§42.6 Discovery Rule in Medical Negligence Cases

The Case: Stanbury v. Bacardi , 953 S.W.2d 671 (Tenn. 1997).

The Basic Facts: Plaintiff filed medical malpractice action more than one year after the alleged negligent act.

The Bottom Line:

  • "... the General Assembly included the discovery rule as 676 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.
    Tenn. Code Ann. § 29-26-116 (1980). The statute of limitations has several key elements. Section 1 grants an injured party one year within which to bring suit after the cause of action has accrued. If an injury is not discovered within the one year time period, Section 2 allows the injured party one year within which to bring suit from the date of discovery, but Section 3 (a statute of repose) imposes a three-year ceiling upon that right. If there is fraudulent concealment on the part of the physician or if a foreign object has been negligently left in a patient's body by the physician, as was the case in Frazor, supra, the injured party is entitled to commence a lawsuit within one year after discovery of the fraudulent concealment or foreign object. Hoffman v. Hospital Affiliates, Inc., 652 S.W.2d 341 (Tenn. 1983)." 953 S.W.2d at 676-77.
  • "We begin our analysis of this issue with the principle that the statute of limitations commences to run when the patient knows or in the exercise of reasonable care and diligence should know, that an injury has been sustained. Teeters, 518 S.W.2d at 515; see also Wyatt v. A-Best, Co., Inc., 910 S.W.2d 851, 854 (Tenn. 1995). In other words, the statute of limitations in a medical malpractice case is tolled until the plaintiff 'discovered, or reasonably should have discovered, (1) the occasion, the manner, and the means by which a breach of duty occurred that produced his injuries; and (2) the identity of the defendant who breached the duty.' Foster v. Harris , 633 S.W.2d 304 (Tenn. 1982) . However, it is not necessary that the plaintiff
    actually know that the injury constitutes a breach of the appropriate legal standard in order to discover that he has a 'right of action;' the plaintiff is deemed to have discovered the right of action if he is aware of facts sufficient to put a reasonable person on notice that he has suffered an injury as a result of wrongful conduct.
    Roe v. Jefferson , 875 S.W.2d 653, 657 (Tenn. 1994) ; see also Carvell v. Bottoms, 900 S.W.2d 23, 29 (Tenn. 1995)." Id. at 677.
  • "Applying that standard to the facts in this case, it is clear that the plaintiff's medical malpractice lawsuit is time-barred. Dr. Bacardi performed surgery on Theresa Stanbury's feet on December 11, 1991. A few days after surgery, Stanbury realized that both feet were bandaged and she described them as '[t]wo big white blobs.' Stanbury maintains that she knowingly consented to surgery on her right foot only. According to Stanbury, she had no medical problems with her left foot prior to the surgery performed by Dr. Bacardi. When she questioned Dr. Bacardi about the reason for the surgery, Stanbury said she received a very vague response. Based on the record, it appears that shortly after the surgery, Stanbury was aware of facts sufficient to put a reasonable person on notice that she had suffered an injury as a result of wrongful conduct. Not only was she aware of the occasion, manner, and means by which the breach of duty producing her injuries occurred, she also knew the identity of the person who breached the duty." Id.

  • "Even assuming that her claim for lack of informed consent is barred by the statute of limitations, the plaintiff maintains that she had not discovered her claim of unnecessary surgery until she was informed by another health care professional that Dr. Bacardi deviated from the standard of care for podiatrists by failing to follow a conservative treatment regime before recommending surgery. Since she filed suit within one year of receiving that information, Stanbury argues that her claim was timely filed. We disagree." Id.

  • "We emphasize 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 other words, a plaintiff need not actually know the specific type of legal claim he or she has so long as the plaintiff is 'aware of facts sufficient to put a reasonable person on notice that he has suffered an injury as a result of wrongful conduct.' Id. In this case, the 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. Advice from another health care professional that a claim exists is not a prerequisite to accrual of a medical malpractice cause of action. In fact, we have specifically rejected such a requirement in the context of medical and legal malpractice actions. Roe, 875 S.W.2d at 658; Carvell, 900 S.W.2d at 29. Even assuming Tennessee applied such a rule, which it does not, in this case the plaintiff's assertion that she was unaware of her claim for unnecessary surgery until advised by another health care professional is unpersuasive because she was not so advised until after she filed the complaint in this case alleging unnecessary surgery. Stanbury knew or reasonably should have known that she had a right of action against the defendant, at the latest, by the time of the February, 1992 office visit, when she realized that the fifth toe on her foot was not in a normal position. However, more than fourteen months had passed before suit was filed on April 30, 1993. Accordingly, the plaintiff's lawsuit is time-barred." Id. at 678.

Other Sources of Note: Tenn. Code Ann. § 29-26-116; Hoffman v. Hospital Affiliates, Inc., 652 S.W.2d 341, 344 (Tenn. 1983) (holding one-year statute of limitations for medical negligence actions begins to rule on the date of discovery notwithstanding that the discovery occurred within one year from the date of the alleged negligence).

Recent Cases: 

Speck v. Woman’s Clinic, PA, No. W2012-02111-COA-R3-CV, 2013 WL 5296886, 2013 WL 5296886 (Tenn. Ct. App. Sept. 18, 2013) (holding in wrongful pregnancy case that where plaintiffs thought wife was pregnant based on atypically late menstrual cycle and two home pregnancy tests, but did not send notice letters until one year from the date wife saw physician to confirm pregnancy, which was three days after she took the first home pregnancy test, trial court properly granted summary judgment to defendant based on expiration of statute of limitations; statute of limitations began to run upon taking home pregnancy test).

Sherrill v. Souder , No. W2008-00741-COA-R3-CV, 2009 WL 4993377 (Tenn. Ct. App. Feb. 27, 2009) (upholding summary judgment finding that, based on the discovery rule, the one year statute of limitations had expired prior to plaintiff's complaint); Holliman v. McGrew, No. W2008-00907-COA-R3-CV, 2009 WL 302276 (Tenn. Ct. App. Feb. 5, 2009) (upholding summary judgment finding that, based on the discovery rule, plaintiff's lawsuit was not timely filed).

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The foregoing is an excerpt from Day on Torts: Leading Cases in Tennessee Tort Law, published by John A. Day, Civil Trial Specialist, Fellow in the American College of Trial Lawyers, recipient of Best Lawyers in America recognition, Martindale-Hubbell AV® Preeminent™ rated attorney, and Top 100 Tennessee Mid-South Super Lawyers designee. Read John’s full bio here.

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