HCLA Statute of Limitations Issue A Jury Question

A recent appeal in a claim filed under the Health Care Liability Act (HCLA) turned on when the statute of limitations began to run and whether a doctor was an employee under the Governmental Tort Liability Act (GTLA).

In Rogers v. Blount Memorial Hospital, Inc., No. E2015-00136-COA-R3-CV (Tenn. Ct. App. Feb. 29, 2016), plaintiff arrived at the Blount Memorial Hospital’s (“Hospital”) emergency room on September 8, 2012. He was treated by Dr. Bhatti (“Doctor”), who diagnosed him with and began treating him for Guillain-Barre Syndrome (“GBS”). According to plaintiff, he later found out he never had GBS, but instead had a spinal abscess, and the delay in diagnosis and treatment of the abscess “resulted in permanent and irreplaceable spinal cord damage.”

Plaintiff sent pre-suit notice of this suit to the hospital on August 20, 2013, and to the doctor on October 7, 2013. The complaint was then filed on December 13, 2013. Both defendants filed motions for summary judgment, both of which were granted by the trial court for different reasons.

For the doctor, the trial court granted summary judgment based on the statute of limitations, finding that plaintiff “was aware of facts sufficient to place a reasonable person on inquiry notice that he had suffered an injury as a result of Dr. Bhatti’s alleged misdiagnosis” on September 13, 2012, or at least by October 5, 2012. According to the trial court, plaintiff’s pre-suit notice sent on October 7, 2013, was thus sent outside the statute of limitations. Plaintiff argued, though, that “he had no reason to suspect that the initial diagnosis of GBS was incorrect until he was informed by another medical practitioner in mid-October 2012 that he never had GBS.” Plaintiff asserted that although he had continuing symptoms and was told in the hospital that he would be treated for a spinal abscess, he thought the symptoms and abscess were consequences of the GBS and was never told otherwise.

In making its ruling, the trial court looked at evidence presented by defendant doctor that plaintiff signed a consent form for a spinal abscess evacuation procedure on September 13, 2012; that plaintiff allegedly told a nurse at a different facility on October 5, 2012 that he had been diagnosed with GBS and “then found out he had an abscess;” and that plaintiff admitted that after the spinal procedure his symptoms began to improve. The Court of Appeals, however, disagreed that these facts showed that plaintiff had inquiry notice of his claim by at least October 5th, instead ruling that a genuine issue of material fact existed and that summary judgment was not appropriate.

The Court stressed that in determining when an HCLA statute of limitations begins to run, “knowledge of facts sufficient to put a plaintiff on notice that an injury has been sustained is crucial,” and “[s]uch knowledge includes not only an awareness of the injury, but also the tortious origin or wrongful nature of that injury.” (internal citations and quotations omitted). In the present matter, the Court reasoned:

As a reasonable lay person, [plaintiff] could have believed that his worsening symptoms and the presence of a spinal abscess were simply part of the natural progression of GBS. [Plaintiff] contends that he did not and could not have known that the GBS diagnosis was incorrect until he was informed of this fact by a medical professional in mid-October 2012. Although we recognize that there is no requirement of diagnosis of the actual injury by another medical professional, (citation omitted), we determine that in this situation it was reasonable for [plaintiff], a layperson, to conclude that his symptoms and the treatments given were related to the GBS diagnosis until such time as he was informed otherwise.

Addressing each of the facts put forth by defendant, the Court found that plaintiff signing the consent form and experiencing improved symptoms after the abscess procedure did not negate plaintiff’s “reasonable belief that the abscess was caused by or related to GBS.” Further, as to plaintiff’s alleged statements to the nurse on October 5, 2012, the Court found that the statement that he was diagnosed with GBS and then they found he had an abscess did not affect his belief that the abscess was causally related to the alleged GBS. Because there was an issue of fact regarding when plaintiff was aware of his claim, the Court ruled that the matter should have gone to the trier of fact and the summary judgment ruling was reversed.

For the hospital, the trial court granted summary judgment based on 3 grounds: 1) statute of limitations, 2) “failure to allege in the complaint that [hospital] was a governmental entity and that Dr. Bhatti was an employee working within the scope of his employment,” and 3) “unrefuted evidence that Dr. Bhatti was not an employee of [hospital].” The Court of Appeals affirmed summary judgment, though it did so only on the second and third grounds, not addressing the statute of limitations argument.

The Court noted that it was undisputed that the hospital was a governmental entity, and that therefore it would be immune from suit under the GTLA unless this case fell under a situation in which immunity was expressly removed. The only potentially applicable exception here was that immunity is removed when “injury [is] proximately caused by a negligent act or omission of any employee within the scope of his employment.” Tenn. Code Ann. § 29-20-205. Here, though, the hospital filed an affidavit stating that the doctor “was not and had never been an employee” of the hospital. Plaintiff offered no contradictory evidence. The Court held, then, that the hospital “conclusively established that Dr. Bhatti was not an employee, such that immunity could not be removed on that basis. In the absence of a basis for removal of immunity, the trial court properly determined that [hospital] was immune from suit.”

One thing to note regarding this ruling is that plaintiff here also argued that summary judgment for the hospital was inappropriate because the trial court refused him additional time for discovery regarding the doctor’s employment status. The Court pointed out that plaintiff’s counsel orally made such a request to the trial court but never filed a motion to that effect. Further, in the time between the March 24, 2014 entry of summary judgment for hospital and the January 9, 2015 final order in this case, no additional evidence was discovered and presented to the court. According to the Court of Appeals, “[i]f [plaintiff] had discovered any countervailing evidence regarding either [hospital] or Dr. Bhatti’s legal status during that time period, [plaintiff] had ample time to file a motion and present that evidence to the court or otherwise request additional discovery.”

This case is both promising and a cautionary tale for plaintiff’s lawyers filing HCLA claims. As the claim against the hospital illustrates, plaintiffs must be diligent in identifying defendants, figuring out whether any are governmental entities falling under the GTLA, and pleading and presenting evidence accordingly. Failure to make a case for removal of immunity under the GTLA will result in summary judgment for governmental entities.

The Court’s analysis of the claim against the doctor, though, is more promising for plaintiffs and was a good decision by the Court. Here, plaintiff was told he had GBS then was subsequently treated for a different ailment, but was never told that the original diagnosis was wrong or non-existent. He continued to believe he was suffering from and being treated for GBS, and as a non-medical professional that belief was totally reasonable. In a situation like the one presented here, when a person is diagnosed with a syndrome, it is at least arguably reasonable for them to think additional problems are causally related to that syndrome. To hold otherwise would hold patients to an incredibly high level of inquiry with their doctors, requiring extensive questioning by patients regarding each additional problem discovered during a course of treatment.