Discovery Rule as Applied to Medical Malpractice in Tennessee

trust doctorThis cause of action involved a patient who brought medical malpractice action against podiatrist who had performed foot surgery, alleging that he had improperly operated on both feet despite only receiving consent to treat right foot, and had negligently performed operation.  Here the Court had to determine whether the common law “continuing medical treatment doctrine” remained viable in Tennessee which operates to toll the statute of limitations in medical malpractice cases until the termination of treatment or the physician/patient relationship.

In 1991, Theresa Stanbury worked on the assembly line at the Saturn Corporation in Spring Hill, Tennessee. She developed a corn on the fifth toe of her right foot which caused discomfort while she stood during her ten hour shift. A physician removed the corn and recommended that Stanbury consult a podiatrist. On November 22, 1991, Stanbury met with Dr. Brian Bacardi. After a cursory examination, Dr. Bacardi recommended a minor surgical procedure to prevent the fifth toe on Stanbury’s right foot from lying on top of her fourth toe. Dr. Bacardi assured Stanbury that recovery time following the surgery would be short and her work schedule would not be interrupted. Stanbury asserted that she was not informed about the nature of these procedures and that she did not know that she had consented to surgical procedures on both her feet. Stanbury said that she did not knowingly consent to anything other than the minor procedure Dr. Bacardi had described in his office on November 22.

Although she could remember very little about the afternoon following surgery, Stanbury said that over the following days she realized that surgery had been performed on both her feet, and she described her feet as “[t]wo big white blobs.” When Dr. Bacardi removed the surgical dressing during her first office visit on December 20, 1991, nine days after surgery, Stanbury said she was in “complete and utter shock” and that she “couldn’t believe all that had been done.

Theresa Stanbury filed a malpractice action against Dr. Bacardi and Hospital Corporation of America on April 30, 1993. She alleged that Dr. Bacardi had been negligent in advising her to have surgery, in performing the surgery, and in providing her post-operative care. Stanbury also alleged that Dr. Bacardi had performed unnecessary surgery, that he had failed to obtain her consent to the surgery performed on December 11, 1991, that he had ignored her complaints of pain and infection, and that he had falsified office notes to conceal her actual condition. Dr. Bacardi responded, denying all wrongdoing and asserting that the claims were barred by the statute of limitations. At the close of the plaintiffs’ proof in the jury trial, the trial court directed a verdict in favor of Dr. Bacardi on the theories of negligent post-operative care, ignoring Stanbury’s complaints of pain and infection, and intentionally falsifying office notes to conceal her true condition.The trial court submitted to the jury the plaintiff’s claims concerning lack of informed consent, advising and performing unnecessary surgery, and negligently performing the surgeries. In response to a question which arose during jury deliberations, however, the trial court withdrew the claim for negligently performing the surgeries. The jury returned a general verdict in favor of the plaintiffs awarding Theresa Stanbury $211,000 and John Stanbury $10,000.

The defendant appealed, and the Court of Appeals reversed the judgment in favor of the plaintiffs and dismissed the complaint, finding that the claims were barred by the one year statute of limitations. The intermediate court found the continuing medical treatment doctrine inapplicable under the facts of this case, and, in addition, observed that its applicability has been eroded or eliminated in this State by judicial and legislative adoption of the discovery rule.

in Teeters v. Currey, 518 S.W.2d 512 (Tenn.1974), adopted the discovery rule for determining when the statute of limitations begins to run in medical malpractice actions. In that case, the continuing treatment doctrine was unavailable because the doctor-patient relationship had terminated approximately three years before the suit was filed. The Court held that “the cause of action accrues and the statute of limitations commences to run 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.” Teeters, 518 S.W.2d at 515. In choosing to adopt the discovery rule, this Court refused to embrace a rule of law which would require a plaintiff to sue to vindicate a non-existing wrong at a time when the injury is “unknown and unknowable.” This Court did not address the relationship between the newly adopted discovery rule and the continuing medical treatment doctrine.

Approximately six months later, the General Assembly included the discovery rule as part of the Medical Malpractice Claims Act of 1975. Now codified at Tenn.Code Ann. § 29–26–116, the legislative statute of limitations provides, in pertinent part, as follows:
(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.
(3) In no event shall any such 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.
The Court emphasized that under the discovery rule, the statute begins to run when the plaintiff knows or in the exercise of reasonable care and diligence should know, that an injury has been sustained. It is knowledge of facts sufficient to put a plaintiff on notice that an injury has been sustained which is crucial. Again, a plaintiff need not “actually know that the injury constitutes a breach of the appropriate legal standard in order to discover that he has a ‘right of action.’ ” Roe, 875 S.W.2d at 657; see also Carvell v. Bottoms, 900 S.W.2d at 29. In this case, the Court held that plaintiff was aware of facts sufficient to put a reasonable person on notice that she had suffered an injury as a result of the surgery. Court concluded that the continuing medical treatment doctrine was abrogated by adoption of the discovery rule.
About Roland

Roland was born in Nashville, Tennessee and raised in Mt. Juliet, Tennessee. The first few years he resided in Paris, France with his mother who was French. In Hendersonville, he attended Beech Senior High School where played soccer and studied in the honors curriculum. Subsequently, he pursued two majors in political science and economics while graduating in three years.

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