# FILED Feb. 20, 1997 Cecil Crowson, Jr . Appellate Court Clerk IN THE COU RT OF A PPEA LS OF TENN ESSEE WESTERN SECT ION A T JA CKSON
JOSEPH CHID ESTER and wife, ) KATHLEEN CHIDESTER, ) ) Plaintiffs/App ellants, ) Tipto n Circuit No. 4193 ) VS. ) A ppeal No. 02A 01-9602-CV-000 29 ) L. D. ELLI STON, O.D., ) ) Defendant/Appellee. )
APPEAL FROM THE CI RCUI T COUR T OF TIP TON CO UNTY

AT COVINGTON, TEN NESSEE THE HONORABLE JOSEPH H. WALKER, III, JU DGE

STEPHEN R. LEFFLER LINDA D. F UTRELL Memphis, Tennessee Attorneys for Appellants
WILLIAM W. DUNLA P, JR. Memphis, Tennessee Attorney for Appellee

REVERSED A ND REMA NDED

ALAN E. HIGHERS , J.

CONCUR: DAVID R. FA RMER, J. HOLLY K IRBY LIL LA RD, J. In this medical malpractice action, th e Plaintiffs, Josep h and Kathleen Chideste r,2

filed suit agai nst the Defendant, D r. L. D. El liston, for fail ing to diag nose the Pl ain tiff’s malignant

tumor. The tri al court g ranted the Defendant’ s motion for summary judgment holding that the Plaintiff s’ cause of action i s barred by the one year

statute of limitations. The Plaintiffs’ have appealed the trial c ourt’s order arguing that the statute of limitations does not bar this action because the Plaintiffs’ cause of action did not accr ue un til the Plaintiff’s malignancy

recurred. For the reas ons stated hereafter, we reverse the judgment of the court below

and remand.

FACTS

In February

of 1992 while on vacati on in Ariz ona, the Plainti ff developed a sinus infection and not iced the presence of blood in his u rine. The Plaintiff vi sited Dr. C harles Ballanger

at the Paradis e Valley E mergency Center in Phoeni x, Ar izo na. Dr. Bal langer prescribed certain medications for the Plaintiff’s s inus infection and told the Plai ntiff to visit a doctor w hen he returned home concerning the presence of blood in his uri ne.

On March 10, 1992, the Plaintiff vi sited the Defendant an d complained of a si nus infection and the presence of blood in his ur ine. The Defendant conduc ted a urinal ysis wh ich revealed b oth red and w hite blood cel ls in the Pl aintiff’s urine. The Defendan t diagnosed the Plaintiff as hav ing a k idneyinfection and prescribed se veral medications. On M arc h 17, 1992 , thePla inti ff again visited the Defendant and complained of bloo d in his urine. The Defendan t advised t he Plaintiff to remai n on the medication that he had p reviously

prescribed. In July of 1992, blood reap peared in the Plaintiff ’s uri ne, and th e Plai ntiff visited the Defendantand again complained of the presence of blood in his u rine. The Defendant then presc ribed a different medi cation for the Pl aintiff.

On December 22, 1992, the Plaintiff soug ht the advice of another general practice physicia n, Dr. Jeffrey May. Dr . May sc heduled the Plaintiff for an intr avenous py elogram which revealed the presence of a ma lignant tumor on the Plaintif f’s right kidney. Dr. May referred the Plaintiff to a ur ologist, D r. Richar

d Pearson, w ho removed the Plaintiff’s r ight3

kidney alo ng wit h the malignant tumor attached to it on January 18, 1993.

After the removal of the P lain tif f’s r ight k idne y, Dr. Pearso n told the Plai ntiff that he should have no further

problems w ith the malig nancy sinc e the tumor was confined to the right kidney which was removed. D r. Pearson ex amined the Plainti ff periodically in 1993 after the Plainti ff’s surgery in order to monitor the Plai ntiff’s progre ss.

In Dec ember

of 1 993, Dr. Pearson perform ed a CAT scan on the Plaintif f which revealed the recurrence of a malignant tumor in the area where thePlaintiff’s ri ght kidney with the malignancy once had been. Dr. Pearson refe rred the Plaintiff to an oncologist, Dr. Schwartz berg.

In ord er to treat th e second malig nant tumor, the Pl aintiff underwent a course of chemotherapy

from February

through Mar

ch of 1994 and a second s urgery in May of 1994. On November 10, 1994, the Plai ntiffs filed their complaint.

LAW

The issue before thi s Court is whether th e trial cour t erred in g ranting the Defendant’s motion for summary judgment based upon the one year stat ute of limitations contained in T.C. A. § 29-26-116 ( 1980).

This Court revie ws the trial c ourt’s gr ant of sum mary judg ment de novo upon the entire record w ith no presumption of cor rectness. Cowden v . Sovran Bank /Central South , 816 S.W.2d 741, 744 ( Tenn . 1991); Foley v . St. Thomas Hosp. , 906 S.W.2d 448, 452 (Tenn. Ct. App. 1995); Bren ner v. Textron Aer ostructures, A Divi sion of Textron, Inc. , 874 S. W.2d 579, 582 (Tenn. Ct. App. 1993). No presumption of cor rectness attaches t o decisionsgranting summary judg ment because they evoke only

questions o f law. Foley , 906 S.W.2d at 452. Thus, we must make a fresh determi nation on appeal as to wheth er or not the requi rements of Rule 56of the Tennessee Rules of Civil Procedure have been4

met. Id .; Hill v. City of Ch attano oga , 533 S.W.2d 311, 312 (Tenn. Ct. App. 1975 ).

W hile the summary j udgment proc edure is nota substitute for trial, i t goes to the merits of the complaint an d should not be taken li ghtly. Byrd v. Hall , 847 S.W.2d 208, 210 (Tenn. 1993); Jones v. H ome Indem. Ins. Co. , 651 S.W.2d 213, 214 (Tenn. 1983); Fowler
v. Happy Goodman Family , 575 S.W.2d 496, 498 (Tenn. 1978); Foley , 906 S.W.2d at 452. It has bee n re peat edly sta ted b y th e app ell ate court s of t hissta te th at th e pur poseof a summary judgment proc eeding is not the finding of facts, the resolution of disputed factual issues or the determi nation of conflicti ng inferences reasonab ly to be drawn from the facts. Bella my v. Federa l Express Corp. , 749 S.W .2d 31, 33 (Tenn. 19 88). Rather, the purpose of summary judg ment is to res olve contr olling i ssues of law

. Id

.

In evaluating the propriety of a motion f or summary judgment, we must first determine whether a genuine iss ue of material fact exists . Tenn. R. Civ . P. 56. In doing so, we must con sider the pleadin gs and the evidentiary materials in the light most favorable to the movant’s opponent an d draw all r eason able inferences in the op ponent’s favor. Byrd , 847 S.W.2d at 210.

In a mal practice action, the plai ntiff has the burden of provin g: (1) The recog niz ed st anda rd o f acc epta ble prof e ssi onal practice in the professi on and the special ty thereof, i f any, that the defendant practices in the community

in whic h he practices ori n a similar community at t he time the alleg ed injury or wrongful action occurr

ed; (2) Tha t the def end ant a cted with le ss th an or fail ed to act wi t h ordinaryand reasonable care in accordan ce with such standard; and (3 ) As a proximate result of the defendant’ s neglig ent act or o mi ssion, the plaintiff suffered inj uries w hich woul d not otherwis e have occur red. T.C.A. § 29-26-115 (198 0). Pursuantto T.C.A. §29-26- 116(a)(1), the statute of lim itations for malpractice actions is one year. H owever , in the eve nt thatthe alleged injury is not discovered within the one year

per iod, the l imi tati ons p eri od i s oneyea r from th e dat e fro m wh ich the p lai ntiff discovers his or her

injury . T.C.A. §29-26- 116(a)(1) ( 1980). Thu s, un der T enn esse e law,
a statute of limitations be gins to run when the plaintiff discovers or, in the exercise of5

reasonable care and dil igence for hi s own healt h and welfare, should have di scovered t he resulting i njury. Teet ers v. C urrey , 518 S.W.2d 512, 517 (Tenn. 1974); McCro skey v. Bryant Air Condit ioning Co. , 524 S.W.2d 487, 491 (Tenn. 1975); Roe v. Jefferso n , 875 S.W.2d 653, 656 (Tenn. 1994) ; Wyatt v. A-Best Produ ct s Co., Inc. , 924 S.W.2d 98, 103 (Tenn. Ct. App. 199 5).

In the present cas e, the trial court held that t he Plaintiffs’ caus e of action for medica l malpractice accrued in J anuary of 1993 w hen the Plainti ff was told that a malignant tumor measuring two inche s in diameter was prese nt on th e Pla inti ff ’s righ t kidn ey. The Plaintiffs, however, argue that t heir cause of act ion did not acc rue until D ecember of 1993 when the Plaintiff’s canc er recur red. The P lai ntiffs cont end that their cause of action for medical malpractice did not accrue i n January of 1993 because the Plaintiffs suffered no damag es in January of

1993 as a result of the Def endant’s misdiagnosis. The Plaintiff’s mali gnant tumor on his rig ht kidney ex isted regar dless of th e De fe ndant’s misdiag nosis of the Plaintiff’s condition . Thus, the Plaintiff s’ cause of action i s not based upon the Plaintiff ’s
cancer. Rathe r, thePlain tiffs’ complai nt is based u pon the me tastasis of the Plaintiff ’s
cancer. The Plaint iffs argue that the Plain tiff’s cancer would not have reappe ared in December

of 1993 had the Defendant properly diagnosed the Plaintiff’s cond ition in March of 1992. In support of their argument, the P laintiffs present the affidavits of tw o physici ans who both testified that

the chemotherapy

treatments in February and March of 1994 and the seco nd su rgery in May of 1994 may no t have been necessary if the Plaintiff’s mali gnant tumor had been detecte d and treated in March of 1992 by the Defendant.
Therefore, the Plaintiffs argue that they did not know

or have reason to know of their malpractice cause of action unt il December of 1993. The Plaintiffs conten d that they were not put on notice of any injury resulting from the Defendant’s mi sdiagnosis until December of 1993whe n Dr . Pea rso n per forme d a C AT sc an on the P lai ntiff w hich reve aled the
recurrence of a malig nant tum or in the area where the Plaintiff’s ri ght kidney with the malignancy once had been. Because the element of damages is es sential in bring ing an action for medical malpr actice, the Pl aintiffs’ assert that their c ause of action did n ot accrue6

until Dec ember

of 1 993 when t he Plaintiffs w ere first put on notice of the inj ury resu lting from the Defendant’s mis diagnosis of the Plaintiff’s cond ition.

We have not yet had the opportuni ty to addres s the issue of when a medical malpractice c ause o f act ion accr ues w herethere isno ac tion ableinj ury

as a res ult of a defendant ’s misdiagnosi s of cancer other than the metastasi s or the recurrenceof the
cancer. In consider ing this i ssue, we hav e looked to case

precede nt from other jurisdict ions whi ch have addre ssed the same is sue.

In Johnson v. M ullee , 385 So.2d 1038 (F la. Dist. Ct. Ap p. 1980), the Cou rt of Appeals for the State of Flor ida confronted the s ame issue. In Johnson , the defendant physicia n performed a breast examination on the plaintiff on Se ptember 22, 1972. Johnson , 385 So.2d at 1039. The d efendant found “diff usely cystic areas” in the plaintiff’s left breast but did not invest igate the nature of those l umps. On Marc h 7, 1973, the pla inti ff consulted her father, a sur geon, whoexamined her breast. A biopsy was performed which revealed the exist ence of a malignant tumor in theplaintiff’s brea st. The plaintiff underwent
a radical mast ectomy on Mar ch 12 , 1973. Pathology reports on th e removed ti ssues revealed cancer of the plaintiff’s left br east with metastasis tothree auxiliary lymph nodes. In February

of 1975, a bone scan w as performed upon the pl aintiff which showed that t he
cancer had spread to the plaintif f’s ribs and skull. The plaintiff filed her medical malpractice
cause of action on November 29, 1976. The court hel d that the plaint iff’s cause of action did not accrue until Februar y of 1975. The Johnson court reasoned as follows: It was in F ebruary 1975that she [ the pl aintiff] first lear ned that the cancer had m e tastasized beyond the surgically removed portions. From the evidenc e presented, there is no ba sis on w hich to concl ude that her cause of acti on should havebeen discovered with due diligence prior to th at time. Although she ha d a basis for bel ief that appellee doctor [thedefendant] wasneglige nt in not discovering her cancer, the evidenc e is to the effect th at, had he discov ered the cancer at thattime, she would have been requir ed to undergo t he same radical mastectomy, w hich she later had. At the time the r

adical mastecto myw as performed, she h ad no cause of action against appellee doctor because there was no evidence t hat his alleg ed negligenc e had resulted in any har m to her. It was only in February 1975, when the cancer appeared in other parts of herbody, that s he discovered her cause of acti on. It was only then t hat she coul d have known she had been harmed by the alleged negligent diagnosis.7

Johnson , 385 So.2d at1040. Thus, the cour t in Johnson concluded that ev en though the plai ntiff knew that the defenda nt had misdiagnosed her cond it ion in March of 1973, the plaintiff’s cause of action di d not accrue until Fe bruary of 1975 because it was not until Februaryof 1975 that the pl aint iff knew that she had been damag ed as a result of the defendant ’s misdiagnosis.

The Illinois Appellate Cour t addressed the s ame issue in Janetis v. C h ristensen , 558 N.E.2d 304 ( Ill . App . Ct . 199 0). On A pri l 7, 1982 , the pla inti ff vi sit ed th e defe ndant and complained of rectal bleeding. Janetis , 558 N.E.2d at 305 . The defendant informed the plai ntiff that the bleedingwas due to hemorrhoids and recommended no treatment. Id . at 305-6. The plaintiff vi sited the defendant ag ain on July 29, 1982 because of his continual bleedi ng, but the defendant diag nosed the problem as hemorrhoids and stated that “there is nothing to worry about.” Id . at 306. In Oct ober of 1982, another ph ysician, Dr. Moore, examined the p lai ntiff. The plaintiff un derwent a proctoscopy and a biopsy at Dr. Moore’s request. In November of 1982, Dr. Moor

e told the plai ntiff that he did have cancer but surgery would re ctify the prob lem. The p lain tif f was a dmit ted t o the hosp ital the n ext day, and Dr. Parenti surgically removed part of the plaintiff ’s colon. Following the surgery, Dr. Parenti tol d thepla inti ff that “ever ything w as all ri ght” and that he was very pleased wi th the outcome. In three subseq uent visi ts to Dr. Pa renti, “everything was going well,” and there
were no problems. In M ay of 1983, the pl aintiff returned to Dr. Moore because he again experienced rectal bleed ing. Dr . Moore informed t he plaintiff that the bl eeding w as due to hemorrhoidsand that there was no problem. The p laintiff returned to Dr. Moor e in the fall of 1983, and a proc toscopy examination revealed that the cancer had recurred. The court in Janetis stated as follows:

Because [the plaintiff] was told thatall the cance r was removed in November 1982 , it cannot be s aid as a matter of law that he sho uld have had know ledge of his i njury or even tha t defendant s’ misdiagnosi s caused him any harm. Not unti l the fall of 1983, withi n two y ears of the date [the plaintiff ] filed his action, when the pr

octoscopy ex

amination revealed the cancer had recur r ed and when [theplaintiff] was informed of the cancer’s progress ion, could it befound as a matter of law that [the plain tif f] sh ould have b een aware of h is inj ury and th e possibilit y that the defendants ’ misdiagno sis was the cause. Id

. at 308. Although the plai ntiff knew that the def endan t misdia gn o sed his condition in1 The onl y ev idence on thi s issue suggests t hat r emoval of t he Plai nti ff’ s kidney would h ave been requ ired e ven if the D efe nda nt’s initial diag nos is of the Plaintiff’s c ond ition ha d be en c orre ct. 8 November

of 1982, the Janetis court reversed the trial court’s g rant of summary judgment in favor of the defendant based upon the stat ute of limitations and held that the q uestion of wheth er th e pla inti ff knew o r sho uld h ave known of his injur y and its cause before the fall of 1983 should have been a questi on determined by the jury

.

In Wolf v. Bueser , 664 N.E.2d 197, 2 01-2 (Ill. App. Ct. 1996), th e court cit ed the
cases o f Johnson v. Mull ee and Janetis v. Christenso n and agreed w ith their r ationale. The court in W olf reverse d the trial court’s order w hich dismiss ed certain neg ligence co unts against a defendant physic ian because the pl aintiff could possi bly prove that her cause of
a ction for metastasis of undi agnosed breast cancer did not

accrue until the cancer recurred. The W olf cour t agre ed wit h a lin e of auth ority h oldi ng tha t wh ere th ere is no actionable injury resulting from a misd i agnosis of canc er other than th e metastasis or
recurrence of the cancer, a pl aintiff’s cause of ac tio n accrues on th e discover y of the metastasis or recurrence. The court in W olf stated as follows:

A cause of action ac crues onl y w hen all the element s of the cause of action are present: duty, breach, and resulting injury or damage. Without accrual ther e can be no cause of action, and there is no cause of action until injury or damage has occurred. ( internal ci tations omitted) Id . at 204.

Because a cause ofaction for medica l malpractic e does not a ccr ue un til the p lai ntiff
can prove that he has been damaged as a result of a defendant’ s neglig ent act or omission, we disag ree with the trial court’s or der holding that the Plaintiff’s caus e of action accrued in January

of 1993 when the pl aintiff’s rig ht kidney was removed. The Plaintiff was put on notice of

the defendan t’s misdiagnosis of his condition in Janu ary of 1993; however, it cannot be said as a matter of law that the Pla inti ff knew or should have k nown that he had been damaged as a result of the Defendant’s m isdiagnosis. It is li kely that t he Plaintiff’s right kidney would have had tohave been removed regardless of the Def endant’s misdiagnosis of the Plaintiff’s condi tion. 1 Based upon the record before us, we conclude that a genuine issue of material fact exists as to when the P laintiff’s inj ury occur red and,9

hen ce , when the Pl aintiff knew or should have known of his cause of action aga inst the Defendant. We, therefore, reverse thetrial court ’s order granting summary judgment in favor of the Defendant bas ed upon the statute of l imitations.

The judgment of the tr ial court i s hereby reversed and t h e cause is remanded. Costs on appeal are taxed to the Appellee, for w hich execut ion may iss ue if necessary

.

HIGHERS, J. CONCUR:

FARMER, J.

LILLARD, J.