### IN THE COURT OF APP EALS OF TENNESS EE AT NAS HVILLE Ja nuary 9, 200 8 S es sio n DOY LE H. BR AN DT ET AL 

### . v. DAVID H. M C 

### CORD, M.D. ET AL 

### .

Appeal from t he Circuit Court for D avidson County No. 03C3455 Barbara Haynes, Judge

No. M2007- 00312-COA-R 3-CV - Filed Marc h 26, 2008

Th e iss ue on app e a l in thi s med ic a l malp ra c tic e a c tio n is wh e the r the plaint if fs ’ l a ws uit

wa s ti me ly filed. The plaintiffs, husband and wife, filed this medical malpra ctice a ction on Dec ember 5, 2003, against three healthca

re pr oviders for a surgica l proce dure pe rformed on husband on De cembe r 8, 20 00 . A ll d e fe nd a nts fi le d a Mo tio n to Di smi ss a nd

/or fo r S umm ary Ju dg me nt b a se d o n th e statut e of l i m itations. The trial court summarily dismissed the complaint finding the plaintiffs had knowledge of

enough fa cts more than one year befor e filing the lawsuit to put a rea sonable pe rson on notice that an injury ha d been suf fer ed as a result of wr ongful conduc t by the defe ndants. The trial court also found that the doc trine of f raudule nt conce alment did not apply to toll t he statute of lim itatio ns . T he plaint if

fs app e a le d. Fin din g n o e rr or , w e a ff ir m. Tenn. R. App . P. 3 Appeal as of Right; Judgment of the Cir cuit Court Af firme d
F R ANK G. C LE MENT , J R ., J., delivere d the opinion of the court, in which P AT R I C I A J. C OTTRE LL , P.J., M.S., and A NDY D. B ENNETT , J., joined.
Jo e Be dn arz , Sr ., Na sh vil le , T e nn e sse e ; A . V . Co nw a y, II I, Ha rt fo rd , K e nt uck y; and Ste ve n R. W a lke r, Me mph is, Te nn e sse e , f or the app e lla nts , D oy le H. Br a nd t a ndMa rtha J. Br a nd t.
E. Re yn old s D av ie s, Jr ., Na sh vil le , T e nn e sse e , f or the app e lle e s, Da vidH. Mc Cor d, M. D. , a ndDa vid H. Mc Cor d, M. D. , P. C.
Tricia D ennis, Chattanooga, Te nnessee , for the a ppellee, K arl Fournier , M.D.
OP IN ION
The matter s at issue arise f rom surgery perf

ormed on De cembe r 8, 2000 on Doyle H . Brandt by Dr. Da vid H. McCord, who wa s assisted by Dr. Karl F o u rnier. I t was the third surge ry Dr.T h e first su rg e ry w a s in Ju ly o f 1 9 9 9 a n d th e s e c o n d w a s in A p ril o f 2 0 0 0 . T h e m a tter s a t i ssu e d o n o t re la te 1
t o t h e first t w o su rg eries.

M rs. B ran d t w as in att en d an ce at m o st i f n o t all o f h er h u sb an d ’s d o cto r v i si t s. 2

A m yel ogr aphy i s a r adi ogr aphy of t he s pi nal cor d and ne r ve r oot s a ft er t he i nj ec t i on of a c ont r as t m edi um 3 i nt o t he s pi nal s ub ar achno i d s pace. -2- McCord had pe rformed on Mr. Brandt to re medy a pe rsistent back pr oblem. The Dec ember 8, 2000 1 surgical pr oced ure involved the place ment of pedic le scre ws to fuse togethe r vertebra e in Mr. Brandt’s lower

back.
Mr . B ra ndt ha d h is f

ir st f oll ow -u p v isi t w ithDr . M c Cor d o n Janu ary 23 , 2 00 1. Duri ngthi s visit, Dr. Mc C o rd t o o k x -r ay s and found Mr. B randt to be stable and advise d him to continue a normal routine. A second follow-up visit wa s schedule d for Ma rch 6, 2001. D uring the Marc h 2001 visit, Dr. McCord aga i n t o o k x -ra y s and found Mr. B randt to be doingwell despite c omplaints of pa in a nd so re ne ss.
On M ay 8, 2001, Mr. Brandt saw Dr. McCord for a third follow-up vis it at which time Mr. Br andt complained of

continuing ba ck problems and pain. I t was duringthis visi t that Dr. McCord display ed Mr. B randt’s x-ray s to Mr. and Mrs. B randt (here inafter “plaintiffs” ) and a dvised them that it w a s “ un c le ar whe the r t

he sc re w t ips have pe ne tr a te d the po ste ri or c or te x or n ot. ” To be tte r a sse ss

2 the situation, Dr. McCord orde red a my elog raphy to assess the har dwar e plac ement.

3
Mr. B randt re turned for

ano t h er fo llow-up with Dr. McCord on Septe mber 11, 2001, that included a CAT sc an and a my elog ram. At thi s time, Dr. McCord first noticed that the scr ews ha d pe ne tr a te d th e po ste ri or

c or te x an d w e re pa

rt ia lly in t he sp ina l c ana l. D r. Mc Cor d d isc us se d w ith the plaintiffs at this ti m e the possibilit y of re moval of the scr ews a nd his conce rn that the scr ews coul d ca u s e p ain. Dr. Mc Cord showed the x-ray s to the plaintiffs and re commended f ollow-up surg ery or remova l of the scre ws. After consulting a surg eon about the possibili ty of remova l, Dr. McCord subsequently chang ed his mind in N ovember of 2001 with r eg ard to surg ery and believe d that conser

vative tre atment was a

better option. During Mr. B randt’s f inal follow-up with Dr. McCord in April of 2002, Dr . McCord told the plaintiffs that he did not think the screw s were the c a us e of Mr . B ra ndt’ s p a in a

nd did no t r e c omm e nd any fo llo w- up surg e ry be pe rf or me d. Th e Ap ri l of 2002 off

ice visit was the last time Mr. B randt wa s examined by or spoke with Dr . McCord. Subsequ en t t o h i s last visit with Dr. McCord, Mr. Brandt consulted with his primary ca re physician, Dr. D efries, seeking r elief f rom the constant back pain he wa s experiencing. Following a brie f o ff ic e vis it, Dr . D e frie s r e fe rr e d M r. Br a nd t to a speci ali st in ph ys ic a l me dic ine a ndpa in manage ment, Dr. Steven Rupert.
Mr. Brandt wa s first seen by Dr. Rupert on June 18, 2002, at which time Mr. Brandt, who was a ccompa nied by his wife, complained of low back and foot pain. Afte r re viewing Mr. Brandt’ s CT s c a n f ilm s, Dr

. Rup e rt c on c lud e d th a t Mr . Br a nd t su ff e re d f ro m po sto pe rativ e low ba c k p a in w ithAs a c on s equ ence o f D r
. K er n ’ s ph on e ca l l , D r
. M cCor d w r ot e a l et t er t o M r
. B r an dt on J u n e 18, 2002, 4 advi s i ng of

r i s ks as s oci at ed wi t h a n addi t i onal s ur ger y on M r
. B r andt ’ s back and s t at i ng , i n D r
. M cCo r d’ s opi ni on, t hat f urthe r surge ry was u nw arra nted und er the c i rcu m st an ce s. The s ubs t anc e of t he l et t er i s s et f or t h l at er on i n t hi s opi ni on.
I nt r at hecal m eans w i t hi n ei t her t he s ub ar achno i d or t he s ub du r al s pace. 5
-3- pedicle sc rew s extending into the spinal cana l. D r. Rupert e xplained to Mr. and Mr s. Brandt that he was conce rned that the scre ws wer e extending into the spinal cana l, and ref err ed Mr. Brandt to Dr. Matthew Ke rn, a ne urosurge on, for a n immediate surgica l consult.
Dr . K e rnimm e diate ly s a w Mr . Bra nd t and dis c us se d with him a nd his wi fe the po ssi bil ity of re mov ing the sc re ws , a lon g w iththe ri sk fa c tor s. Dr . Ke rn a lso or de re d a b on e sc a n a ndx- rays , and sche duled a f

ollow-up visit. On the same day as h i s examination of Mr. Bra ndt, Dr. Ke rn telephoned D r. McCord to advise Dr. McCord of his ex amination and conc erns r elative to the sc rew s extending into the spinal ca nal. Dr. K ern a lso advised Dr. McCord in that conve rsation that he wa s c on sid e ri ngsurg e ry

to r e mov e the sc re ws
. During the follow- up visit, which occurre d on July 24, 4 2002, Dr. Ke rn discussed the r esults of the diagnostic tests with the plaintiffs. After considering the ri sk s a ndre wa

rd s o f r e mov ing the sc re ws , D r. Ke rnre c omm e nd e d a ga ins t r e mov a l of the sc re ws
. Two months late r, on September 18, 2002, Mr. Brandt saw Dr. Franc is J. McDonnell, who wa s b oa rdc e rt if ie d inpa in m a na ge me nt, se e kin g a n a lte rn a tiv e me a ns of re lie f f ro m th e ba c k p a in he wa s experiencing. Dr

. McDonne ll’s pla n for Mr. Brandt was to attempt to pre-ce rtify him for a tr ia l tr e a tme nt o f the int

rathe c a l a dmi nis tr a tio n o f p a in m e dic a tio n. If the y r e c e ive d p os iti ve re su lts 5 from the tria l treatment, Dr . McDonne ll planned to place Mr. Brand t o n a permanent intrathe cal treatment protocol. In August of 2003, e leven months afte r seeing Dr. McDonne ll, Mr. Brandt went to see D r. Matthew Gornet. Upon eva luating Mr. Brandt and r eviewing multiple diagnostic films, Dr. Gorne t c on c lud e d th a t th e pla c e me nt o f the pe dic le sc re ws vio la te d th e a c c e pte d s ta nd ardof c are fo r this type of surgic al proc edure and that the plac em en t o f t hose scr ews wa s the likely cause of Mr. Brandt’s incr ease d pain and physica l problems in his back.
On Dec ember

5, 2003, the pl aintiffs filed a medical malpr actice action against Dr. McCord, D r
. Fo u r n ie r , a n d D a v id H

. M c Co r d , M

. D

. , P. C. ( c o ll e c ti v e ly , th e “ d e f e n d a n ts ” ) a ll e g in g th at the scre ws had be en negligently inserte d to extend through the bone and into the spinal cana l, causing injury to the plaintiffs. The de fendants filed Motions to Dism iss and/or for Summary Judgment based on the statute of limitations, which the trial co u rt d en ied in April of 2004. The rea fter, Answer s to the Complaint w er e fi l ed and depositi ons of the plaintiffs a nd all rele vant treating physicians wer e take n. Subsequently, the defe ndants filed Motions to Revise th eO r d e r D e n y in g D e f

e n d an ts ’ M o ti on for Summary Judgment. The motions were supporte d by the deposition s o f t h e plaintiffs a nd Dr. Kern, Dr. McD onnell, and Dr . Rupert. The plaintiffs’ argume nt in response to the motions was that they wer e not told by anyone prior to August 11, 2003, that the defe ndants wer e negligent or that the-4-

su rg e ry ha d n ot b e e n p ro pe rl y d on e . Fo llo wi ng he ari ng s o n the mot ion s, the tr ia l c ou rt e nte re d it s Orde r granting summary judgment in favor of the defe ndants. In its Ame nded Or der, the trial court found that the plaintiffs “had knowledge of enough fac ts by September 18, 2002, at the latest, which wer e suff icient as a matter of law to put a re asonable person on notice that Plaintiff Doyle Brandt had suff ere d an injury as a

result of wr ongful conduc t by Defen d ants more than one year befor e filing this l awsuit on Dec ember 5, 2003.” Further, the trial court stated that it was of the opinion that the doctrine of fr audulent conc ealment did not apply. This appe al followed.
S TANDA RD OF R EVIEW The issues wer e resolved in the trial court upon summary judgme nt. Summary judgme nts do not enjoy a pre sumption of corre ctness on appe al. BellSouth Adve r. & Publ’g Co. v . Johnson , 100 S.W. 3d 20 2, 20 5 ( Te nn . 200 3)

. Th is co ur t must make a fr e shde te rm inatio n th a t th e re qu ir e me nts of Tenn. R. Civ. P. 56 have be en satisfied. Hu nte r v . B ro wn , 955 S.W .2d 49, 50-51 (Te nn. 1997). We c on sid e r t

he e vid e nc e in t

he lig ht m os t f

avo ra ble to t he no n- movin g pa

rt y and re so lve a ll in f e r e n c e s in th a t p arty ’ s f

avor. S t o vall v. Clarke , 1 13 S.W. 3d 71 5, 72 1 ( Te nn . 2 00 3) ; Godfrey v

. Ru iz , 90 S.W .3d 692, 695 (Tenn. 2002). When r eviewing the evidenc e, we first deter mine whether fa c tua l di sp ute s e xist. I f a fa c tua l dis pute e xists , w e the n d e te rm ine wh e the r t he fa c t is mate ri a l to the claim or de fense upon which the summary judgme nt is predicate d and whe ther the disputed f act cre ates a g enuine issue f

or trial. By rd

v . H all , 8 47 S .W .2 d 20 8, 21 4 ( Te nn . 1 99 3) ; Rutherford v. Polar Tank Trai ler, Inc. , 978 S.W .2d 102, 104 (Tenn. Ct. App. 1998). Summary judgme nt is appropriate wher e a pa rty establishes that there is no ge nuine issue as to any materia l fac t and that a judgment m ay be rendere d as a matter of law. Tenn. R. Civ. P. 56.04; Sto v all , 113 S.W .3d at 721. Moreove r, it is proper in virtually all civil c ases that c an be r esolved on t h e basis of leg al issues alone, By rd , 8 47 S.W. 2d a t 21 0; Pe nd

le ton v . M

ill s , 7 3 S. W. 3 d

115, 121 (T e nn . Ct . App . 2 00 1) ; ho we ve r, it is not ap pr op ri a te wh e n g e nu ine dis pute s re g ard ingmate ri a l f a c ts exis t. Tenn. R. C i v
. P

. 5 6

. 0 4. The pa rty seekinga summary

judgme nt bear s the burden of demonstrating that no g enuine disput es of materia l fac t exis t and that par ty is entitled to judgment as a matter of law

. Godfrey , 9 0 S. W. 3 d a t 6 9 5

. Summ ar y ju d g me n t s h o u ld b e g r an te d at the trial court leve l when the undisputed fa cts, and the infe renc es re asonably drawn from the undisputed fac ts, support one conc lusion, which is the party seekingthe summary

judgme nt i s en t i t led to a ju d g me n t a s a matt e r of law

. P er o ’s Steak & Spaghetti House v. Lee , 90 S.W .3d 614, 620 (Tenn. 20 02 ); W ebber v. State Farm Mut. Auto. Ins. Co. , 4 9 S. W.3 d 2 65 , 2 69 (T e nn . 2 00 1) . T he c ourt mus t take the str on g e st l e g iti mate vie w o f t he e vid e nc e in f

avo r o f t he no n- mov ingpa

rt y , a llo w a ll re a so na ble inf e re nc e s in

fa vo r o f t hat pa rty , di scar d all co un te rv a ili nge vid e nc e , a nd , if the re is a dispute as to any

materia l fac t or if there is any doubt as t o the exist ence of a material fa ct, summary judgme nt cannot be grante d. By rd , 8 47 S.W. 2d a t 21 0; EV

COCor p. v . R os s , 528 S.W .2d 20 (Tenn. 1975). To be e ntitled to summary judgme nt, the moving party must affirmatively

neg ate a n essential e le me nt o f

t h e n o n - mov ingpa

rt y ’s c la im o r e sta

bli shan a ff

ir ma tiv e de fe ns e that c on c lus ive ly de fe a ts the non-movingparty ’s claim. Cherry v. W illiams , 36 S.W .3d 78, 82-83 (Te nn. Ct. App. 2000).The di s cove r y r ul e w as de em ed nec es s ar y t o “ al l evi at e t he i nt ol er abl e r es ul t of bar r i ng a ca us e of ac t i on by 6 ho l di ng t hat i t ‘ acc r ued’ bef ore t he d i sco v ery o f th e i nj ury or t he w r on g, ” Sh ad r i ck v. Co ker , 963 S. W

. 2d 726, 733 ( Tenn. 1998) ( quot i ng F ost er , 633 S. W

. 2d at 305) ; ot her w i s e, a pl ai nt i f f w oul d be r equi r ed t o s ue t o vi ndi ca t e a w r ong at a t i m e w hen t he i nj ury w as “unk no w n or unk no w abl e. ” Id

. ( quot i ng St anbur y v. Bacar di , 953 S. W

. 2d 671 (T en n
. 1 9 9 7 ))

. -5- A N A L Y SIS
Th e plaint if

fs pr e se nt t wo iss ue s o n ap peal . O ne , th e y c on te ndthat th e tr ia l c ou rt e rr e d in granting sum mary judgment to the def endants ba sed upon the e xpiration of the statute of limit ations beca use a ge nuine issue of mate rial fa ct exists as to w hen the plaintiffs c ould have discove red the inj ury c aus e d b y th e de fe nd a nts ’ w ro ng fu l c on du ct. Th e se c on d is su e raise d b y th e plaint if fs is wh e the r the tr ia l c ou rt

e rr e d infi nd ing that th e do c tr ine of fr a ud ule nt c on c e a lme nt d id n ot a pp ly t o toll the statute of limit ations.
D I SCOV ERY OF THE C A U SE OF A C TI ON Medica l malprac tice ac tions are subjec t t o a o n e
- y e ar statute of

limit ations, but “[i]n the e vent the allege d injury is not discovere d within such one (1) year period, the pe riod of limitation shall be one (1) year

from the date of such discovery.” Tenn. Code Ann. § 29-26-116. Under this statute, which is known as the “di scovery rule,” the statute of limitations “commence s to run when the patient ‘discove rs, or re asonably should have discovere d, (1) the oc casion, the ma nner, and the me a ns by wh ic h a

br e a c h of duty oc c ur

re d tha t pro du c e d [th e patie nt’ s] inj urie s; an d (2) the ide nti ty of the de fendant who brea ched the duty.’” Shadrick v . Coker , 963 S.W.2d 726, 733 (Tenn. 1998) 6 (quoting Stanbury v. Bac ardi , 953 S.W.2d 671, 677 (Tenn. 1997) ).
The discove ry rule, w hich is at the ce nter of this issue, is succinc tly exp l ai n ed b y the Te nn e sse e Sup re me Cou rt a s f oll ow s: The plaintiff ma

y not . . . delay

filing suit until a ll the injurious effec ts and conseque nces of t h e al leg ed wr ong are actua lly known to the plaintiff. W yatt v. A-Be st Company , 910 S.W .2d 851, 855 (Tenn. 1995) . Si m i l ar ly , the statute of limit ations is not tol led until the plaintiff actua lly knows the “spe cific ty

pe of le g al claim he or

she has,” Sta nb ur

y , 953 S.W .2d at 678, or that “the injury constituted a brea ch of the appropr iate leg al s tandar d,” Roe v . Jefferson , 875 S.W .2d 653, 657 (Tenn. 1994). Rather, as we have rec ently emphasized, the statute of l i m i t ations beg ins to run when the plain t i ff knows or in the exercise of

rea sonable c are and diligenc e should kn ow that an injury has bee n sustained as a

result of wr ong ful or tortious c onduct by

the def endant. Sta nb ur

y , 9 53 S.W. 2d

a t 67 7; see also Roe , 875 S.W .2d at 657 (“ The plaintiff is deeme d to ha ve discovere d the rig ht of ac tion if he is awar e of f

acts sufficie nt to put a rea sonable pe rson on notice that he has suffe red an injury as a r esult of wrong ful conduc t.”). “ I t is knowledg e of f acts suff icient to put a plainti ff on notice that an inj ury has bee n sustained which is cr ucial.” Sta nb ur

y , 953 S.W .2d at 678. Such knowledg e includes not only an awa rene ss of the injury , but-6-

also the tortious orig in or wrong ful nature of that injury

. Ha tha way v . M idd le Te nn esse e An esth esio log

y , P .C. , 724 S.W .2d 355, 359 (Tenn. A pp. 1986).
Shadrick, 963 S.W .2d at 733-34. The plaintiffs concede that they l earned the sc rew s extende d into the spinal cana l in June of 20 02 ; ne ve rthe le ss, the y c on te ndthe y w e re no t to ld p ri or to Aug us t 11, 2 00 3, that th e de fe nd a nts wer e negl ig e n t, th a t th e p la c e me n t o f th e s c r e w s w a s in c o rr e c t, o r th a t th e s u r g e r y h a d n o t b e en pr op e rl y d on e . T he plaint if fs arg ue that th e y d id n ot kno w andc ou ld n ot h a ve dis c ov e re d the ir c aus e of ac tion until August 11, 2003, when Dr . Gorne t told them the plac ement of the scre ws violated the acc epted standa

rd of c are an d wa s t h e li kely cause of Mr. Brandt’s incre ased pain and bac k pro b le ms
. W e , h o w e v e r , h a v e d e te r mi n e d th a t th e p lain ti f f s h a d k n o w le d g e o f e n o u g h f a cts by September 18, 2002, suf

ficient, a s a matter of

law, to put a re asona b l e p er s o n on notice that Mr. Brandt had suff

ere d an injury as a

result of the w rongful conduc t of the def endants.
It is not necessa

ry that the plainti ffs “ actua lly know that the injury constitutes a brea ch of the appropriate lega l standard” in order to discove r that they ha ve a right of action against the defe ndants. Stanbury v. Bac ardi , 953 S.W.2d 671, 677 (Tenn. 1997)

. The re levant inquiry is when the plaintiffs bec ame awar e of fac ts sufficie nt to put a re asonable person on notice that he or she has suffe red an injury as a r esult of the def endants’ w rongful conduc t. Pe ro ’s Ste ak & Sp ag he tti Ho us e , 90 S.W.3d at 621 (c iting Shadrick , 9 63 S.W .2 d at 73 3; Roe , 875 S.W.2d 653). The discovery i ssue presented turns on what the plaintiffs learned from Dr. Rupert and Dr

. Kern during the re spective visits with the two doctors on June 18, 2002. The re cord makes it crystal c le ar that w he n Mr

. Br a nd t wa s e xa min e d b y D r. Rup e rt on Ju ne 18 , 2 00 2, that D r. Rup e rt be c a me very c oncerned whe n he dete rmined the pe d i cl e s cr ew s were extending into Mr. Brandt’s spinal cana l. Moreover , the plaintiffs we re well awa re of Dr. Rupert’s conce rn bec ause the y wer e sitting with Dr. Rupert whe n he called t o consult with Dr. Kern and during the conver sation he expr essed his conce rn. This fac t was established w hen Dr . Kern’s deposition was take n and he c hara cterized the level of

conce rn expr essed by Dr

. R u p er t in that telephone c onversation as though Dr. Rupert was “ fr ea k i n g o u t ” over the fa ct the scr ews we re e xtending into the spinal cana l. Furthermore, beca use of Dr . Rupert’s leve l of conc ern, Dr. Kern agre ed to an immediate sur gical consult with the plaintiffs. The r ecor d also reve als, as Mrs. B ra n d t acknow ledged, that Dr . Rupert informed the plaintiffs that Mr. Brandt’s pr oblems, in cl u d i n g h i s back pain, may be re lated to the scr ews e xte nd ing int o th e sp ina l c a na l. As Dr. Rupert had ar

range d, the plaintiffs immediately went to the office of Dr. Kern for the neurol o g ic a l s u r g ic a l c o n s u lt

. D u r in g th e o f f ic e v is it w ith D r
. K e r n o n J u n e 1 8 , 2 0 0 2 , Dr. Ke rn described the placement of the s cre ws as “the most badly pl ace d scre ws” he had seen. The ba lance of t he office visi t with Dr. Kern pertained to the possible bene fits and complications pre sented by re mov ing the sc re ws . I n o rd e r t o o btain m or e inf orma tio n b e fo re makin g a re c omm e nd ati on to remove or not remove the scre ws, Dr. Ke rn orde red f urther dia gnostic tests and schedule d a followup vis it w iththe plaint if

fs

.T h i s co n v ersa t i o n i s reflec t ed i n D r. M cC o n n ell ’s m ed i ca l rec o rd s. 7

A c aus e of

a ct i on ba s ed on t he l ac k of info rm ed c o ns ent s t em s f r om t he pr em i s e t hat a c om pet ent pa t i ent 8

s houl d be a l l ow ed t o f or m ul at e an i nt el l i gent , i nf or m ed de ci s i on about s ur gi ca l or ot her t r ea t m ent proc edur es t he pat i ent u n d e rta k e s. Sh ad r i ck , 963 S. W

. 2d a t 733 ( ci t i ng H o u sh v . M o rris , 8 1 8 S .W .2 d 3 9 , 4 1 (T e n n . C t. A p p . 1 9 9 1 ))

. -7- Mr. Brandt sought treatment from Dr. Francis J. McDonne ll on September 18, 2002. What was significa nt about this visi t was that Mr. Bra ndt informed Dr

. M cD o n n el l t h at he be lieved the pedicle sc rew s in his spinal cana l w ere a cause of his ba ck pain, a nd he wa s “anxious” f or the scr ews to b e re mov e d. Al tho ug h M r. Br a nd t ha d b e e n s e e n b y D r. McD on ne ll p re vio us ly, it w a s o n th is oc c a sio n, Se pte mbe r 1 1, 20 02 , th a t Mr . Br a nd t f ir st i nf orme d D r. Mc Do nn e ll that he ha d p e dic le scre ws extending into his spinal cana l, and that he wa s anxious to have the sc rew s removed. 7
The de fendants insis t the plaintiffs had knowle dge of f acts by Septembe r 18, 2 0 0 2, which wer e suff icient as a matter of la w to put a re asonable person on notice that Mr. Brandt had suf fer ed an inj ury as a result of t he wrongful conduct of the defendants. The plainti ffs, however, contend the fac ts known by the plaintiffs by that date wer e n o t sufficient. In support of their conte ntion, the plaintiffs rely on Shadrick, wher ein t h e court denied summary judgment. Like the case at bar , the issues in Shadrick perta ined to the placing of pedicle sc rew s in the back of the plaintiff. Shadrick , 963 S.W.2d at 728.
The medical malprac tice claim in Shadrick was ba sed on the lac k of informe d consent. Mr. Shadrick c ontended that Dr. Coker did not inform hi m prior to the s urgery that pedicle sc rew s were going to be implanted in his back, much less that the scre ws wer e expe rimental in nature or that there wer e spec ific and material risks assoc iated with their use. Id . at 731. 8
Like traditional medica l malprac tice ca ses involving professional negligenc e, informe d c on se nt c a se s a

re su bject to the on e -y e ar s ta tut e of lim itatio ns a ndthr e e -y e ar s ta tut e of re po se provided for

in Tenn. Code Ann. § 29- 26-116. Id . at 733. For a period of almost three ye ars f ollowing the s u rg er y at issue, the sole sourc e of Mr

. Shadrick’s information and treatment for his bac k was Dr. Coker, the defendant, who perf ormed the surgery. Id. at 734. The S upreme Court determined that although Mr. Shadrick w as informe d that the pedicle scre ws had be en plac ed in his spine, that fac t a lone did not constitute notice that he had sustained “a n injury.” Id. The Court also dete rmined that Mr. Shadric k had no rea son to suspect that he had sustaine d “an injury” as a re sult of Dr. Coker’ s “wrongf ul conduct” until he sa w a tele vision show that reve aled the experimental nature and possible conse quence s of the surge ry. Id . at 734-35.
Ov e r f ou r y e ars a ft e r t

he pe dic le sc re ws we re imp la nte d inhis ba c k, Mr . Sh a dric k f ile d s uit against Dr. Coke r on the grounds of alleged me dical malpra ctice, lack o f i n formed consent and battery. Id. a t 72 9. It was also a lle ge d th a t D r. Cok e r f ra ud ule ntl y c on c e a le d th e “ true fa c ts conce rning [his] ac tions and the true nature of the pedicle or back sc rew s and re lated har dwar e.” Id

. Mr . Sh a dric k c la ime d th a t prior to the Ma

rc h 1 2, 19 90 su rg e ry , h e wa s n ot i nf orme d th a t pe dic le scre ws would be plac ed in his spine, and when he was informed by Dr. Coker that scre ws had be en u s ed i n t he surge ry, he w as told by Dr. Coker that the scre ws wer e “r outine treatment.” Id . Mr.-8-

Shadrick a lso alleged that Dr. Coker never tol d him the pedicle scre ws wer e experimental, or that the s cre ws had not been approve d by the Food and Drug A dminist ration for use in spinal surgery, or that there wer e risks assoc iated with their use in the spine

. Id . at 729-30. Insisting the 1994 suit was tim e bar red, D r. Coker c ontended the one -yea r s t at u te of limit ations began to run w hen Mr. Shadrick had surge ry on Mar ch 12, 1990, and w as told upon waking up fr om the surgery that the scre ws wer e impl an t ed i n h is back. Id. at 730. This was something Mr. Shadrick knew he had not a uthorized befor e the surgery, and he kne w he ha d rec eived the surgica l implants wit hout being informed of any of the potential ris k s o r c o mp li c ations associate d with their use. Id. Dr . Co ke r a lso c on te nd e d th a t Mr

. Sha dric k kn e w or sh ou ld ha ve kn ow n o f h is cause of action by September of 1990 beca use Mr. Shadrick knew that one of the scre ws had broke n beca use he ha d to have surge ry in September 1990 to repa ir the broke n scre w, or by Nove mber of 1990 when Dr . Coker oper ated a gain, this tim e to re move al l o f the pe dicle scr ews. Id. at 729-31. The Supreme Court, how ever , was not pe rsuade d that the above fac ts compelled a r easona ble per son to c on c lud e that Mr . Sh a dric k k ne w or re a so na bly sh ou ld h a ve kn ow n th a t hi s p a in w a s “ the re su lt of wrongful or tortious conduct on the pa rt of Dr . Coker.” Id

. at 735. This was due in significant part to the fac t that throughout the critical time period, Mr. Shadrick’s sole sour ce of information was Dr

. Coker. Id. at 734-35. As the c ourt explaine d: Although Shadrick wa s told by Dr. Coker t h at the scre ws had be en put in his back when he woke up f

rom the Mar ch 12, 1990 surge ry, he was also told at that time that the screws w ere “rout ine t reatment” for the type of surgery he had undergone . The fac t that Shadrick wa s informed that the sc rew s had bee n put in his back afte r the surgery “did not mean a nything to [him] because nobody ev er told [him] about any ris k of inj ur y or an y pr ob le ms tha t c ou ld b e c au se d b y the sc re ws . At the time, [he] had no idea that the s cre ws wer e experimental, that they ha d not been a pproved by the F oo d a ndDr

ug Ad min ist

ratio n f or us e in the sp ine , o r that th e y w ou ld c a us e [him] any pr oblems. ” Indeed, it was not until Decembe r 17, 1993 while watching television that Shadrick lea rned that pedicle screws w ere experimental, that they had not been a pproved by the Food and Drug Administration for use in the spine, and that such scr ews ha d been found to c ause a number of pr oblems in patients. Until seeing the television program Shadrick had be en “le d to believe that [he] ha d undergone a routine proc edure . . . .” As a rea so na ble lay pe rso n, Sh ad ric k c ou ld h av e be lie v e d D r. Coker w h en h e i n

formed him that the screws were routine for use in back -fusion surgeries, espe cially since D r. Coker had nev er disclosed any ri s ks or potential
c om pli c ati on s re lat e d to the us e of the sc re ws o r e v e n th e ir e x pe rim e nta l na tur

e
.

. . . . Furthe rm o re , it is si gnificant that Dr . Coker off ere d a number

of expla nations for Shadrick’s c ontinuing back problems. Dr

. Coker attributed the failure of the sc rew that broke to Shadric k’s re peate d falls o n his buttocks. He attributed Shadric k’s c on tin uin g p a in t o f

ir st an inf la mmatory pro ble m, the n to sc arring abo ut w hic h li ttl e could be done , and then f

inally to Shadrick’s psychological state. At no time did Dr. Cok e r attribu te Sha dric k’ s c on tin uin g p ro ble ms t o th e ins tall ati on of the pe dic le scre ws. It was not until Dec ember 1993 that Shadrick realize d that the pedicle scre ws-9-

wer e not “r outine treatment” and that ther e we re specific , materia l risks associated w ith th eir use. A s Shadrick put it, “I did not know or sus pect until Dec embe r 17, 1993 that the implants pl aced in me by Dr. Coke r . . . were the c ause of my problems.”
Vi e wi n g t h i s e v i d e n c e i n t h e l i g h t m o s t f a v o r ab l e t o S h a d r i c k a n d a l l o w i n g a ll rea sonable infe renc es in his favor, w e conclude that there is evidence in the rec ord from which a

jury could re asonably find that Shadrick was r easona bly unawar e of the wrongful or

tortious origin of his injury until Decembe r 1993. Dr. Coker’s argume nt that Shadrick was aware of his claim in 1990 rings hollow gi ven that Shadrick was neve r informed of the r isks involved in the i nstallat ion of pedicle screws in his spine, was ne v e r to ld tha t suc h me dic al de v ic e s were e x pe rim e nta l, was tol d that

the sc re ws we re “ro uti ne tre atm e nt, ” an d wa s le d to be lie v e tha t hi s c on tin uin g d iff ic ult ie s we re due to a number of problems, none of which were related to the i mplantation of t he sc re ws . G ive n th e se c ir c ums ta nc e s, a jury c ou ld f indthat Sh a dric k h a d n o r e a so n to suspect that he ha d sustained an injury re s u l t i n g from Dr . Coker’s wr ongful or tor t i o u s co n duct until Dece mber 1993. Dr . Coker has not met his burde n of demonstrating that no genuine issue of materia l f

act exists a s to when the statute of limit ations began to run.
Shadrick , 963 S.W.2d at 734-36 (e mphasis added)

. Like Mr. S hadric k, Mr. and Mrs. Brandt di d not have a factual basis upon which to s uspect that an injury had oc curr ed as a re sult of the surgery by Dr. McCord and Dr. Fournier for more than a yea r following the surge ry at issue. How ever , that cir cu m s t an ce change d when Mr. Brandt was examined and informed by Dr . Rupert and Dr . Kern on June 18, 2002, of t he fa ct the scr ews we re e xte nd ing int o M r. Br a nd t’ s sp ina l c a na l, that th is w a s n ot norma l, an d th a t Mr . Br a nd t’ s b a c k p a in may be r elated to the sc rew s protruding into the spinal cana l. As Dr. Rupert explained, “you don’t have a pedicle sc rew in your spinal cana l and think it’s normal.” More over, D r. Ke rn expla ined that the place ment of the scre ws was, a s he desc ribed it, “the most badly plac ed scr ews” he had e ver se en. The information provided to the plaintiffs by Dr. Kern and Dr. Rupert distingui shes this c ase f rom Shadrick be c aus e the plaint if

fs ha d th e be ne fi t of

sig nif ic a nt m e dic a l inf

orma tio n a la yp e rs on c ou ld understand in c ontrast to Mr. Shadrick w ho had no such information. Having distinguished the fac ts of this case with Shadrick , w e ha ve c on c lud e d th a t Shadrick does not c ompel reve rsal in this case . We ha ve also de termined that the pla intiffs had knowledge of fa cts that wer e suff

icient to put a re asonable person on notice by September 18, 2002, as a matter of la w, that Mr . Br a nd t ha d s uf fe re d a n in

jury a s a re su lt o f the wr on gf

ul c on du c t of

the de fe nd a nts

.

F R AUDUL EN T C ONC EA LME NT The plaint i ff s ’ sec ond argume nt on appea l is that the one-yea r statute of limitations was tolled due to fraudulent conceal m en t o n t h e part of the defe ndants. Much, but not all of the-10-

plaint if fs ’ c on c e a lme nt a

rg ume nt i s b a se d on a

le tte r D r. Mc Cor d w ro te to M r. Br a nd t im me diate ly following his telephone conve rsation with Dr. Ke rn on June 18, 200 2

. T h e p laintiffs contend that the combination of Dr . McCord’s “silence” since the surgery, along wit h what they c hara cterize a s “overt misre prese ntations” in the June 18, 2002 letter c onstitut e fr audulent conc ealment. The letter a t is su e re a ds a s f

oll ow s:
De ar M r. B ra

ndt: This is a follow up afte r a discussion with Dr. Matthew Ker n today

. He ha d followed with y ou this afternoon a

nd noted the lumbar sc rew tips penetr ate the posterior bone and cor tex and are in the spinal c anal. After a discussion, y ou expressed “sur prise” that y ou wer e uninforme d of this occur renc e. The scr ews a

nd instrumentation are utiliz ed to p rovide a dditional stabili ty and incre ase the chanc es of he aling . As long as the scr ew e nds do not cause se vere nerve damag e and ha

ve re asonable purcha se. [sic] They can be left in place

. R em o v i n g s cr ew s o r i n s tru m en t at i o nwi th o u ts er i o u s n erv e co mp ro m i s e o r d am age as we have pr eviously

discussed would plac e you at increas ed ri s k wi thout a clea r diag nosis or purpose. The x -ra y s might “look be tter” but this will not necessar ily be a be ne fi t f or y ou . You c ou ld die or have se ri ou s in jur y in a n atte mpt to r e mov e the m. We discussed this situation acc ording to my rec ords over a y ear ag o, on May

8, 2001. Yo ur x-r ay s w e re pla c e d on th e bo ard wh e n I re vie we d th e sit

uatio n in c lud ingmy c on c e rn s w ithbo th you and Mr s. B ra ndt. I of fe re d to obta in furt

he r e va luatio n; b ut, y ou felt as your situation c linically was not seve re, a

nd g iven y our adva

nced a g e and health par ameter s, that work up (pe r your re quest) wa s not pursued. As there is no se ve re ne rv e inj ur

y or dama g e , I

fe lt that w a s a

re a so na ble re qu e st.
As y o u m ay

rec all, a fur

ther wor k up ultimately

was pe rfor

med. We considere d surg ic a l in te rv e nti on

a t th e e nd

of la st ye ar, a g a in h avin g re vie we d th e x-r ay s w ith y ou. Iprese nted this information to various spine surg eons who felt st rong ly that any surg ery to remove the scre ws when there is no sever e nerve damag e had a signific ant risk and ther efor e, wa s not recommende d.
Ie ve n ma de an a

pp ointme nt with you

to s pe ak w ithDr . D avid Dye r A pr il o f t his y ear . He a lso believed that the risk of surg ery g iven the clinical situation would be ve ry signif ic ant.
Had sc rewplace ment cause d nerve injury such as f oot drop, then I would have long ag o remove d the scre ws. As y our situation stood at y our l ast offic e visit, there wa s no t a c le ar and c omp e lli ng re a so n to put y ou thr ou g h the sig nif ic ant a nd se ri ou s r isk to remove the se.-11-

Simpl y beca use the x-ray s appea

r less than pe rfe ct does not mean an injury or damag e has oc curr ed or that y ou should be put thr oug h the risk of a signific ant and p o t e n t i a l l y d an g e r o u s s ur g e r y. Th e re are oth e r f

a c tor s invo lve d s uc h a s your ag e , d e g re e of he a lin g , a

nd so fo rt h which fa ctor into and c omplicate the ove rall picture

. Ultimately , it is m y

desire that y ou have as much pain re lief as possible. Eve n during our first visit, y our pain wa s signific ant and s ev er e. I believe the best pain re lief oc c ur re d p os t- op e rativ e ly

wh e n w e ha d imm e diate g oo d se c ur ity to your s pin e . T his surg ery in question is such an example.
There are other less risky alternatives. As we have pre viously discuss ed, spine surg ery is complex and diffic ult, without alway s perf ect r esults. I sincere ly want the best possible outcome for y ou and remain ava ilable to speak or meet with y ou at any po int

. S i n c e r e l y, /s/ David H. Mc Cord, M.D. Although we find no e vidence of “misre prese ntations” in the l etter, overt or otherwise, that fac t is rende red imm aterial beca use t he plainti ffs were r ece iving independent medica l advice f rom a nu mbe r of do c tor s d uring the re le va nt t ime pe ri od , J un e of 20 02 thr ou gh Se pte mbe r o f 2 00 2. Th us , whether Dr. McCord was sil ent or not, or whether he “misrepr esente d” the f acts is negated by the fac t that at least two other doc tors provided the pla intiffs with more than suff icient information upon which a r easona

ble per so n would conclude that Mr. Brandt had suf fer ed an injury a s a re sult of a wrongful a ct by Dr. Mc Cord and/or Dr . Fournier on De cembe r 8, 2000.-12-

In orde r to establish fraudulent conce alment, a plaintiff m ust prove the following essential e le me nts : (1) that the de fendant took a ff i rm at i v e action to conc eal the c ause of action or rema ined silent and fa iled to disclose materia l fac ts despite a duty to do so; (2) the pla intiff could not have disc overe d the ca u s e o f ac tion despite exer cising rea sonable c are and diligence ; (3) the de fendant was aw are of the wr ong; and (4) c oncea lment of materia l information from the plaintiff.
Shadrick , 963 S.W.2d at 735. Based upon our r eview of the re cord, w e find the rec ord demonstrates that the plaintiffs had sufficie nt information to discover their cause of action as early as June of 2002, but in no event later than September

18, 2002. Having discove red the cause of ac tion no later than September of 2002, the plaintiffs, there fore , cannot e stablish the essential eleme nt that they “could not have discover ed the cause of action despite e xerc ising reasona ble ca re and diligence.” There fore , the plaintiffs fa iled to p ro ve the e sse nti a l e le me nts re qu ir e d to e sta bli sh fr a ud ule nt c on c e a lme nt.
I N C ONCL US I ON For the fore going rea sons, w e aff irm the judgment of the trial court. This c ase is re manded for f urther pr ocee dings consistent with this opinion a nd costs of this a ppeal are assessed a gainst the plaint if fs

.

___________________________________ FRANK G. CLEMENT, JR., JUDGE