence that his alleged
negligence had resulted in any harm to her. It was only in February
1975, when the cancer appeared in other parts of her body, that she
discovered her cause of action. It was only then that she could have
known she had been harmed by the alleged negligent diagnosis.
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Johnson, 385 So. 2d at 1040. Thus, the court in Johnson concluded that even though the
plaintiff knew that the defendant had misdiagnosed her condition in March of 1973, the
plaintiff’s cause of action did not accrue until February of 1975 because it was not until
February of 1975 that the plaintiff knew that she had been damaged as a result of the
defendant’s misdiagnosis.
The Illinois Appellate Court addressed the same issue in Janetis v. Christensen, 558
N.E.2d 304 (Ill. App. Ct. 1990). On April 7, 1982, the plaintiff visited the defendant and
complained of rectal bleeding. Janetis, 558 N.E.2d at 305. The defendant informed the
plaintiff that the bleeding was due to hemorrhoids and recommended no treatment. Id. at
305-6. The plaintiff visited the defendant again on July 29, 1982 because of his continual
bleeding, but the defendant diagnosed the problem as hemorrhoids and stated that “there
is nothing to worry about.” Id. at 306. In October of 1982, another physician, Dr. Moore,
examined the plaintiff. The plaintiff underwent a proctoscopy and a biopsy at Dr. Moore’s
request. In November of 1982, Dr. Moore told the plaintiff that he did have cancer but
surgery would rectify the problem. The plaintiff was admitted to the hospital the next day,
and Dr. Parenti surgically removed part of the plaintiff’s colon. Following the surgery, Dr.
Parenti told the plaintiff that “everything was all right” and that he was very pleased with the
outcome. In three subsequent visits to Dr. Parenti, “everything was going well,” and there
were no problems. In May of 1983, the plaintiff returned to Dr. Moore because he again
experienced rectal bleeding. Dr. Moore informed the plaintiff that the bleeding was due
to hemorrhoids and that there was no problem. The plaintiff returned to Dr. Moore in the
fall of 1983, and a proctoscopy examination revealed that the cancer had recurred. The
court in Janetis stated as follows:
Because [the plaintiff] was told that all the cancer was removed
in November 1982, it cannot be said as a matter of law that he
should have had knowledge of his injury or even that
defendants’ misdiagnosis caused him any harm. Not until the
fall of 1983, within two years of the date [the plaintiff] filed his
action, when the proctoscopy examination revealed the cancer
had recurred and when [the plaintiff] was informed of the
cancer’s progression, could it be found as a matter of law that
[the plaintiff] should have been aware of his injury and the
possibility that the defendants’ misdiagnosis was the cause.
Id. at 308. Although the plaintiff knew that the defendant misdiagnosed his condition in
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November of 1982, the Janetis court reversed the trial court’s grant of summary judgment
in favor of the defendant based upon the statute of limitations and held that the question
of whether the plaintiff knew or should have known of his injury and its cause before the
fall of 1983 should have been a question determined by the jury.
In Wolf v. Bueser, 664 N.E.2d 197, 201-2 (Ill. App. Ct. 1996), the court cited the
cases of Johnson v. Mullee and Janetis v. Christenson and agreed with their rationale.
The court in Wolf reversed the trial court’s order which dismissed certain negligence counts
against a defendant physician because the plaintiff could possibly prove that her cause of
action for metastasis of undiagnosed breast cancer did not accrue until the cancer
recurred. The Wolf court agreed with a line of authority holding that where there is no
actionable injury resulting from a misdiagnosis of cancer other than the metastasis or
recurrence of the cancer, a plaintiff’s cause of action accrues on the discovery of the
metastasis or recurrence. The court in Wolf stated as follows:
A cause of action accrues only when all the elements of the
cause of action are present: duty, breach, and resulting injury
or damage. Without accrual there can be no cause of action,
and there is no cause of action until injury or damage has
occurred. (internal citations omitted)
Id. at 204.
Because a cause of action for medical malpractice does not accrue until the plaintiff
can prove that he has been damaged as a result of a defendant’s negligent act or
omission, we disagree with the trial court’s order holding that the Plaintiff’s cause of action
accrued in January of 1993 when the plaintiff’s right kidney was removed. The Plaintiff was
put on notice of the defendant’s misdiagnosis of his condition in January of 1993; however,
it cannot be said as a matter of law that the Plaintiff knew or should have known that he
had been damaged as a result of the Defendant’s misdiagnosis. It is likely that the
Plaintiff’s right kidney would have had to have been removed regardless of the Defendant’s
misdiagnosis of the Plaintiff’s condition.1 Based upon the record before us, we conclude
that a genuine issue of material fact exists as to when the Plaintiff’s injury occurred and,
1
The only evidence on this issue suggests that removal of the Plaintiff’s kidney would have been
requ ired even if the D efenda nt’s initial diagnos is of the Plaintiff’s c ond ition had be en c orrect.
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hence, when the Plaintiff knew or should have known of his cause of action against the
Defendant. We, therefore, reverse the trial court’s order granting summary judgment in
favor of the Defendant based upon the statute of limitations.
The judgment of the trial court is hereby reversed and the cause is remanded.
Costs on appeal are taxed to the Appellee, for which execution may issue if necessary.
HIGHERS, J.
CONCUR:
FARMER, J.
LILLARD, J.
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