# FILED September 4, 1996 Cecil Crowson, Jr . App ellate C ou rt Clerk IN THE COURT OF AP PEALS OF

TENNESSEE, WESTE RN SECTION AT KNOXV

ILLE

_______________________________________________________ ) JEANNIE FARROW, ) Knox County Circuit Court ) No. 3-494-95 Plaintiff

/Appella nt. ) ) VS. ) C. A. NO. 03A01-9603-CV-00089 ) WARREN G. REED, ) ) Defendant/Appellee. ) )

______________________________________________________________________________ From the Circuit Court of Knox County at Knoxville. Honorable Wheeler A. Rosenbalm, Judge
Carl R. Ogle, Jr. , Jefferson City, Tennessee Attorney for Plain tiff/App ellant.
Debby A. Thompson , J. Tucker Montgomery , MONTGOMERY & THOMPSON, Knoxville, Tennessee Attorneys for D efendant/Appellee.

OPINI ON FIL

ED: AFFI RMED FARMER, J.
CRAWFORD, P.J., W.S. : (Concur s) LEWIS, J. : (Concur s)In this medical malpractice a ction, Plaintiff-Appellant, Jeannie Farrow (“Far row” or “Plaintiff”), appeals the trial court’s judgment g ranting the Motion for Summary Judgment filed by Def

endant-Appellee, Warren G. Reed (“D r. Reed” or “Defendant”).

On Dece mber 31, 1 991, Dr. R

eed per formed out-patie

nt surge ry on Farr ow to correct a dislocated second digit of he r right foot. During the surge ry, Dr. Ree d placed a 26- gauge monofilament wire in Fa rrow’s toe to hold the bones in place while they healed.
On July 26, 1994, Farrow consulted a nother doctor, who examined Farrow’s right foot. The amended complaint alleges that the doctor infor med Farrow that a “foreign object” had been placed in the second digit of Fa rrow’s right foot and, further, that a diff erent toe also had been broken and/or dislocated.

On July 25, 1995, Farrow sued D r. Reed for negligenc e. In her amende d complaint, Farrow alleged that Dr. Reed negligently placed a foreign object in the sec ond digit of Farrow ’s righ

t foot and neglig ently

allowed t he fore ign obje ct to rema

in there . Farro w also alleged that Dr. Reed’s actions constituted fra udulent concealment in that Dr. Reed “never informed [Farrow] of the foreign object or of the [additional] broken and/or dislocated toe but instead constantly informed a nd advised [Farrow] that her foot was healing prope rly.”
Dr. Reed subsequently

filed a Motion for Summary Judgment on the g rounds that Farrow’s malpractice action was barred by the three-y ear statute of repose contained in T.C.A. § 29-26-116 (1980). The trial court agreed and granted Dr. Reed’s motion.

On appeal, Farrow presents the f ollowing issue for review:
Whether the circuit judge erred in finding that the plaintiff’s complaint was barred on the statute of limitations and repose grounds and further finding that the foreign object and the fr au du le nt co nc ea lm en t e xc ep ti on di d n ot ap pl y.
As pertinent, sec tion 29-26 -116 prov ides that:(3) In no event shall any [malpractice] action be brought more than three (3) y

ears after the date on which the neg ligent act or omission occurred except where there is fra udulent concealment on the part of the defendant in which case the a ction shall be commenced within one (1) year after discovery that the cause of action e xists. (4) The t ime limitat

ion here in set for th shall no t 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) ye ar afte r the alle ged inju

ry or wrongful act isdiscover ed or shou

ld have been discovered.
T.C.A. § 29-26-116 (1980).

We first r eject F arrow’ s content

ion that the

“forei gn obje ct” exce

ption save s this action f rom being

time-bar red by the thre e-year sta

tute of re pose. The

Supreme C ourt has h

eld that the “foreign object” exception found in section 29-26-116( 4) applies only “to ca ses where something never intended to be inserted at all or something only temporarily

utilized was negligently

permitted to remain in a patient’s body , such as a clamp or sponge following surgery .” Hall v. Erv in , 642 S.W.2d 7 24, 727 (T enn. 1982 ). The exception do es not app ly “to an object which [has] been deliberately implanted . . . , such as an intra-uterine contraceptive device, a pacemaker, dental wor k or other devices knowingly and intentionally inserted and intended to remain for an indefinite period of time.” Id.

Here, Dr. Reed’s uncontradicted a ffidavit filed in support of his Motion for Summary Judgment stated that he intended to plac e the wire in Farrow’s toe during surgery and that he in tended f or the wir e to rema in in the toe

permane ntly . Accor

dingly , the “fo

reign o bject” exception does not apply in this case.

We likewise reject Farrow’s contention that the fr audulent concealment exception prevents her action from being time-bar red. In order to e stablish fraudulent concealment in a malpractice case, the plaintiff must show that “the phy sician had knowledge of the wrong done and concealed such information from the patient.” Housh v. Morr is , 818 S.W.2d 39, 43 (Tenn. App. 1991). “Knowledge on the part of the phy sician of the facts giving rise to a c ause of action is an essential element of fraudulent concealment.” Benton v. Snyder , 825 S.W.2d 409, 414 (Tenn. 1992).1 In Byrd v. Ha ll , 847 S.W.2d 208, 215 (Tenn. 1993), the Supreme Court explained the

burde n plac ed on t he non movi ng part y in a summ ary judgme nt pro ceedin g:

When the part

y seeking su

mmary judgmen

t makes a proper

ly supported motion, the burden the n sh ifts to the nonmoving

party to set forth spe cific fa

cts, not le g al conclusions, by using a ffidavits or the disco very

materia ls listed in Rule 56.03 [T.R.C.P.], establishing that there are indeed disputed, mater ial fa cts cr eatin g a genuine issue that needs to be resolved by

the trier of fact and that

a trial is therefore ne ce ss ar y. The nonmoving party may not rely upon the alleg ations or denials of his pl eadings in carry ing out this burden as mandated by Rule 56.05. In this case, Dr. Reed’ s affidavit stated that he diagnosed Far row’s dislocated toe by viewing

x-rays taken four months af ter Farrow’s injury . At that time, “[n]o associated fractures were seen.”Although Farrow’s complaint asserted that a second doctor diagnosed an additional broken and/or dislocated toe in July 1994, the record contains no evidence that Dr. Reed knew of the additional injury or that the injury existed in December 1991 when Dr. Reed viewed F arrow’ s x-ray s and made his diag nosis. Ac cording ly, no eviden ce has be en prese nted to
su pp or t F ar ro w’ s f

ra ud ul en t c on ce al me nt th eo ry. 1
The judgment of the trial court is affirmed. Costs are a ssessed against Farrow, for wh ic h e xe cu ti on ma y is su e i f n ec es sa ry.

___________________________________ FAR MER , J.

______________________________ CRAWFORD, P.J., W.S. (Conc urs)

______________________________ LEWI S, J. (Concur s)