Discovery Rule Applied in Tennessee Health Care Liability Act Case

In a misdiagnosis Tennessee health care liability (medical malpractice) case, defendants seeking dismissal based on the statute of limitations were required to “establish that decedent was aware of the alleged misdiagnosis,” not just show that the misdiagnosis was made, in order to establish when the one-year limitation period began to run.

In Shaw v. Gross, No. W2017-00441-COA-R3-CV (Tenn. Ct. App. Feb. 9, 2018), plaintiff was the administrator of decedent’s estate, and the case involved allegations that decedent died as the result of a misdiagnosis. Decedent went to the emergency room on May 17, 2014, complaining of “rib-trunk pain and headache that resulted from a fall.” Defendant doctor ordered lab work and diagnosed decedent with dehydration, sending him home. Decedent returned the next day via ambulance and was diagnosed with sepsis and an inflamed gallbladder. Decedent died less than a month later, on June 14, 2014, and an autopsy report on June 18th confirmed his cause of death as “septic shock and gangrenous cholecystitis.”

Plaintiff began sending pre-suit notices for this HCLA claim on June 5, 2015, and she filed her complaint on October 5, 2015. Defendants moved for summary judgment based on the statute of limitations, arguing that the one-year period began running on May 18, 2014, the day the misdiagnosis was discovered. Because plaintiff’s pre-suit notices were sent more than one-year after this date, defendants asserted that plaintiff was not entitled to a 120-day extension of the statute of limitations under the HCLA, and that her complaint was thus untimely.

The trial court agreed with defendants, holding that the statute of limitations began to run on May 18, 2014. Further, the trial court ruled that “even if the statute of limitations did not begin to run until the autopsy report was released on June 18, 2014, [plaintiff] failed to establish that she sent timely notices to [defendants] pursuant to the mailing requirements of the THCLA.” The Court of Appeals reversed the first holding and vacated the second “for reconsideration in light of the appropriate standard.”

The Court of Appeals first looked at the statute of limitations issue. The Court noted that, pursuant to the discovery rule, a “claim 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 has suffered an injury as a result of wrongful conduct.” (internal citation omitted). While the defendants here argued that the undisputed facts showed that the alleged misdiagnosis occurred on May 18th, and that “Decedent was provided with sufficient facts as of May 18, 2014 to determine both the occasion, the manner and means by which a breach of duty occurred and the individual who committed the breach,” the Court disagreed.

Instead, the Court focused on the lack of evidence that decedent was made aware of the misdiagnosis, noting that nothing in the record “indicates that the diagnosis of sepsis and cholecystitis was ever actually communicated to Decedent on this date.” The Court stated:

[A]t the very least, Defendant must point to undisputed facts showing Decedent knew of should have known that a misdiagnosis had been made the prior day, which is often met where a new diagnosis is communicated to the patient to put him or her on notice that he was previously misdiagnosed. Indeed, in cases cited 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.

Here, defendant had pointed to nothing in the record indicating that decedent was told about the new diagnosis, and there were “no depositions or affidavits from medical professionals who treated decedent on May 18, 2014 or from any friends of family members who may have been present at the hospital on that date.” Accordingly, the Court held that the facts only established that “the diagnosis was made known to decedent or his representatives on June 18, 2014, when [plaintiff] admits that she learned of Decedent’s cause of death through the release of the autopsy report.” When using this date, the complaint was timely filed, and dismissal based on the statute of limitations was therefore reversed.

Next, the Court of Appeals looked at the trial court’s ruling that plaintiff had failed to meet the pre-suit notice mailing requirements of the HCLA. First, the Court pointed out that “the manner and proof of service requirements…can be achieved through substantial compliance.” (internal citation omitted). In addition, the requirement that a plaintiff send the notice to the defendant’s address as it is listed on the Department of Health website also requires substantial compliance, and that requirement is met even if plaintiff mistakenly writes the wrong address but the medical provider does not allege that they “failed to receive the notice or was prejudiced by the error.”

In both its written and oral ruling here, the trial court simply included “a single conclusion…[that] Appellant failed to properly mail notice letters to Dr. Gross and the Hospital pursuant to the requirements of Tenn. Code Ann. § 29-26-121(a)(3).” Based on the record, the Court of Appeals ruled that the trial court failed to use the correct standard, substantial compliance, on this issue, noting that the trial court never even mentioned substantial compliance. The Court of Appeals further found that the trial court’s ruling “lack[ed] specificity as to the deviations that were made,” and that it failed to include any “discussion of prejudice.” The Court noted that Rule 56.04 requires a grant of summary judgment to include a rationale for the ruling, and found that this order failed to comply with that standard. The Court specifically noted that the trial court failed to mention any specific deviations or “a single address, date, attempted or successful mailing or defendant specifically.” The Court therefore vacated the trial court’s ruling on this issue and remanded “for further consideration in light of the appropriate standard.”

The Court of Appeals did a good job parsing through the facts and issues at play in this case. Defendants were asking the Court to assume that a diagnosis was communicated to decedent without the facts to back up that assumption, and the Court correctly ruled that such an assumption could not be made here. The Court also rightly recognized that the trial court had failed to apply the substantial compliance standard to the issues surrounding the mailing of the pre-suit notices.