# FILED
October 20, 1997 Cecil W. Crowson Appellate Cou rt Clerk IN THE SUPREME COURT OF TENNESSEE AT NASHVILLE

THERESA STANBURY and spouse, ) FOR PUBLICA TION JOHN STANBURY, ) ) Filed: October 20, 1997 Plaintiffs-Appellants, ) ) DAVIDSON COUNTY v. ) ) Hon. Hamilt o n V. Gayden, Jr. , BRIAN E. BACARDI, ) Judge ) Defendant-Appellee. ) Appeal No. ) 01S01-9609-CV-00178

For Plaintiffs-Appellants : For Defendant-Appellee : Helen Sfikas Rogers Lela M. Hollabau gh JONES, ROGERS & FITZPATRICK MANIER, HE ROD, HOLLAB AUGH & SMIT H Nashville, Tennessee Nashville, Tennessee



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COURT OF APPEALS AFFIRMED. DROWOTA, J.1 Teeters v. Currey , 518 S.W.2d 5 12, 517 ( Tenn. 1974); Tenn. Code Ann.§ 29-26- 116(a)(2)(1980). -2- In this ap peal we must determine whether the common law “continuing medical treatment doctrin e” remain s viable in Tennessee and oper ates to toll the statute of limitations in medical malp ractice cases until the t ermination of treatment
or the physician/patient r elationship. Relying

upon thatdoctr ine, the plaintiffs, Theresa and John Stanbury, argue that the Court of Appeals erred by di smissing this medical malpractice action which was filed within one year of Theresa Stanbury’s last office visit with the de fendant Dr. Brian E. Bacardi, a podiatrist. The Court of Appeals found the doctrine inapplicable under the f acts of this case, and, in addition observed that its applicability has been eroded or eliminated in this State by judicial and legislative adopti on o f the discovery rule. 1 In a separate opinion, Judge Koch concluded that the doctrine has been completely subsumed into thediscovery rule, and he urged that its abolition be expressly r ecognized.

We conclude that the common law do ctrine of continuing medical treatment has been completely abrogated b y adop tion of the discovery r ule in Tennessee. Accordin gly, for the reasons explained hereafter,we affirm the decisionof the Court of Appeals dismissing the pl aintiffs’ complaint.

BACKGROUND In 1991, Theresa Stanbury wor ked on the assembly line at the Satur n Corporation in Spring Hill, Tennes see. She developed a corn on the fifth toe of her right foot which caused discomfort w hile she stood during her ten hour shift. A-3-

physician remov ed the co rn and recommended that Stanbury c onsult a podiatrist. On November 22, 1991, Stanbury met with Dr. B rian Bacardi. After a cursory examina tion , Dr. Bacardi recommended a minor surgical procedure t

o prevent the fifth toe on Stanbury ’s right foot from lying on top of her fourth t oe. Dr. Bacardi
assu red Stanbury that recover y time following the surgery would be short an d he r work schedule woul d not be interrupted.
Stanbury signed two consent forms prior to the December

11, 1991 surgery. One document on Dr. Bacardi’s s tati o nery entitled “Surg ery Informer” contained a briefdiscussion of the general risks and complications of surger y, but did not

identif y the type of surgery Dr. Bacardi planned to perform. The second document was a Centennial Medical Center form entitled “Consent for Operati on, Administration of Anesthesia and Other Pr ocedures.” In the space prov ided for describing the operation to be performed, someone hand wrote:”Bilateral Osteotomy,Bilateral Repair Tailor Bunion, Bilateral Arthroplasty, Bilater al Realignment Digit 4 and 5 , Bilateral Removal 5th Toenail.” Stanbu ry asserts that she was not informed about the nature of these procedures and that she did not know that s he had consented to surgical procedures on b oth h er feet. Stanbury said that she did not knowingly consentto anything other than the minor procedure Dr. Bacardi had described in his office on November 22.

On December 11, 1991, Dr. Bacardi p erforme d extensive surgery on both of Stanbury’s feet while she was under a general ane sthetic. During the

mid-afternoon, Stanbury was releas ed from the hospital, and exited i n a wheelchair with both feet heavi ly bandaged. Although she could remember very little about the aftern oo n2 John Stanbury claimed loss of consortium.
3 On June 9, 1993, t he plaint iffs vol untaril y dismissed all claims against Hospital Corporation of Am erica , d/b/a Cen tenn ial Ho spita l, and it is not a par ty to this appe al. -4- following surgery, Stanbury said that over the followin g days she realized that surgery had been performed on both her feet, and she described her feet as “[t]wo big white blobs.” When Dr. Bacardi removed the s urgical dressing during her first office visit
on December 20, 1991, nine days after surger y, Stanbury said she w

as in “complete and utter shock” and that she “couldn’t believe all that had been done. There were so many stitches and so many things, it was just unbelievable.” Stanbury als o noticed that the fifth toe of her rig ht foot was not touching the floor but rather was pointing straight up

in the air. Stanbury said she did not specifically ask Dr. Bacardi why he h ad per formed surgery on her left foot; however, she asked him generally whathe had done to her f ee t. According to Stanbury, Dr. Bacardi was v ery vague and told her the surgery was necessary to c

orrect hereditary pr

oblems.
Stanbury had four more office visits with Dr. Bacardi between January 10 and March 17, 1992. On April 3, 1992, Dr. Ba cardi per formed additional surgery to correct the mi salignment of the fifth toe on Stanbury’s ri ght foot. During a postoperative visit on May 5, 1992, Dr. Bacardi told Stanbury that there was nothing more he could do for her and that it would take approximately one year for her feet to fully heal.

Theresa Stanbury 2 filed a malpractice action against Dr. Bacardi and Hospital Corporation of America 3 on April 30, 1993. She alleged that Dr. Bacardi had been negligent in advising her to have surgery, in performing the

surgery, and in pr

oviding4 Tenn. Code A nn. § 29-26-116(1980). -5-

her post-operat ive care . Stanbury also alleg ed that Dr. Bacardi had performed
u nnecessa ry

surgery, that he had failed to obtain her consent to the surgery perform ed on D ecember 11, 1991, that he had ignor ed her complaints of pain and infection, and that he had falsified office n otes to conceal her actual condition. Dr. Bacardi responded, denying all wrongdoing and

asserting that the

claims were barred by the statute of limitations.

At the close of the plaintiffs’ proof in the jury trial, the t rial court directed a verdict in favor of Dr. Bacardi on the theories of negligent pos t-operati ve care, ignoring Stanbury’s complaints of pai n and infection, and intentionally falsifying office notes to conceal her true conditi on. The defendant moved for a directed verdict on the basis that all claims w ere barred by the one y ear statute of limita

tions of the Tennessee Medical Malpractice Act, 4 but the trial court denied that motion finding that Dr. Bacardi had provided continuing c are to Stanbury through the final office visit on May 5, 1992, w hich was within one year of the date she filed suit. The trial court submitted to the jury the plaintiff’s claims concernin g la ck of informed consent, advising and performing unnecessary surg ery, and negligentl y performing the surgeries. In response to a question which arose during jury deliberations, however, the trial court withdrew the claim for neglig entl y performing the surgeries. The jury returned a ge neral verdict in favor of the plaintiffs awarding Theresa Stanbury $211,000 and John Stanbury $10,000.-6- The defendant appealed, and the Court of Appeals reversed the judgment in favor of the plaintiffs and dismissed the compl aint, finding that the claims

were barred bythe one year

statute of li mitations. Th e intermediate court found the continui ng medical treatment doctrine inapplic able under

the facts of this case, and, in addition, observed that its applicability has been eroded or eliminated i n this State by judicial and legislative ado ptio n of the discovery rul e. Judge Koch, in a separate opinion, agreed with the majority that the informed consent claims w ere barred by

the statute of limitations. Fin ding that the con tinuing medical tr eatment doctrine has been completely subsumed into the discovery rule, Judge Koch urged that its abolition be expressly

recognized. How

ever, he dissented from dismi ssal of the entire case. Since Stanbury’s unnecessary surgery claim w as filed within one year

of the time she
was informed by another health car e prof essional that the initial surgery was unneces sary, Judge Koch opined that it had been timely filed within one year of its discovery.
Thereafter, we granted the plainti ffs permission to ap pe al to determine whether the common law “ continuing medical treatment doctrine” remains viable in Tennessee. For the reasons that follow, we conclude that the common law doctrine has been subsumed by the discovery rule and therefore affirm the judgment of the Court of Appeals dismissing the complaint.

CONTINUING MEDICAL TREATMENT D OCTRINE5 Teete rs v. Currey , 518 S.W .2d 512, 5 17 (Te nn. 1974 ); Tenn . Code A nn. § 29-26 - 116(a)(2)(1980).

6 As Judg e Ko ch re cog nized , the fa cts o f this c ase do no t sup port th e pla intiff’s claim of fraudulent

conc ealm ent. T o est ablish frau dulen t con cea lme nt a p lain tiff must prove (1) t hat the defendant took aff irmative action to co nceal the cause of action o r rem ained silen t and failed to discloseessen tial facts des pite a duty t o do so and (2) the pl ainti ff could not have discover

ed the cause of action de spite exe rcising rea sonab le diligence. Benton v. Sny der , 825 S.W.2d 409, 414 (Tenn. 1992). Because Dr. Bacardiaffirmatively and repeatedly advised the plai ntiff

to wait a year (t he precise statutory time period wi thin whi ch she had to fi le a malpracti ce action) for he r fee t to co mp letely h eal, the proo f in this recor d supports the first prong of the f raudulent concealment excepti on. However, the defense does not a pply because, as we hol d, the pl ainti ff could hav e discovered t he injury through the exercise of reaso nable diligen ce. Comp are Ha ll v. De Saussure , 297 S.W.2d 81 (Tenn. App. 1956) (A physici an p erformed surgery u pon the spine o f the pla inti ff which had not been authori zed. The physici an did not

inform the plai ntiff

about the unaut horized pr ocedure. The plai ntiff did not di scover the injury

untilafter t he expiration of the one y ear statut

e of li mitations when another phy sician made an x-ra y and in form ed th e plain tiff of th e true char acte r of th e sur gery. T he pla intiff b roug ht su it and the defendant al leged that th e suit was barred by the statute of li mitations. Finding that the phy sician had a duty t

o disclose the n atur e of the surger y because of t he confident ial phy sician-p atient relatio nsh ip and conc luding that th e plain tiff co uld not hav e discovered t he cause of acti on by re aso nab le dili gence, the i ntermediate cour t appli ed the fraudul ent concealment except ion and hel d that the su it had bee n timely filed.) -7- Until December 1974, 5 negligence actions against health care providers, like all other actions for injuries to the person in Tennessee, w ere r equ ired to be filed within one year after the date of the wrongful act that caused th e plainti ff’s inj ury. Albert v. Sherman , 167 Tenn. 133, 135, 67S.W.2d 140, 141 (1934); Bodne v. Austin , 156 Tenn. 353, 364-65, 2 S.W.2d 100, 103 (1928); Tenn. Code Ann. § 28- 304. The two most common exceptions to this rule involved continuing torts and fraudulent conceal ment of the injur y. 6

In 1938, the intermediate appellate court adopted the continuing tort principle in a case involving

an employee who had be come disabled by breathing chemical particl es in his employer’s plant ov er an extended period of time. N oting that the employer

had a duty to protect its employees from breathing these particles, the court held that the employer had commit t ed “one continuous tort, begi nning with the employment

and e nding only at the time of total disability of the employ ee and the termination of his employ me nt .” Tennessee Eastman Corp. v. New man , 22 Tenn.-8-

App. 270, 279, 121 S.W.2d 130, 135 (1938). Accordingly,the employee’s action filed within one year of the onset of his disability and the terminatio n of his employment
was held to be timely filed. Id .; see also Steiner v. Spencer , 24 Tenn.App. 389, 145 S.W.2d 547 (1940).

Several years later, the inter mediate appellate court extended the continuing tort principle to medicalmalpractice actions. In Frazor v. Osborne , 57 Tenn.App. 10, 414 S.W.2d 118 ( 1966), the plaintiff brought a medical malpracti ce action against her physician and the hospital in which she had undergone surgery over ten years earlier. Du ring the operation, in 1952, a surg ical sponge was plac ed in her body and neglig ently l eftthere upon the operation’s completion. Over the next ten years, the plainti ff was under

the defendant doctor’s care and thr oughout that time, the incisi on from plaintiff’s operation remained open and infected, and as a result, she suffered
severe pain and was eventuall y totally di sabled. On May 2, 1961, some members of the plaintiff’s family noticed that threads wer e beginning to work

out of the incision. When Frazor’s family w as unable to locate

Dr. Osborne, one of his associates made
a house call, probed the incisi on, and removed portions of the embedded spo nge. The remainder of the embedded sponge w as removed shortly thereafter, and within
a few days, the

inci sion completely healed and nev er caused the plaintiff further problems.

The plaintiff brought suit in 1962, within one y ear of the date the sponge was discovered and removed. Thetrial court directed a verdi ct for the defendant doctor and hospi tal fi nding the action barred by the one year statute of limit ations. The Court of Appeals affirmed the trial court ’s judgment as to the

hospital, but reversed-9-

as to the doctor, finding that the plaintiff’s cause of acti on did not a ccrue until the physician/patient

relationship terminated. Accordingly, i n the context of medical malpracti ce cases, the continuing tor t principle became known as the continuing medical treatment doctrine.

Sixyears after Frazor

was decided , this Court, in Teeters v. Currey , 518 S.W.2d 512 (Tenn. 1974), adopted the discov ery rul e for determining when the statute of limitations begins to run in medical malpractice action s. In that case, the continuing treatment doctrine was unav ailable because the doctor-patient relatio nshi p ha d terminated approximately three years before the suit was filed. T eeters , following the birth of a normal child, dev eloped medical complications which l ed Dr. Currey, her attending physici an, to recommend a tubal ligation to prevent future pregnancies. Teeters followed his advice and Dr. Currey performed the procedure
on June 6, 1970. On December 6, 1972, Teet ers was informed that she w as pregnant, and on March 9, 1973, Teeters g ave birth to a premature child with severe complications. F ollowing a second bilateral tubal ligation, Teeters brought suit against Dr. Currey onNovember 15, 1973, almost thr ee and one-half years after the initial su rgery, but o nly eleven m onths af ter disco vering her p regnancy.

In concluding that the plaintiff’s claim was timely filed, this Court held that “the
cause of action accrues and the sta tute of limitations commences to run when the patientdisco vers, or in the e xercise of reasona ble care a nd diligen ce for his own health and welfare, should have disco vered the resulting injury.” Teeters , 518 S.W.2d at 515. In choosing to adopt the discovery rule, this Court refused to embrace a rule of law which would require a plai ntiff to sue to vindicate a non-ex isting-10-

wrong at a time wh en the in jury is “unk nown and unknowable.” Id . This Court did not address the relationship between the newly adopted disco very ru le and the continuing medical treatment doctrine.
Approximately six months later, the Gen eral Assembly included the discovery rule as part of the Med ical M alpractice Claims Act o f 1975. Now codified at Tenn. Code Ann. § 29-26-116, the legis lative statute of limitati ons provides, in perti nent part, as follows: (a)(1) The statute of limitations in malpractice actions shall be one (1) year as set forth in § 28-3 -104. (2) In the event the alleged i njury is not discov ered within the said one (1) year period, the period of limitatio n s hall be one (1) year from the date of such disc overy. (3) In no even t shall an y such a ction be brought more than thr ee (3) years after the date on which the neg ligent act or omission occurred exceptwhere t here is fraudulent concealment on the par t of the defendant in which case the action shall be commenced within one (1) year after discovery that the cause of action exists. (4) The time limitation herein set forth shall not apply in cases where a foreign object has been negligently left in a patient’s body in which case th e action shall be commenced within one (1) year after the allege d injur yor wro ngful act is discover ed or should have been discov ered. Tenn. Code Ann. § 29-26-116 (1980). The s tatute of limitations has sev eral key elements. Section 1 grants an inj ured party one year w ithin which to bring

suit after the cause of action has accrued. If an inju ry is not di scovered within the one year time period, Section 2 allows the injured party one year within which to bring suitfrom the date of discovery, but Section 3 (a statute of repose) imposes a three-year ceiling upon that right. If there is fraudulent concealment on the part of the physician or if
a foreign object has been negligently left in a patient’s body by the physician, as

was the case in Frazor

, supra , the injured party is entitled to commence a lawsuit within
one year after

discoveryof the fraudulent concealment or foreig n object. Hoffman v. Hospital Affiliates, I nc , 652 S.W.2d 341 (Tenn. 1983).7 See also Hou sh v. M orris , 818 S.W .2d 39, 43-44 (Tenn. App. 199 1). -11- Neither this Court in Teeters , nor the General Assembly in the statute, explicitly addressed the viabilit y of the continuing medical trea tment d octrine. Therefore, the dispositive inquiry in this appeal is whether the common law c ontinuing medical treatment doctrine has been abrogated by judici a l and legislative adoption of the discovery rul e in this State. W e join the intermediate appella te court and conclude that the doctrine has been abrogated. 7

The common law doctrine has been described as follows: [I]f the facts show continuing medical or surgica l trea tment for a particular

illness or

condition in the

course of which there is malpractice producing or agg ravati ng harm,the caus e of acti on of t he pa tient accrues at the end of the treatment for that particular illness , injury or condition, unless the patient sooner knew or reasonably should have known of the injury or harm. . . .”
Hechtv. Resolution Trust Corp. , 635 A.2d 394, 401 (Md. 1994); Robinson v. Mount Sinai Medical Center , 402 N.W.2d 711, 716 (Wis. 1987). The rationale underly ing the rule is that a patient must trust a physician to remain in his care and during that care, the patie nt is n ot likely to suspect negligent treatment. “It is the trust relationship that may make discovery of a claim difficult.” Whee ler v. Schmid Laboratories, Inc. , 451 N.W.2d 133, 138 (N.D. 1990).
Considering the formulation of the doctrine, and the rationale upon which it is based, it is clear that the continuing medical treatment doct rine is me rely a particularized

application of the discovery rule. The rule presumes, for policy reasons, that a patient has not discov ered an injury during

the time medical treatment continues. If there is actual proof that the patient knows or reasonably should know8 Com men t, When Your Doctor Say s, “You Have Nothingto Worry About” Don’ t Be So Sure: The Effect of Fabi o v. Bell omo on Medical Malpracti ce Actions in Minnes ota , 78 Minn. L.Rev. 943, n. 53 (Apr il, 1994). Several of the jurisdict ions which cont inue to appl y the doct rine have not adopted the discovery rule. See e.g. Healy v. Langdon , 511 S.W.2d 498 (N eb. 1994 ); Aubin v. Burke , 434 N.W.2d 282 (Minn. Ct. App. 1989). -12- of the injury or harm before termination of medical treatment , the statute of limitations is not tolled. The rule has outlived its necess ity in light of the compr ehensive medical malpractice statute oflimitations which requires that suit be brought within one y ear of the negligent act or within one year of discovery. The statute co ntains exp licit excep tions for fraudulent concealment and f oreign objects which more often re sul t in lengthy delays. Altho ugh t he common law doctrine still is rec

ognized i n some jurisdictions, 8 it has been judicially or legislatively

abrogated in many states followi ng adoption of the discovery rul e. See e.g. Jones v. Mc Donald , 631 So.2d 869, 873 (Ala. 1993); Ewing v. Beck , 520 A.2d 653 (Del. 1987); Cunningham v. Huffman , 609 N.E.2d 321 (Ill. 1993); Hecht v. First National Bank & Trust Co. , 490 P.2d 649 (Kan 1971); Hill v. Fitzgerald , 501 A.2d 27 (Md. 1985); Crum pton v. H umana, Inc. , 661 P.2d 54 (N.M. 1983); Russo v. Diethrick , 617 P.2d 30, 35 (Ariz. C t. App. 1980). The time for its express abolition has arrived in Tennessee as well.
Having decided thatthe continuing medical tr eatment doctrine has

bee n a brogated by adoption of the discovery rule, we must next determine whether th e Court of Appeals erred in concluding that the plaintiff’s claims ar e time-barred. Without question, the plaintiff’s lawsu i t was not filed withi n one year of the alleged negligent act, the surgery on December 11, 1991. We must the refore det ermine whether su it was file d within on e year of d iscovery of an injury.-13- We begin our an alysis of this issue with the p rinciple that the statute of limitationscommences to run when the patient knows or i n the e xercise of
re asonable care and diligence shoul d know, that an injury has been sustained. Teeters , 518 S.W.2d at 515; see also Wyatt v. A-Be st, Co., Inc. , 910 S.W.2d 851, 854 (Tenn. 1995). In other words, the statute of limitations in a medical malpractice
case is tolled until the plaintiff “discovered, or reasonably should have discover ed, (1) the occasion, the manner, and the means by which a breach of

d uty occurred that produced his injuries; and (2) the identity

of the defendant whobreached the duty.” Foster v. Harris , 633 S.W.2d 304 (Te nn. 1982). However, it is not necessary that the plainti ff actuallyknow that the injury constitutes a breach of th e appropriate legal standard in order to discover that he has a ‘rig ht o f action;’ the plainti ff is deemed to have discovered the right of action if he is aware of facts suf fi cient to put a reasonable pers on on notice that he has suffered an injury as a resul t of wrongful conduct. Roe v. Jefferson , 875 S.W .2d 653 , 657 (Tenn. 1994); see also Carvell v. Bottoms , 900 S.W.2d 23, 29 (T enn. 1995).
Applying th at sta ndard to the facts in this case, it is clear that the plaintiff’s medical malprac

tice la wsuit is time -barred. Dr. B acardi perfo rmed su rgery on Theresa Stanbury’s feet on December 11,1991. A few days after surgery, Stanbury realized that both feet were bandaged and s he descr ibed them as “[t]wo big white blobs.” Stanbury maintains that she knowingly consented to surgery on her right foot only. According to Stanbury , she had no medical problems w ith her left foot prior to the surgery performed by Dr. Bacardi. When she questioned Dr.Bacardi about the
reason forthe surgery, Stanbury said she received a v

ery vague response.Based on the record, it appears that sh ortly after the s ur gery, Stanbury w as aware of facts-14-

sufficientto put a reasonable person on notice that she had suff ered an injury as a result of wrongful conduct. Not o n ly was she awar e of the occasion, manner, and
means by which the breach of duty producing her injurie s occurred, she also knew the identity of the person w ho breached the duty.

Even assuming that her claim for lack of informed conse nt is ba rred by the statute of limitations, the plaintiff maintains that she had not di scovered her claim of unnecessary surgery until she was informed by another heal th care professional that Dr. B acardi deviated from the standar d of care for podiatrists by failing to fol low a conservat ive treatment regime before recommending surgery. Since she filed suit
w ithin one year of receiving t hat info rmation , Stanbu ry argues th at her cla im wa s timely filed. We disagree.
We emphasize that unde r the discovery rule, the statute begins to run w hen the plaintiff knows or in the exercise of reasonable care and d iligence s hould kn ow, that an injury has been sustai ned. It is knowledge of facts sufficient

to put a p laintiff on notice that an injury has been sustained which is crucial . Again, a plaintiff need not “actually know that the injury constitutes a breach of the ap propri ate legal standard in order to discover that he has a ‘right of action.’” Roe , 875 S.W.2d at 657;
see also Carvell v. Bottoms , 900 S.W.2d at 29. I n other words, a plaintiff need not actuallyknow

the specific type of legal claim he or she has so long as the plaintiff is “aware of facts sufficient to put a reasonable person on notice that he has suffered
an injury as a result of wrongful conduct.” Id . In this case, the plaintiff was aware of facts sufficient to put a reasonable pers on on notice that she had suffered an injury
as a result of thesurgery. Advice from another health care professional that a claim-15-

existsis not a prerequis ite to ac crual of a medical malpractic e cause of action. In fact, we have specifically rejected such a requirement in the context of medical and legal malpractice actions. Roe , 857 S.W.2d at 658; Carvell , 900 S.W.2d at 29. Even assuming Tennessee applied such a rule, which it does not, in this case the plaintiff’s assertion that she was unaware o f her claim for unnecessary s urgery until adv ise d byanother

health care professionalis unpersuasive because she was not so advised until after

she f iled the complaint in this case alleging unnecess ary surgery. Stanbury knew or reas onably sh ould have known that she h ad a right of action against t he defendant, at the latest, by the time of the February, 1992 office v isit , when she realized that

the fifth toe on her foot was not in a normal position. However,
more than fourteen months had passed be fore suit was filed on April 3 0, 1993. Accordingly, the pl aintiff’s lawsuit is ti me-barred.

CONCLUSION B e cause we conclude that the conti nuing medical treatment doctr ine was abr oga ted by adoption of the discover y rule, and the plaintiff’s a ction was not instituted within one year of discovery, the lawsuit is tim e-barred by the statute of limitations. Accordingly, w e affirm the judgment of the Court of Appeals dismissing the complaint.

____________ ________________________ ___ FRANK F. DROWOTA III JUSTICE
Concur: Anderson, C. J. Reid, Birch, Holder, JJ.-16-