Jones v. Morristown-Hamblen Hospital Ass'n, Inc., MORRISTOWN-HAMBLEN

Decision Date19 June 1979
Citation595 S.W.2d 816
PartiesFranklin N. JONES, husband and next of kin of Daphne Ann Jones, Deceased, Appellant, v.HOSPITAL ASSOCIATION, INC., and Dr. Eugene Rutland, Jr., Appellees.
CourtTennessee Court of Appeals

Sidney W. Gilreath, Knoxville, for appellant.

F. Graham Bartlett, of McCampbell, Young, Bartlett, Hollow & Marquis, Knoxville, for Morristown-Hamblen Hospital Ass'n.

Warren Butler, Knoxville, for Dr. Eugene Rutland, Jr.


FRANKS, Judge.

This case presents a question of application of the Medical Malpractice Review Board and Claims Act, codified at T.C.A., § 23-3401, et seq.

Franklin N. Jones, husband and next of kin of Daphne Ann Seals Jones, deceased, brought suit for damages for the wrongful death of his wife against Dr. Eugene Rutland and the Morristown-Hamblen Hospital Association, Inc. Following a hearing and arguments by counsel, the circuit judge granted the defendants' joint motion for summary judgment finding the plaintiff's cause of action barred by the three-year maximum limitations period of the Act. Plaintiff had perfected his appeal to this court, assigning as error the sustaining of the motion.

The legal and factual chronology is as follows:

On May 30, 1970, the decedent underwent the surgical removal of a small mole located on her neck approximately one inch below her ear. The operation was performed at Morristown-Hamblen hospital by her personal physician, Dr. John Caldwell. Miss Seals was fourteen years old at the time of the operation.

The surgically removed specimen labeled "nevus of the neck" was taken to the pathology department where it was visually examined by Dr. Cleland Blake, the chief pathologist working under contract with Morristown-Hamblen. A slide was then prepared from the specimen.

The following morning, June 2, the slide was microscopically examined by Dr. Rutland, a pathologist working under Dr. Blake, and the specimen diagnosed as an "active junctional nevus, skin." The pathological report was sent to Dr. Caldwell who interpreted the diagnosis to mean that the tissue was benign since all tissue of a person this age is active or growing. The decedent was shortly thereafter released from the hospital.

Over the next few years, decedent lived a normal life, completing her schooling, working, and getting married. During that period, she occasionally visited Dr. Caldwell for routine examinations and minor medical problems. On January 10, 1974, she attained her majority.

On December 9, 1974, the Tennessee Supreme Court decided the case of Teeters v. Currey, 518 S.W.2d 512 (Tenn.1974), which applied the "discovery" rule to medical malpractice cases in this state.

On May 1, 1975, the Medical Malpractice Review Board and Claims Act was enacted, effective July 1, 1975.

On December 15, 1975, decedent suffered a seizure and was hospitalized. Tests and exploratory surgery were performed, which revealed the existence of malignancies in the lungs and brain. This occurred on January 13, 1976. Decedent was thereafter transferred to a specialized hospital in Houston, Texas, where her condition was diagnosed as metastatic malignant melanoma. Metastatic means that the malignant cells were transported either by the blood stream or lymph system from the primary tumor to other parts of the body.

Mrs. Jones died on May 31, 1976, at the age of twenty. On January 7, 1977, the decedent's husband filed this suit.

From the numerous depositions submitted during the argument for summary judgment, two facts appear reasonably certain. First, the tissue in the slide was malignant both when it was examined by numerous doctors after the death of the decedent and at the time of the initial diagnosis. Second, the decedent did not discover and, under the exercise of reasonable diligence, probably should not have discovered her condition prior to the exploratory surgery performed on January 13, 1976. With these two points in mind and, for the purpose of this opinion, June 2, 1970, will be considered the date of the allegedly negligent act, and January 13, 1976, will be considered the date of discovery.

At the time the diagnosis of the mole was made, the law in this state, like that in the majority of jurisdictions, was that the statute of limitations for personal injury began to run or, in other words, accrued on the date that the negligent act causing the injury occurred. Hall v. DeSaussure, 41 Tenn.App. 572, 297 S.W.2d 81 (1956). This rule created illogical and often unjust results in several areas of the law, notably product liability and medical malpractice; it was possible for a plaintiff's action to be barred before he could know if its existence, or even before an actual injury occurred.

The facts of this case illustrate that result. Under existing law, decedent had a vested right of action on June 2, 1970. Albert v. Sherman, 167 Tenn. 133, 67 S.W.2d 140 (1934); Bodne v. Austin, 156 Tenn. 366, 2 S.W.2d 104 (1928). Applying T.C.A., § 28-304, the personal injury limitation, and the minor's saving statute, T.C.A., § 28-107, without regard to intervening changes in the law, decedent's action would have been barred one year after her 18th birthday January 10, 1975. This was fully one year before she had any reason to know of the existence of her "right" of action.

Recognizing the injustice of such situations the Supreme Court changed the law in Teeters v. Currey, supra. The holding of the Court in that case is:

We adopt as the rule of this jurisdiction the principle that in those classes of cases where medical malpractice is asserted to have occurred through the negligent performance of surgical procedures, the cause of action accrues and the statute of limitations commences to run when the patient discovers, or in the exercise of reasonable care and diligence for his own health and welfare, should have discovered the resulting injury. All cases contra are overruled. (Emphasis supplied.) 518 S.W.2d at 517.

Under this analysis, decedent's right of action would not have been barred until one year after the discovery of malignancy, January 13, 1977. If the Medical Malpractice Act had not intervened, then, this suit would be timely filed. This result would obtain even if the statute of limitation had run on decedent's right of action before Teeters had been decided. 1 In effect, Teeters created another right of action, independent of the right of action existing under prior law, for that class of persons who do not discover their injuries during the statutory period.

However, under Teeters, that right of action did not accrue until January 13, 1976. In the interim, the Medical Malpractice Act was enacted.

T.C.A., § 23-3415(a) sets out the limitations upon malpractice actions. 2

T.C.A., § 23-3420 establishes the effective date of the Act: "This chapter does not affect any malpractice actions commenced or filed before July 1, 1975." This provision implies a clear legislative intent that the Act be given retrospective application, since any suit filed after July 1, 1975, would fall within the Act's provisions without regard to the date of the negligent act giving rise to the cause of action.

Inasmuch as this suit was filed in January of 1977, the limitation of § 23-3415(a) is applicable to this action. However, there are limitations upon application of the Act to all cases filed after its effective date.

In the recent case of Morris v. Gross, 572 S.W.2d 902 (Tenn.1978), the Supreme Court stated:

It is well settled that a vested right of action is as much property as are tangible things and is protected from arbitrary legislation, whether such right of action be based upon the law of contracts or upon other principles of the common law. Mabry v. Baxter, (11 Heisk. 682) 58 Tenn. 682 (1872); Collins v. East Tennessee, Virginia & Georgia Railroad Company, (9 Heisk. 841) 56 Tenn. 841 (1872); Coombes v. Getz, 285 U.S. 434, 52 S.Ct. 435, 76 L.Ed. 866 (1932); Pickering v. Peskind, 43 Ohio App. 401, 183 N.E. 301 (1930); 16A C.J.S. Constitutional Law § 614 (1956). Such a vested right of action enjoys the full protection of the due process clauses of the Federal and State Constitutions. See State v. Louisiana Oil Refining Corporation, 176 So. 686 (La.App.1937), motion denied, 177 So. 476 (La.App.1937), aff'd 304 U.S. 197, 58 S.Ct. 832, 82 L.Ed 1287 (1938), rehearing denied, 304 U.S. 589, 58 S.Ct. 1044, 82 L.Ed. 1549 (1938).

"Vested rights include not only legal or equitable title to enforcement of a demand but also an exemption from new obligations created after the right has vested. . . . The words (vested rights) are used as implying interests which it is proper for the state to recognize and protect and of which the individual could not be deprived arbitrarily without injustice." 16 Am.Jur.2d Constitutional Law § 421 (1964).

We recognize the general rule that no one has a vested right in a particular remedy for the enforcement of a right of action and, thus, that the legislature ordinarily may change existing remedies for the enforcement of rights, including those which have already vested, without denying due process of law, provided, a substantial remedy to redress that right by some effective procedure is given. Brandon v. Warmath, 198 Tenn. 38, 277 S.W.2d 408 (1955); Hope v. Johnson, (2 Yerg. 123) 10 Tenn. 123 (1826); Gibbes v. Zimmerman, 290 U.S. 326, 54 S.Ct. 140, 78 L.Ed. 342 (1933); 16A C.J.S. Constitutional Law § 614 (1956).

It is equally clear, however, that principles of due process forbid the legislature to abolish a remedy that has been so far carried into operation that the substantive rights of the litigants would be adversely affected if the remedy, as to them, were abolished. Fisher's Negroes v. Dabbs, (6 Yerg. 119) 14 Tenn. 119 (1834); Mabry v. Baxter, supra; Ruecking Const. Co. v. Withnell, 269 Mo. 546, 191 S.W. 685 (1917), aff'd 249 U.S. 63, 39 S.Ct. 200, 63 L.Ed. 479 (191...

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