Foster v. Harris

• Decision Date: 17 May 1982
• Citation: 633 S.W.2d 304
• Parties: J. B. FOSTER and Bettie Foster, Appellees, v. Richard C. HARRIS, Appellant. 633 S.W.2d 304
• Court: Tennessee Supreme Court

Page 304

633 S.W.2d 304

J. B. FOSTER and Bettie Foster, Appellees, v. Richard C. HARRIS, Appellant.

633 S.W.2d 304

Supreme Court of Tennessee.

May 17, 1982.

J. Kimbrough Johnson, Thomason, Crawford & Hendrix, Memphis, for appellant.

Jack L. Halliburton, Thomas, Halliburton & Weissman, Memphis, for appellees.

OPINION

FONES, Justice.

The issue in this medical malpractice suit is whether plaintiff's cause of action is barred by the statute of limitations. The trial court and the Court of Appeals held that the action was time barred. We reverse.

Plaintiff's complaint alleges that defendant, Harris, a dentist, was performing work on plaintiff's teeth and a dental bridge on October 11, 1975, when defendant lacerated his own finger and plaintiff's lip and that their blood intermingled; that approximately one month later plaintiff became ill and unable to work; that extensive tests were performed and in early January, 1976, plaintiff was informed that he was suffering from serum hepatitis, a disease that can be contacted and passed from one person to another only through blood contact. The complaint further alleges that plaintiff and his physicians conducted a diligent search in an effort to determine plaintiff's contact with serum hepatitis, to no avail, until he returned to defendant dentist on July 21, 1976, at which time defendant informed plaintiff that on October 11, 1975, defendant was infected with serum hepatitis. The complaint expressly alleges that plaintiff's cause of action did arise on or about July 21, 1976.

The complaint was filed on February 11, 1977. The trial court's decree granting defendant's motion to dismiss simply says the complaint was filed more than one year from the date of discovery of the alleged injury. The Court of Appeals held that the date of discovery was when plaintiff found out he had hepatitis, in January, 1976, and rejected plaintiff's contention that this court's decision in Teeters v. Currey, 518 S.W.2d 512 (Tenn.1974), dictated that discovery of the injury and accrual of the cause of action under these facts occurred on July 26, 1976. However, the Court of Appeals held that the complaint "minimally sets forth an action based on fraudulent concealment" and remanded for trial of the factual issue involved therein.

In the continuing saga of when the statute of limitations begins to run in tort cases, this case presents two unique questions. First, was the injury discovered upon diagnosis of the disease or upon discovery that the source of the disease was a negligent act and, second, assuming that discovery of the injury occurred in January 1976, did the statute of limitations begin to run when neither the existence of nor the identity of a tort feasor was known to plaintiff? Our answer to the first question is that the discovery that the source of the disease was a negligent act triggers the statute of limitations. In our opinion the second question requires a negative answer.

In Teeters, after noting that the Legislature had amended the statute of limitations applicable to products liability cases so that plaintiffs would have one year from the date of the injury within which to file suit, in response to the holding in Jackson v. General Motors, 223 Tenn. 12, 441 S.W.2d 482 (1968), we said the following:

"The same considerations of elemental justice would demand a similar rule in malpractice actions. We find it difficult to embrace a rule of law requiring that a plaintiff file suit prior to...