# FILED October 3, 199 6 Cecil Crowson, Jr . App ellate C ou rt Clerk JEANNIE FARROW, ) Appeal No. PLAINTIFF/APPELLANT, ) 03A01-9603-CV-00084 v. ) CHARLES F. BARNETT AND FORT ) Knox Circuit Court No. SANDERS PARKWEST MEDICAL CENTER, ) 2-546-95 DEFENDANTS/APPELLEES. )



### COURT OF APPEALS OF T ENNESSEE WESTERN SECTION AT KN OXVILLE APPEAL FROM THE KNOX CIRCUIT COURT AT KNOXVILLE, TENNESS EE THE HONORABLE HAROLD WIMBERLY, JUDGE

CARL R. OGLE, JR. P.O. Box 129 Jefferson City, TN 37760 ATTORNEY FOR PLAINTIFF/APPELLANT ROBERT H. WATSON, JR. JOHN C. DUFFY Watson, Hollow and Reeves, P.L.C. 1700 First Tennessee Plaza Tower 800 South Gay Street Post Office Box 131 Knoxville, Tennessee 37901-0131 ATTORNEYS FOR DEFENDANT/APPELLEE CHARLES F. BARNETT, M.D.
F. MICHAEL FITZPATRICK Arnett, Draper & Hagood 2300 First Tennessee Plaza Knoxville, Tennessee 37929-2300 ATTORNEY FOR DEFENDANT/APPELLEE FORT SANDERS PARKWEST MEDICAL CENTER



### AFFIRMED AND REMANDED

SAMUEL L. L EWIS, JUDGE1

Court of Appeals Rule 10(b): The Court, with the concurrence of all judges participating in the case, may affirm, reverse or modify the actions of the trial court by memorandum opinion when a formal opinion would have no precedential value. When a case is decided by memorandum opinion it shall be designated "MEMORANDUM OPINION," sh all not be published, and shall not be cited or relied on for any reason in a subsequent unrelated case.
2 Appellants later established the actual date of the procedure was 13 August 1994. 2



## MEMORANDUM OPINION 1 This is an appeal by plaintiff/appellant, Jeannie Farrow, from two orders of the trial court which granted the motion to dismiss filed by defendant/appellee , C harles F. Barnett, M.D. (“Dr. Barnett”), and the motion for summary judgment filed by defendant/appellee, Fort Sanders Parkwest Medical Center (“the Medical Center”). In its orders, the trial court concluded that plaintiff failed to file her action within the applicable statute of limitations. The facts out of which this controversy arose are as follows.

On17 August 1995, plaintiff fil ed a complaint for medical malpractice and alleged the following. Plaintiff visited Dr. Barnett's office on 10 August 1994. He ordered plaintiff to have
anMRI performed at the Medical Center. Dr. Barnett gave plaintiff
a prescription f or X anax and told her to take the Xanax thirty minutes prior to having the MRI performed. Plaintiff went to the Medical Center on 18 August 1994 to have the MRI performed. 2 As ordered by Dr. Barnett, plaintiff ingested the prescribed dosage of Xanax and the Medical Center performed the MRI. Employees of the Medical Center placed plaintiff in a chair following the MRI procedure and left her unattended. Plaintiff passed out because of the effects of the Xanax and fell from the chair. She was injured when her shoulder and other parts of her body struck the floor.

On18 September 1995, Dr. Barnett filed a motion to dismiss and an alternative motion for summary judgment. He claimed that3

plaint iff filed her claim outside the statute of limitations and that he was entitled to a judgment as a matte r of law . He also alleged that he did not deviate from the recognized standard of acceptable professional practice . In support of his motion, he filed his own affidavit and a memorandum.

On21 September 1995, the Medical Center filed a motion for summaryjudgment. The Medical Center provided affidavit testimony and numerous exhibits proving that it actually performed the MRI on 13 August 1994, not 18 August as alleged in plaintiff's complaint. Bec ause plaintiff filed her complaint on 17 August 1995, the Medical Center contended she filed it outside the applicable statute of limitations.

On3 January 1996, the trial court entered an order dismissing plaintiff's claim s a gainst the Medical Center. The trial court stated: “The Court considered the . . . record as a whole, and found that the motion was well taken and should be sustained on the basis that the statute of limitations had expired prior to the fi ling of the plaintiff's lawsuit.” On the same day, the cour t entered a secon d order that addressed Dr. Barnett's motion to dismiss. The court stated: “After hearing arguments of counsel, and considering the record as a whole, the Court found the Motion to be well taken and ruled that Plaintiff had failed to file her actionwithin the applicable statute of limitations.” Thereafter, the court dismissed plaintiff's claims against both defendants.

Pl aintif f filed her notice of appeal on 30 January 1996. Plaintiff no tif ied the court that she was appealing both the court's orders entered on 3 January 1996. On appeal, plaintiff raised the fol low ing issue: “Whether the circuit judge erred in finding that the Plaintiff's complaint was barred on the statute of limitation grounds.”4

I. STANDARD OF REVIEW

Pursuant to the Tennessee Rules of Civil Procedure and Tennessee case l aw, w e must review the court's orders as if both had granted defendants summary judgment. To explain, Rule 12 of the Tennessee Rules of Civil Procedure provides as follows: If, on a motion asserting the defe nse numbered (6) to dismiss for fai lure t o state a claim upon which relief can be granted, matters outside the pleading are presented to and no t excluded by the court, the motion shall be treated as one for summaryjudgment and disposed of as provided inRule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56. T ENN . R. C IV . P. 12.02 (West 1996). Moreover, the Tennessee Supreme Court has held that a trial court converts a Rule 12.02(6) motion into a Rule 56 motion when it considers matters outside the pleadings. Knierim v. Leatherwood , 542 S.W.2d 806, 808 (Tenn. 1976). A trial court, however, can “prevent a conversion from taking place by declining to consider extraneous matters.” Pacific E. Corp. v. Gulf Life Holding Co. , 902 S.W.2d 946, 952 (Tenn. App. 1995). A matter outside the pleadings is “'anywritten o r oral evidence in support of or in opposition to a pleading that provides
some substantiation for and does not merely reiterate what is said inthe pleadings.'” Kosloff v. State Auto. Mut. Ins. Co. , Ch. App. No. 89-152-II, 1989 WL 144006, at *2 (Tenn. App. 1 Dec. 1989)(quoting 5 C HARLES A. W RIG H T & A RTHUR R. M ILLER , F EDERAL P RACTICE AND P ROCEDURE § 1366 (1969)).

It is clear that the trial cou rt con sidered matters outside the pleadings when ruling on both the motion for summary judgment and the motion to dismiss. Thus, the court converted the motion to dismiss into a motion for summaryjudg ment. In both orders, the trial court stated that it had considered the entire record. The record in this case contained numerous matters which did more than reiterate what was in the pleadings. For example, the Medical5

Center attached the affidavit of Lisa Little, the radiology technologist who performed the MRI, and three other exhibits to its motionfor summary judgment. T he affidavit and the exhibits prov ided information that was not in plaintiff's complaint and corrected information, the date of the MRI procedure, whi ch was stated incorrectly in plaintiff's complaint. This evidence became part of the record. Because the trial court considered the entire record, we must review this case and address appellant's issue pursuant to summary judgment standards.

Atrial court must grant a motion for summary judgment when there are no genuine issues of material fact and the law entitles the moving party to a judgment. Byrd v. Hall , 847 S.W.2d 208, 214 (Tenn. 1993). “In making its determination, the court is to view the evidence ina light favorable to the nonmoving party and allow all reasonable inferences in his favor.” Id. at 215. These same principles apply to this court's review of a trial court's decision to grant summary judgment. See Gonzales v. Alman Constr. Co. , 857 S.W.2d 42, 44 (Tenn. App. 1993).

II. STATUTE OF LIMITATIONS

The applicable statute of limita tion s provides that medical malpractice cases “shall be commenced within one (1) year after the cause of action accrued . . . .” T ENN . C ODE ANN . § 28-3-104 (a)(1) (Supp. 1996). In addition, the statutes also provide: (a)( 1) T he statute of limitations in malpractice actions shall be one (1) year as set forth in § 28-3 -104. (2) In the event the alleged injury is not discovered withinthe said one (1) year period, the per iod of limitationshall be one (1) year from the date of such discovery. Id. § 29-26-116(a)(1)&(2) (1980). The Tennessee Supreme Court has had numerous occasions to interpret and apply the language of this3 Id. At the intermediate level, the Middle Section of the Court of

Appeals held that Tennessee Code Annotated section 29-26-116(a)(2), the “savings statute,” did not apply because the plaintiff discovered the injury within one year of the negligent act. Thus, the court concluded that the plaintiff had one year from the negligent act in which to file his or her complaint. Hoffman v. Hospital Affiliates, Inc. , slip op. at 3-4 (Tenn. App. 1 Feb. 1982), rev'd , 652 S.W.2d 341 (Tenn. 1982). The facts of Hoffman are similar to the present case. In this case, plaintiff claimed that she discovered her injuries twelve to thirteen days after the negligent act. 6 statute.

Prior to the codification of the discovery rule, the Tennessee Supre me Court recognized its importance in medical malpractice
cases. Teeters v. Currey , 518 S.W.2d 512 (T enn. 1974). The Teeters court defined when the cause of action accrues as “when the patient discover s, or in the exercise of reasonable care and d iligence for his own health and welfare, should have disc overe d the resulting injury.” Id. at 517.

Since the codification of the discovery rule, the Tennessee Supreme Court has defined when the statute of limitations begins to
runin cases similar to the one currently before this court. As recognized by the Tennessee Supreme Court, Tennessee Code Annotated sect ion 29 -26-116(a) does not “specifically address what the appropriate period of limitations would be if the alleged negligent act is discovered within the one year period but after the date of injury.” Hoffman v. Hospital Affiliates, Inc. , 652 S.W.2d 341, 344 (Tenn. 1983). In Hoffman , the Court used the common law to “fill inthe crack left by the legislature' s si lence.” 3 The Hoffman court relied on Teeters and c onclud ed that the interpretation of whena cause of action accrues found in Teeters “fits squarely with boththe wording of the statute and prior cas e law.” Id . The court then held that the discovery rule applies only when the “plaintiff does not discover and reasonably could not be expected to discover that he has a right of action.” Id. In addition, the court held that the statute is tolled only when “the plaintiff has7

no knowledge at all that a wrong has occurred, and, as a reasonable person is not put on inquiry.” Id.

Inanother case, the Tennessee Supreme Court defined the date of discovery. Foster v. Harris , 633 S.W.2d 304, 305 (Tenn 1982);
see Hoffman , 652 S.W.2d at 343. Specifically, discoveryoc curs whenthe plaintiff discovers or reasonably should have discovered: “(1) the occasion, the manner and means by which a breach of duty occurred that produced his injury; and (2) the identity of the defendant who breached the duty.” Foster , 633 S.W.2d at 305. In
a more recent opinion, the Tennessee Supreme Court held that a plaintiff does not have to have actual knowledge “that the injury constitutes a breach of the appropriate legal standard.” Roe v. Jefferson , 875 S.W.2d 653, 657 (Tenn. 1994). Instead, the Court held that the plaintiff onlyneeds to be “aware of facts sufficient to put a reasonable person on notice that he has suffered an injury as a result of wrongful conduct.” Id.

To summarize, Tennessee's discovery rule prevents the statute of limitations in medica l malpractice case from beginning to run until the plaintiff discovers or in the exercise of reasonable care and diligence should have discovered: 1) facts sufficient to put a reasonable person on notice that he has suffered an injury as a result of wrongful conduct and 2) the exis tence or identity of a wrongdoer. Id. ; Hoffman , 652 S.W.2d at 343; Foster , 633 S.W.2d at 305. Moreover, this rule applies even if the plaintiff discovers the injury within one year of the neg ligent act. Hoffman , 652 S.W.2d at 344. Finally, the rule will not apply if the plaintiff could have reasonablybeen expected to discover that he or she had a cause of action. Id.

The dates relevant to a determination of the issue in this4 There is no evidence in the record as to what the x-rays revealed. 8 case are as follows. The first date, 10 August 1994, is the date that Dr. Barnett prescribed what plaintiff claims was an excessive dosage of Xanax. Next, plaintiff claims the Medical Center was negligent on 13 August 1994, the date it performed the MRI. Plaintiff contended that her shoulder and back were sore and that she called the hosp ital on 25 August 1994. The hospital calledplaintiff back on 26 August 1994 and requested she come in for xrays. 4 Plaintiff filed her complaint on 17 August 1995.

It is the opinion of this court that the trial court correctly determined that the statute of limitations bars plaintiff's claims. As previously stated, the discovery rule tolls the statute until a persondiscovers or in the exercise of reasonable care should have discovered certain facts. Assuming that plaintiff had no knowledge of the fall, it is reasonable to expect that plaintiff would discover the injury, at least the soreness, within a few days after the fall. Had plaintiff exercis ed rea sonable care and diligence for her own health and welfare, she would have discovered facts sufficient to place her on notice prior to 17 August 1994. Note, the record does not contain any evidence that plaintiff was unconscious other than when she passed out on 13 August 1994. Plaintiff was admitted as an out-patient, and as such, she did not remainin the hospital overnight. The record also reveals that plaintiff claims to remember nothing about the MRI or the period she claims Medical Center employee's left her unattended, yet she
n ever inquired into the reasons for her blackout. There i s n o evidence that plaintiff expected the Xanax to have such an affect. Thus, the simple f act t hat plaintiff did not remember the MRI or the period thereafter should have, at th e ver y least, put her on notice that something was wrong and caused her to inquire further. See Housh v. Morris , 818 S.W.2d 39, 42-43 (Tenn. App. 1991).9

For these reasons, the trial court correctly determined that plaintiff's claims were barred by the statute of limitations. The judgment of the trial court is affirmed and remanded for any further necessary proceedings. The costs on appeal are taxed to plaintiff/appellant, Jeannie Farrow.

___________________________ SAMUEL L. LEWIS, JUDGE

CONCUR:

_____________________________ W. FRANK CRAWFORD, JUDGE

_____________________________ DAVID R. FARMER, JUDGE