The Court of Appeals of Tennessee at Jackson (“Tennessee Appellate Court”) held in its opinion filed on February 9, 2018 in a Tennessee medical malpractice case in which the plaintiff appealed the dismissal of her claim on the basis of the expiration of the statute of limitations and the failure to provide pre-suit notice compliant with Tennessee Code Annotated section 29-26-121(a)(3)(B): “Because the undisputed facts in the record fail to establish that decedent was aware of the alleged misdiagnosis prior to his death, we reverse the trial court’s ruling on this issue. We also determine that the trial court failed to apply the appropriate standard or adequately explain its decision regarding the plaintiff’s alleged non-compliance with section 29-26-121(a)(3)(B). We therefore vacate the dismissal of the complaint on this basis and remand for reconsideration in light of the appropriate standard.”
The Underlying Facts
On May 17, 2014, the decedent presented at the emergency room of the defendant hospital, complaining of “rib-trunk pain” and headache that resulted from a fall. The defendant physician ordered lab work and examined the decedent. The Tennessee medical malpractice plaintiff alleges that the defendant physician diagnosed the decedent with dehydration and released him to return home.
On May 18, 2014, the decedent returned to the emergency room by ambulance when he became lethargic and unresponsive. He was diagnosed with sepsis and cholecystitis.
The man died on June 14, 2014. An autopsy report dated June 18, 2014 stated that the man died as the result of septic shock and gangrenous cholecystitis.
Beginning on June 5, 2015, the administrator of the man’s estate allegedly sent pre-suit notices of the potential claim to various addresses associated with the medical providers involved with the man’s care. While some notices were mailed on June 5, 2015, additional notices were mailed as late as July 29, 2015. No notices, however, were mailed at any time prior to June 5, 2015. The plaintiff alleged that she attempted to send notices to twenty-one different health care providers.
On October 5, 2015, the plaintiff filed her Tennessee medical malpractice complaint for damages against the defendant hospital and the defendant physician, alleging that the defendant physician was negligent in failing to properly diagnose the decedent’s sepsis on May 17, 2014, and that the delay in diagnosis and treatment caused by his negligence resulted in the man’s death. The Tennessee medical malpractice complaint further alleged that the defendant hospital was vicariously liable for the defendant physician’s medical negligence.
The defendant physician raised the affirmative defense that the plaintiff’s Tennessee medical malpractice complaint was barred by the applicable statute of limitations and that pre-suit notice of the potential claim was not properly sent to him. The defendant hospital filed a motion to dismiss, or in the alternative, for summary judgment, arguing that the plaintiff failed to provide notice of her potential health care liability action within the applicable statute of limitations and that the plaintiff failed to comply with the pre-suit notice provisions of the Tennessee Health Care Liability Act (“THCLA”).
On January 17, 2017, the trial court issued an oral ruling granting summary judgment in favor of the defendants, ruling that the statute of limitations began to run on May 18, 2014, meaning that all of the pre-suit notices sent by the plaintiff were untimely, and that even if the statute of limitations did not begin to run until the autopsy report was released on June 18, 2014, the plaintiff failed to establish that she sent timely notices to the defendants pursuant to the mailing requirements of the THCLA.
The Tennessee Appellate Court Decision
The Tennessee Appellate Court stated that a Tennessee health care liability action is governed by a one-year statute of limitations, which limitations period may be extended by one hundred twenty days when proper pre-suit notice is provided to the defendant health care providers: Tenn. Code Ann. § 29-26-116 provides that the statute of limitations in a health care liability action is one year from discovery of the alleged injury; Tenn. Code Ann. § 29-26-121 provides: “When notice is given to a provider as provided in this section, the applicable statutes of limitations and repose shall be extended for a period of one hundred twenty (120) days from the date of expiration of the statute of limitations and statute of repose applicable to that provider.” Pre-suit notice, however, must be sent “within the statutes of limitations and statutes of repose applicable to the provider[.]” Tenn. Code Ann. § 29-26-121(a)(3).
The Tennessee Appellate Court stated that in the case it was deciding, no notices were sent prior to June 5, 2015 and, as such, if the statute of limitations expired prior to that date, the notices were not timely and did not serve to extend the statute of limitations. However, in order to determine the date that the statute of limitations expired, the accrual date of the plaintiff’s cause of action must be determined.
The Tennessee Appellate Court stated that while under the traditional rule, a cause of action accrues immediately upon injury, Tennessee follows the discovery rule, which provides 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 (Tenn. Code Ann. § 29-26-116 provides: “In the event the alleged injury [in a health care liability action] is not discovered within such one-year period, the period of limitation shall be one (1) year from the date of such discovery”).
Under the discovery rule, the patient’s cause of action accrues when the patient discovers not only the injury but also the source of the injury. The discovery does not, however, delay the accrual of a cause of action and the commencement of the statute of limitations until the plaintiff knows the full extent of the damages. The claim therefore accrues when the plaintiff has either actual knowledge of the claim or actual knowledge of facts sufficient to put a reasonable person on notice that he or she has suffered an injury as a result of wrongful conduct, which is referred to as inquiry notice.
In prior Tennessee cases involving misdiagnoses as the predicate for a health care liability action, Tennessee courts have repeatedly held that the cause of action accrued when the misdiagnosis or a new diagnosis was made known to the patient.
The Tennessee Appellate Court stated, “Here, there is nothing in the record beyond speculation to suggest that Decedent’s return to the emergency room on May 18, 2014, alone, should have given Decedent any cause to suspect that he had been injured by [the defendant physician’s] misdiagnosis the prior day. Rather, as Appellant points out, in the absence of proof on this issue, a reasonable inference is that Decedent believed that his return to the hospital was the result of a worsening of his dehydration, as had been previously diagnosed … Moreover, although Appellees assume that the diagnosis of sepsis and cholecystitis was communicated to Decedent on May 18, 2014, the undisputed facts contained in the record simply do not support this assumption … Rather, the undisputed facts establish only that a diagnosis was made on May 18, 2014, not that this diagnosis was in any way communicated to Decedent. While the diagnosis may in fact have been communicated to Decedent on May 18, 2014, especially given Appellant’s failure to specifically deny that such a communication occurred, the undisputed facts do not necessitate this conclusion and the burden therefore never shifted to Appellant to set forth specific facts to negate Appellees’ assertion that notice had been provided to Decedent. To hold otherwise would be to resolve a factual inference in favor of Appellees, an action that is not permitted under our summary judgment standard … the undisputed facts in the record show only that the diagnosis was made known to Decedent or his representatives on June 18, 2014, when Appellant admits that she learned of Decedent’s cause of death through the release of the autopsy report. Using this date, if Appellant gave appropriate pre-suit notice pursuant to Tennessee Code Annotated section 29-26-121, Appellant’s complaint was timely filed. The trial court’s judgment in this respect is therefore reversed.”
Pre-Suit Notice Requirement
The Tennessee Appellate Court stated that the specific requirement of section 29-26-121(a)(3)(B)(i) that a notice be mailed to the health care provider’s address as indicated on the Tennessee Department of Health website demands only substantial compliance. Thus, where the plaintiff mistakenly sent the notice to an address similar to the correct address and the medical provider did not allege that he failed to receive the notice or was prejudiced by the error, substantial compliance was met (substantial compliance will not be met, however, where the health care defendant claims lack of notice or prejudice).
The Tennessee Appellate Court remanded the present case to the trial court on the pre-trial notice issue because “it does not appear that the trial court considered substantial compliance in ruling on this issue.”
Source Shaw v. Gross, No. W2017-00441-COA-R3-CV.
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