Chambers v. Semmer
| Decision Date | 03 July 2006 |
| Docket Number | No. E2005-01519-SC-S09-C.,E2005-01519-SC-S09-C. |
| Citation | 197 S.W.3d 730 |
| Parties | Mary Jane CHAMBERS, et al. v. John R. SEMMER, M.D., et al. |
| Court | Tennessee Supreme Court |
Gary G. Spangler and Travis J. Ledgerwood, Knoxville, Tennessee, for the Appellant, John R. Semmer, M.D.
Edward G. White, II, and B. Chase Kibler, Knoxville, Tennessee, for the Appellant, Kenneth Cofer, M.D.
Timothy A. Priest and H. Stephen Gillman, Knoxville, Tennessee, for the Appellees, Mary Jane Chambers and J. Clayton Chambers.
E. RILEY ANDERSON, J., delivered the opinion of the court, in which WILLIAM M. BARKER, C.J., and ADOLPHO A. BIRCH, JR., JANICE M. HOLDER, and CORNELIA A. CLARK, JJ., joined.
We granted review in this medical malpractice case to determine whether a hemoclip that is intentionally used but negligently placed and negligently left in a patient's body following surgery may be considered a "foreign object" that establishes an exception to the one-year statute of limitations and the three-year statute of repose. The trial court denied the defendant physicians' motions for summary judgment after finding that a hemoclip may be a "foreign object" under Tennessee Code Annotated section 29-26-116(a)(4) (2005). Although the trial court granted an interlocutory appeal, the appeal was denied by the Court of Appeals. See Tenn. R.App. P. 9. We granted review and now affirm the trial court's order denying the defendants' motions for summary judgment for the reasons set out in this opinion. The case is remanded to the trial court for further proceedings.
This interlocutory appeal involves a medical malpractice action filed by the plaintiff, Mary Jane Chambers ("Chambers"), against the defendants, Dr. John R. Semmer ("Semmer") and Dr. Kenneth Cofer ("Cofer"). The following summary of the proceedings is taken from the pleadings, affidavits, and deposition excerpts filed by the parties.
On December 1, 1997, Chambers was examined by Dr. Semmer because of her complaints of acute vaginal discharge. According to Dr. Semmer's affidavit, after a pelvic examination of Chambers revealed a mass, he ordered an abdominal CT scan. The CT scan showed a complex mass with probable involvement of the left ureter,1 as well as three cystic lesions in the liver. Semmer ordered an exploratory laparotomy, which is a surgical incision into the abdominal wall, to remove the mass, which he believed was obstructing the left ureter.
On December 12, 1997, Chambers met with another physician, Dr. Cofer, for a consultation regarding the mass found on the abdominal CT scan. According to Dr. Cofer's affidavit, Chambers had a complex mass, a partially obstructed left ureter, enlarged lymph nodes, and loss of fascial planes on her left pelvic sidewall.
On December 18, 1997, Drs. Semmer and Cofer performed an exploratory laparotomy to remove the suspicious mass. Both Dr. Semmer's and Dr. Cofer's affidavits state that Semmer removed the left pelvic mass and that Cofer performed a ureterolysis of the left ureter. During the surgery, hemoclips2 were intentionally placed on Chambers' posterior uterine arteries to control bleeding. Although a vessel loop3 was placed on the ureter for identification, both doctors stated that a hemoclip was not used on the ureter. Moreover, Dr. Semmer stated that the vessel loop was removed from the ureter before the surgery was completed and that pre- and post-operative equipment counts showed "that all vessel loops were accounted for and removed ...." Dr. Cofer likewise stated that the vessel loop count "indicat[ed] removal of all vessel loops from Chambers' body before the conclusion of the procedure."
After the 1997 surgery, Chambers recovered and suffered no symptoms until January of 2002, when medical tests demonstrated that her left kidney was not functioning. On January 6, 2003, she filed this medical malpractice complaint against Drs. Semmer and Cofer alleging that the damage to her left kidney had been caused by a hemoclip that had been intentionally used but negligently placed and negligently left on her ureter following the 1997 surgery.
By March of 2003, Drs. Semmer and Cofer each had filed motions for summary judgment. They argued that Chambers' action was barred by the one-year statute of limitations and the three-year statute of repose because the surgery had occurred in 1997 and the complaint was not filed until January of 2003. See Tenn.Code Ann. § 29-26-116(a) (2005).
In response, Chambers argued that the complaint was timely because the hemoclip left in her body after the surgery was a "foreign object" under Tennessee Code Annotated section 29-26-116(a)(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 the action shall be commenced within one (1) year after the alleged injury or wrongful act is discovered or should have been discovered.
(Emphasis added).
Chambers relied on the affidavit of Dr. Gerard M. Callaghan, who stated "that one of the [hemo]clips which was intended to be placed on [Chambers'] uterine artery was actually put on the left ureter." He also stated that the "clipping of the left ureter ... blocked the flow of urine from the left kidney with the result that the kidney has become nonfunctional and has atrophied." Dr. Callaghan stated that "[c]lipping the left ureter, and leaving the clip on the left ureter at the conclusion of the surgery[,] are both actions which fall below the recognized standard of acceptable medical practice for obstetrics and gynecology...." He concluded that Drs Semmer and Cofer "should have removed any [hemo]clip that was inadvertently placed on the ureter" and that "it was certainly never intended for a [hemo]clip to be [either] placed on the left ureter or left on the ureter at the conclusion of the surgery."
Chambers also relied on the deposition testimony of Dr. Steven J. Addonizio, a radiologist who stated that a hemoclip had obstructed Chambers' ureter:
My confidence level is 95 percent that it's the clip that is occluding the ureter, as demonstrated on the pictures where in one picture you've got the ureter, the dilated ureter, and you can start seeing the top of the clip. In the next picture, you see the clip. The next picture, you see the ureter that's normal in size. And on the picture where you see the clip, you don't see the ureter anywhere else. So that's why my confidence level is 95 percent that that's over the ureter.
Addonizio stated that "obstruction of a ureter basically kills the kidney."
The trial court denied the motions for summary judgment but granted the defendants' motion for an interlocutory appeal. The trial court stated as grounds that the appeal would prevent needless, expensive, and protracted litigation and that there was a need to develop a uniform body of law on this issue. The Court of Appeals, however, did not grant the interlocutory appeal. See Tenn. R.App. P. 9(c).
After reviewing the defendants' application for permission to appeal and the applicable authority, we granted this appeal.
Summary judgment is appropriate where the trial court determines that the evidence, when viewed in a light most favorable to the non-moving party, raises no genuine issues of material fact. See Bain v. Wells, 936 S.W.2d 618, 622 (Tenn. 1997). This Court's review of a trial court's summary judgment ruling is de novo with no presumption of correctness. Id.; see also Nelson v. Wal-Mart Stores, Inc., 8 S.W.3d 625, 628 (Tenn.1999).
The parties agree that the primary issue in this interlocutory appeal is whether the patient Chambers' complaint for medical malpractice was barred by the one-year statute of limitations or the three-year statute of repose. See Tenn.Code Ann. § 29-26-116(a)(1) and (3) (2005). The parties, however, characterize the underlying aspects of the issue much differently. Accordingly, we begin by summarizing the arguments asserted by both sides on appeal.
Drs. Semmer and Cofer argue that a surgical hemoclip intentionally placed in a patient's body with the intent that it permanently remain cannot be a "foreign object" that establishes an exception to the one-year statute of limitations or the three-year statute of repose under Tennessee Code Annotated section 29-26-116(a)(4), even if the surgery is performed negligently. They contend that any other conclusion would eviscerate the statute of limitations and the statute of repose in cases where any object is intentionally inserted into a patient's body with the intent that it permanently remain in the patient; they cite pacemakers, stints, and implants as examples of such permanent objects. In other words, Drs. Semmer and Cofer argue that courts should look to the nature and design of the surgical object in determining whether that object may be a "foreign object."
Chambers, on the other hand, argues that a hemoclip that is "negligently placed and unintentionally left by a physician in a patient's body with no intent that it remain where placed" is a "foreign object" under Tennessee Code Annotated section 29-26-116(a)(4). Chambers disagrees with the defendants' claim that the hemoclip was an object intentionally placed inside her body with the intent to remain permanently; to the contrary, Chambers argues that the defendants did not intend to place a hemoclip on her ureter and certainly did not intend for a hemoclip to remain there permanently. Thus, Chambers urges this Court to conclude that the hemoclip was "negligently left" in her body and was a "foreign object" under section 116(a)(4).
We begin our analysis with Tennessee Code Annotated section 29-26-116(a), which provides in part:
(1) The statute of limitations in malpractice actions shall be one (1) year as set forth in § 28-3-104.
...
(3) In no event shall any such action be brought more than three (3) years after the date on which the negligent act or...
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Digregorio v. Jackson, No. M2006-01547-COA-R3-CV (Tenn. App. 9/21/2007), M2006-01547-COA-R3-CV.
... ... Code Ann. § 29-26-116(a)(4). This exception applies to both the one year statute of limitation and the three year statute of repose. Chambers v. Semmer, 197 S.W.3d 730, 737 (Tenn. 2006). Mr. DiGregorio notes that his complaint was filed less than a year after Dr. McCalla discovered the ... ...