Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court AffirmedJ. STEVEN STAFFORD, delivered the opinion of the Court, in which RICHARD H. DINKINS, J., and W. MICHAEL MALOAN, SP., J., joined.
Al H. Thomas and Aaron L. Thomas, Memphis, Tennessee, for the appellant, Myrtle Robinson, on behalf and as personal representative of Fannie Oliver Zinn.
Jennifer S. Harrison and Lauren Dunavin Callins, Memphis, Tennessee, for the appellees, Kenneth A. Okpor, M.D., and Memphis Lung Physicians, P.C.
MEMORANDUM OPINION1
This is the second case dealing with the same set of facts. See Robinson v. Baptist Memorial Hosp., No. W2013-01198-COA-R3-CV, 2014 WL 3407888 (Tenn. Ct. App. July 11, 2014), perm. app. denied, (Tenn. Dec. 18, 2014) (hereinafter, "Robinson I"). Accordingly, we take our recitation of the facts from our prior Opinion:
In November 2005, Fannie Oliver Zinn ("Decedent") underwent treatment for endometrial cancer. In April 2006, when Ms. Zinn was 88 years old, she was diagnosed with terminal, metastatic cancer. Ms. Zinn opted to forego aggressive treatment, and sought only palliative care for symptomatic relief.
On or about July 19, 2006, Ms. Zinn presented to her primary physician Dr. Hassan Haddad's office, complaining of shortness of breath. Dr. Haddad diagnosed fluid on Ms. Zinn's lungs, placed her on a diuretic and discharged her. On or about July 20, 2006, Ms. Zinn called Dr. Haddad to report that her symptoms had not abated and had, in fact, become worse. Dr. Haddad made arrangements for Ms. Zinn to be admitted to Baptist Memorial Hospital ("BMH"). Further examination at BHM revealed recurrent malignant pleural effusions around her lungs, which were caused by her malignant lung cancer.2 At BMH, Ms. Zinn underwent thoracentesis (i.e., draining fluid off the lung using a needle and local anesthetic), which provided relief. X-rays taken before and after the thoracentesis revealed bi-lateral pleural effusions, and Ms. Zinn was admitted to BMH for further evaluation. The radiology reports for these x-rays were dictated on July 20, 2006 at 7:58 a.m. and 9:12 a.m., and
were transcribed later that day at 3:37 p.m. According to the record, Ms. Zinn's bilateral pleural effusions, which caused both of her lungs to continue to fill with fluid, were a direct result of the spread of her terminal cancer.
On July 20, 2006, Dr. Kenneth A. Okpor, M.D., a pulmonologist/critical care specialist, was consulted to discuss various options for treatment. After examining Ms. Zinn, Dr. Okpor explained three treatment options: (1) repeat thoracentesis as needed, (2) a permanent chest draining tub (Pleurex catheter) for slow and constant draining, or (3) a video assisted thoracic surgery ("VATS") pleurodesis, which involves the infusion of a talc solution into the pleural space surrounding the lungs to prevent a recurrent build-up of fluid. Dr. Okpor recommended option 3, the VATS pleurodesis.
On July 24, 2006, Ms. Zinn underwent a left-sided VATS pleurodesis, which was performed by Dr. Edward Todd Robbins and Dr. Garrettson Smith Ellis. Dr. Robbins testified that, at the time of the VATS procedure, he was aware that Ms. Zinn was suffering from bi-lateral effusions. Ms. Zinn died on July 27, 2006 as a result of complications from her operation.
After his initial examination of Ms. Zinn, on July 20, 2006, Dr. Okpor dictated a consult note at 3:37 p.m. on that day.3 Dr. Okpor had allegedly reviewed the x-rays and report from July 20, which showed bi-lateral effusions, and his initial consultation states that: "Chest x-ray was reviewed and it showed a large left-sided pleural effusion." On August 7, 2006, after Ms. Zinn's death, Dr. Okpor logged onto the BMH website to authenticate his July 20, 2006 consult note. During his authentication, Dr. Okpor edited the original note. Specifically, in his authenticated note, he diagnosed Ms. Zinn with bi-lateral pleural effusions, whereas his original consultation note indicated only a "left-sided effusion." Although pre-authenticated versions of doctors' notes are not usually saved in the BMH system, here, Dr. Okpor's pre-authenticated version of Ms. Zinn's information was preserved because Dr. Robbins had printed a hard-copy of the
consultation note in preparation for Ms. Zinn's July 24, 2006 VATS surgery. Dr. Robbins placed the copy of Dr. Okpor's pre-authenticated note in Ms. Zinn's medical record, where it was allegedly discovered by plaintiffs some five years later, . . . .
Robinson I, 2014 WL 3407888, at *1-*2 (footnotes in original with omissions noted).
Ms. Zinn's daughters, Myrtle Robinson and Willette Jeffries, as their mother's personal representatives (together, "Original Plaintiffs"), filed suit against BMH, Dr. Robbins, Dr. Ellis, and Dr. Haddad in the Circuit Court at Shelby County, claiming healthcare liability. BMH, Dr. Ellis, and Dr. Haddad all obtained summary judgment in their favor, leaving only Dr. Robbins as a viable defendant. Prior to a hearing on Dr. Robbins' motion for summary judgment, Original Plaintiffs were granted leave to amend their complaint to aver a cause of action against Dr. Robbins for lack of informed consent. Dr. Robbins' summary judgment motion was, therefore, held in abeyance pending the amendment.
Eventually, Original Plaintiffs filed another motion to amend their complaint, this time to add Dr. Okpor and his employer, Memphis Lung Physicians, P.C., ("MLP," and together with Dr. Okpor, "Appellees") as defendants. According to our prior Opinion:
[Original Plaintiffs] were granted leave, on August 19, 2011, to file a second amended complaint, which was entered on February 1, 2012. . . . Concerning Dr. Okpor and MLP, the second amended complaint states,
27. On July 20, 2006, when Kenneth A. Okpor, M.D. reviewed Ms. Zinn's chest x-rays . . . . Dr. Okpor had a duty to comply with the recognized standard of acceptable medical care in Shelby County and to diagnose Ms. Zinn's bi-lateral pleural effusions and recommend treatment appropriate under the circumstances.
28. Dr. Okpor failed to diagnose Ms. Zinn's bi-lateral effusions and instead diagnosed only a left-sided pleural effusion. This failure was a negligent deviation from the recognized standard of care and it caused injury as follows.
29. Dr. Okpor's aforementioned negligence caused the injurious VATS procedure to be performed. . . . Dr. Okpor relied on his negligent diagnosis of only a left-sided pleural effusion and recommended that Ms. Zinn undergo a left-sided VATS procedure by Dr. Robbins rather than the other options ... such as pleurex catheter or repeat thoracentesis. Dr. Okpor's recommendation was accepted and implemented.
30. If Dr. Okpor had complied with his duty and diagnosed Ms. Zinn's bi-lateral pleural effusions, Dr. Okpor would not have recommended that Ms. Zinn undergo a left-sided VATS procedure rather than the other options . . . and Ms. Zinn would not have undergone a VATS procedure.
Robinson I, 2014 WL 3407888, at *3.
Eventually, Appellees filed a motion for summary judgment, alleging that the Original Plaintiffs' claim was barred by the statute of repose. On December 11, 2012, the trial court granted the motion, concluding that the Original Plaintiffs failed to show "an affirmative concealment of material fact" as would be required to toll the statute of repose. The trial court certified its judgment as final pursuant to Rule 54.02 of the Tennessee Rules of Civil Procedure. Original Plaintiffs appealed and this Court affirmed, concluding that the claim against Appellees was barred by the statute of repose. Id. at *14-*15.
After the grant of summary judgment in the healthcare liability action, on July 22, 2013, Plaintiff/Appellant Myrtle Robinson4 ("Appellant"), as personal representative of Ms. Zinn, filed the instant lawsuit, this time naming only the Appellees as defendants. The complaint alleged causes of action for misrepresentation and conversion (for the loss of the right to maintain a wrongful death action). Specifically with regard to misrepresentation, the complaint averred:
16. When Dr. Okpor edited his 7/20/2006 consult note on August 7, 2006, in the manner in which he did [i.e., "effectively eras[ing] all evidence of Dr. Okpor's failure to diagnose Ms. Zinn's right-sided pleural effusion"], he thereby represented that he had diagnosed Ms. Zinn on July 20, 2006 as having both a left-sided pleural effusion and a right-sided pleural effusion. This representation was false, because on July 2006, Dr. Okpor did not diagnose Ms. Zinn as having a left-sided effusion and that is why he recommended a VATS procedure.
17. When Dr. Okpor made the aforementioned false representation on August 7, 2006, he knew it was false; and he intended that anyone looking at the medical record would rely on the false representation and thereby refrain from taking action against him for his failure to diagnose Ms. Zinn's right-sided pleural effusion.
18. When [Appellant] reviewed Ms. Zinn's medical records, [she] did not know that Dr. Okpor's aforementioned representation was false, and as alleged above . . . , Ms. Robinson relied on the false representation and she was justified in her reliance on the truth of that representation.
19. As a result of Ms. Robinson's reliance on Dr. Okpor's aforementioned false representation, she refrained from
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