Tennessee’s Discovery Rule Applied by the Court of Appeals

Where there was a question of fact regarding when plaintiff was put on notice of his potential HCLA claim, and plaintiff provided an expert affidavit in support of his claims, summary judgment based on the statute of limitations and a lack of proof on causation and damages was reversed.

In Vilas v. Love, No. W2022-01071-COA-R3-CV (Tenn. Ct. App. Oct. 26, 2023), plaintiff had his appendix removed by defendant surgeon. At a follow up appointment on March 27, 2017, plaintiff was given a pathology report that stated that “no intact vermiform appendix is identified.” There was a disagreement between plaintiff and defendant regarding what defendant told plaintiff at the follow up appointment. Two weeks after the follow up appointment, plaintiff began experiencing pain and went to another hospital, where they discovered that his appendix had not been removed in the first surgery.

Plaintiff sent pre-suit notice of his HCLA claim to defendant on March 1, 2018, and filed his complaint on August 6, 2018. Defendant moved for summary judgment, which the trial court granted on two grounds. The trial court ruled that the claim was barred by the statute of limitations and that plaintiff had not provided sufficient proof of causation or damages. On appeal, the trial court’s rulings were reversed in part, vacated in part, and the case was remanded.

The Court of Appeals began by analyzing whether plaintiff’s claim was barred by the applicable one-year statute of limitations, which was ultimately a question of when the cause of action accrued. In Tennessee, “a health care liability cause of action accrues when one discovers or in the exercise of reasonable diligence should have discovered, both (1) that he or she has been injured by wrongful or tortious conduct and (2) the identity of the person or persons whose wrongful conduct caused the injury.” (internal citation and quotation omitted). When a plaintiff relies on constructive or inquiry notice, “the discovery rule does not 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, or until the plaintiff knows the specific type of legal claim it has.” (internal citation omitted). The question is “when the relevant person became sufficiently aware of the injury and the wrongful conduct of the defendant to trigger the running of the statute of limitations.” (internal citation omitted).

Here, defendant argued that the statute of limitations began to run on the date of the post-op appointment. Defendant asserted that, based on notes he took after the appointment, he told the patient there was a small chance he had not removed the entire appendix. Defendant also argued that the pathology notes were given to plaintiff and should have alerted him to the possibility that his appendix was not removed. Plaintiff, on the other hand, testified that he did not recall defendant stating that there was a chance that the appendix was not removed, but instead recalled defendant saying that based on the landmarks, he was convinced he had removed the appendix. Plaintiff also testified that he had found errors in his medical chart, so he was not certain that the notes recorded by defendant were correct.

Considering the evidence, the Court of Appeals found that plaintiff had created a genuine issue of material fact regarding whether he was told at the follow up appointment that his appendix was possibly not removed. The Court thus stated that it could not conclude as a matter of law that plaintiff was on notice of his cause of action on the date of this appointment.

Regarding the argument that plaintiff was put on notice because he was provided the pathology report, the Court noted that it had “previously recognized the difficulty interpreting medical jargon presents to the average person.” (internal citation omitted). The Court stated that a “reasonable trier of fact could determine that the language in the pathology report was so technical and vague” it would not have put plaintiff on notice of his potential claim. Further, the report was provided in conjunction with plaintiff’s conversation with defendant. The Court wrote that “a reasonable inference from [plaintiff’s] testimony is that, faced with a report in technical jargon and his doctor’s assurance of a surgery’s success, there appeared to be no need to inquire further into the results of the operation.”

Because there were genuine issues of material fact as to when plaintiff had constructive notice of his HCLA claim, summary judgment on the basis that plaintiff was on notice of his claim on the date of the post-op meeting was reversed.

Tied into the summary judgment claim was consideration of whether plaintiff’s pre-suit notice was sufficient, as plaintiff needed the benefit of the 120-day statute of limitations extension to argue that his claim was timely. The pre-suit notice was signed by a Louisiana attorney and stated that plaintiff “was also represented by an attorney licensed in Tennessee.” Defendant argued that the pre-suit notice was invalid because it was not signed by a Tennessee attorney. The trial court engaged in very limited discussion of the pre-suit notice, and the Court of Appeals wrote that “trial courts are required to do more than address arguments by implication.” Because the trial court did not specifically rule on the argument that the pre-suit notice was invalid, the ruling regarding the pre-suit notice was vacated.

Finally, the Court of Appeals addressed defendant’s argument that plaintiff failed to provide sufficient proof of causation and damages. Generally, both causation and damages in an HCLA case must be proven through expert testimony. At the summary judgment stage, “the extent of injury is not a proper inquiry and a health care liability plaintiff must demonstrate only that he or she has been injured.” (internal citation omitted).

Here, plaintiff submitted an expert affidavit stating that defendant’s breach of the standard of care “likely caused or contributed to injuries [plaintiff] would not have otherwise incurred, including urgent and acute return to treatment, medical expenses, physical pain and suffering, and additional medical care.” On appeal, defendant argued that this affidavit was not specific enough, but because he did not raise that argument in the trial court it was deemed waived for purposes of the appeal. Further, the Court noted that it had “previously accepted similar testimony as sufficient to prevent the granting of summary judgment.” (internal citation omitted).

While there was some question as to the extent of plaintiff’s injuries, as he admitted that he had not had a second or subsequent surgery and much of his pain was ultimately due to constipation, the Court ruled that plaintiff had created enough of a question of fact to avoid summary judgment. Summary judgment based on the lack of proof of causation and damages was therefore reversed.

This opinion was released four months after oral arguments in this case.

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