June 6, 2020

The Court of Appeals of Tennessee at Nashville (“Tennessee Appellate Court”) held in its opinion filed on March 11, 2020 in a Tennessee medical malpractice case, “Based on the undisputed facts, we conclude that Ms. Tucker’s claims against these defendants are barred by the statute of repose. Fraudulent concealment does not apply … one essential element of the fraudulent concealment exception is missing here. The defendants must have been “aware of the wrong” … And Ms. Tucker failed to come forward with proof of actual knowledge or any other evidence from which a reasonable juror could infer actual knowledge.”

The Tennessee Appellate Court held such despite also finding, “Viewing the facts in the record in Ms. Tucker’s favor, a reasonable juror could find that Nurse Iveson failed to update her information on file with the Board of Nursing and provided false and misleading information in response to Ms. Tucker’s requests for admission. And Ms. Tucker did not discover the fraudulent concealment until December 2012.”

The Underlying Facts

The Tennessee medical malpractice plaintiff, Ms. Tucker, was suffering from a bad cough on December 24, 2009, which she believed was caused by bronchitis, for which she sought treatment from Nurse Iveson, who was suggested to the plaintiff by her friend. Nurse Iveson wrote Ms. Tucker a prescription for an antibiotic, oral steroids, and an asthma inhaler. The prescription was written on a preprinted prescription pad from a clinic which was given to the plaintiff’s friend in a bank parking lot. Nurse Iveson had never met or treated Ms. Tucker previously, and she never personally examined Ms. Tucker before prescribing the medications.

Ms. Tucker alleged in her Tennessee medical malpractice lawsuit that Nurse Iveson never told her that one potential side effect of the antibiotic was tendonitis or that the risk of tendonitis increased if the antibiotic was taken with steroids. Within a few days, Ms. Tucker began experiencing arm and shoulder pain, which are symptoms of tendonitis. On January 25, 2010, Ms. Tucker’s physician informed her that the most likely cause of her condition was the medication prescribed by Nurse Iveson.

The Tennessee Board of Nursing indicated that Nurse Iveson’s supervising physician was Dr. Burton Sanders. However, the information on file with the Board of Nursing was out of date: Nurse Iveson’s supervising physician was Dr. Phillip Newman as of December 24. 2009. Once Ms. Tucker’s Tennessee medical malpractice lawyer discovered that he was mistaken as to the identity of Nurse Iveson’s supervising physician, he sought permission to add Dr. Newman as a party instead of Dr. Sanders. In response to Ms. Tucker’s requests for admissions, Nurse Iveson denied that Dr. Newman was her supervising physician on the relevant day. In reliance on Nurse Iveson’s responses, Ms. Tucker only named Nurse Iveson and Walgreen Co. as defendants in the second amended complaint. During her deposition, Nurse Iveson identified Dr. Phillip Newman as her supervising physician when she prescribed medication to Ms. Tucker and acknowledged that her responses to the requests for admissions were false.

On January 17, 2013, Ms. Tucker filed her third and final amended complaint that asserted for the first time claims against Dr. Newman and Middle Tennessee Ear Nose & Throat, P.C. (the entity doing business as Sun Medical Express Walk In Clinic in 2009). Nurse Iveson and Walgreen Co. were also named as defendants.

Dr. Newman and Middle Tennessee ENT filed motions to dismiss, arguing that the claims against them were untimely and in violation of the pre-suit notice provisions of the Tennessee Medical Malpractice Act. Tenn. Code Ann. §§ 29-26-116, -121(a)(1) (2000 & Supp. 2010). Ms. Tucker responded that Nurse Iveson’s fraudulent concealment of the identities of these defendants had tolled the running of the statutes of limitations and repose and constituted extraordinary cause to waive pre-suit notice.

The trial court granted summary judgment to Middle Tennessee ENT and Dr. Newman, finding that Nurse Iveson was not acting in the course and scope of employment when she treated Ms. Tucker. So as a matter of law, her employer and supervising physician could not be held vicariously liable for her actions. For this same reason, the trial court found that these defendants could not be held liable for negligent hiring or supervision. Alternatively, the court ruled that Ms. Tucker’s claims for negligent hiring and supervision must be dismissed because she failed to come forward with competent expert proof, as required by the Medical Malpractice Act.

Tennessee Appellate Court Opinion

The Tennessee Appellate Court held: “We conclude that Ms. Tucker’s negligent hiring and supervision claims are substantially related to medical treatment or expertise. The negligent hiring and supervision claims implicate Middle Tennessee ENT’s duty to ensure that its patients receive quality care from competent medical practitioners … And the claim that Dr. Newman failed in his duty to properly supervise Nurse Iveson requires evaluation of his medical judgment.”

The Tennessee Appellate Court stated that the Tennessee Medical Malpractice Act’s statute of repose places an absolute three-year limit upon the time within which malpractice actions can be brought: “So while the statute of limitations does not begin to run until the plaintiff’s cause of action has accrued, the same cannot be said for the statute of repose.”

The Tennessee Appellate Court stated, “Here, any alleged negligence occurred, at the latest, by December 24, 2009. And Ms. Tucker did not file her malpractice action against these defendants until January 17, 2013, more than three years later. So the defendants established their statute of repose defense. The burden of proof then shifted to Ms. Tucker to establish an exception.”

Fraudulent Concealment Exception

The Tennessee medical malpractice statute of repose for malpractice actions includes an exception within the statute itself — fraudulent concealment by the defendant. The Tennessee Appellate Court stated that the fraudulent concealment exception cannot apply unless Ms. Tucker can establish that: (1) the defendants took affirmative action to conceal their identities; (2) she could not have discovered their identities in the exercise of reasonable care and diligence; (3) the defendants knew about the facts giving rise to Ms. Tucker’s cause of action and the identity of the wrongdoer; and (4) the defendants concealed material information by withholding information or resorting to trickery.

The Tennessee Appellate Court held that because Ms. Tucker could not establish that these defendants were aware of the wrong, she could not prevail on her fraudulent concealment claim (“neither defendant was aware of this malpractice action until they were served with process in 2013. Having no knowledge of a wrongful act or their potential liability, they had nothing to conceal … Because Ms. Tucker filed her malpractice action against Dr. Newman and Middle Tennessee ENT more than three years after the negligent act occurred, her claims are barred by the statute of repose. And undisputed facts show that she cannot establish all the elements of fraudulent concealment. So we affirm the trial court’s grant of summary judgment to Dr. Newman and Middle Tennessee ENT, albeit on different grounds”).

Source Tucker v. Iveson, No. M2018-01501-COA-R3-CV.

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