Shadrick v. Coker

• Citation: 963 S.W.2d 726
• Parties: Donald R. SHADRICK and wife, Valerie Shadrick, Plaintiffs/Appellees, v. Wesley L. COKER, M.D., Defendant/Appellant.
• Decision Date: 17 February 1998
• Court: Supreme Court of Tennessee

Page 726

963 S.W.2d 726

Donald R. SHADRICK and wife, Valerie Shadrick, Plaintiffs/Appellees, v. Wesley L. COKER, M.D., Defendant/Appellant.

Supreme Court of Tennessee at Nashville.

Feb. 17, 1998.

G. Thomas Nebel, John B. Carlson, Williams/Nebel & Associates, P.C., Nashville, for Plaintiffs-Appellees.

Sam B. Blair, Jr., Baker, Donelson, Bearman & Caldwell, Memphis, for Amici Curiae, American Medical Association and Tennessee Medical Association.

Robert T. Trentham, G. Brian Jackson, Trabue, Sturdivant & Dewitt, Nashville, for Defendant-Appellant.

OPINION

DROWOTA, Justice.

In this lack of informed consent medical malpractice action, the defendant, Wesley L. Coker, M.D., appeals from the Court of Appeals' reversal of summary judgment entered by the trial court in his favor based on the expiration of the applicable statute of limitations and statute of repose. The issue for our determination is whether the claims of the plaintiffs, Donald Shadrick and Valerie Shadrick, are barred by the one-year statute of limitations or the three-year statute of repose for medical malpractice actions. See Tenn.Code Ann. § 29-26-116. ¹ After carefully examining the record before us and considering the relevant authorities, we conclude that disputed issues of material fact exist regarding (1) when the statute of limitations began to run and, (2) whether the fraudulent concealment exception to the statute of repose applies. Accordingly, for the reasons explained hereafter, we affirm the decision of the Court of Appeals to reverse the trial court's grant of summary judgment to the defendant.

BACKGROUND

The plaintiff, Donald Shadrick, injured his back at work in December 1988. He was treated for this injury by the defendant, Wesley L. Coker, M.D., an orthopedic surgeon practicing in Nashville. On March 12, 1990, after three previous surgeries performed by Dr. Coker failed to alleviate Shadrick's back pain, Dr. Coker performed a laminectomy and disc excision. This surgery was done at West Side Hospital in Nashville, which is now Centennial Medical Center. During the March 12 surgery, Dr. Coker inserted "pedicle screws" ² and related hardware into Shadrick's spine to provide stability and help the vertebrae fuse together. According to Shadrick's testimony, which must be assumed to be true for purposes of summary judgment analysis, "no one told [him] before the operation that screws would be implanted" in his back and "nobody ever told [him] about any risk of injury or any problems that could be caused by the screws." When Shadrick woke up after the surgery, he was told by Dr. Coker that the screws had been put in his back and that the screws were "routine treatment" for the type of surgery he had undergone.

Following the March 12 surgery, Shadrick's pain worsened. He would fall on his buttocks when his "leg went out" due to pain. Dr. Coker thought that Shadrick was merely "working through an inflammatory problem." However, an x-ray taken in September 1990 revealed that one of the screws in Shadrick's back had broken on the same side he was having pain. Shadrick underwent surgery that same month to repair the broken screw. Dr. Coker believed that the broken screw was caused by Shadrick's repeated falls on his buttocks.

In November 1990, Shadrick again had surgery on his back. One of the purposes of this surgery was to remove the screws. Shadrick continued to have pain after this surgery. Dr. Coker discussed with Shadrick the possibility that his pain was due to scarring, about which little could be done.

Shadrick continued to complain of pain in his back following the removal of the screws. In March 1991, Dr. Coker and Shadrick discussed Dr. Coker's belief that Shadrick "appears ... not [to] tolerate pain well and there probably is significant evidence he has an emotional component to this [pain] problem." Dr. Coker subsequently referred Shadrick to a psychologist. In September 1991, Dr. Coker wrote a letter to Shadrick's attorney which reflected Dr. Coker's view that Shadrick's pain was psychosomatic because "he has unconsciously grasped the concept of having chronic pain and will not consciously dismiss that from his mind." ³

For over three years following the removal of the screws, Shadrick continued to have pain in his back. Shadrick continued to see Dr. Coker for treatment. At no time did Dr. Coker attribute Shadrick's continued pain to the installation of the pedicle screws. Due to the severity of his back pain, Shadrick has been unable to work.

On December 17, 1993, Shadrick saw a television program (ABC's "20/20") in which a story was done on pedicle screws. It was from this program that Shadrick first learned that pedicle screws were experimental, that they had not been approved by the Food and Drug Administration for use in the spine, and that such screws had been found to cause a number of problems in patients. Until seeing the television program on December 17, 1993, Shadrick had been "led to believe that [he] had undergone a routine procedure and that everything would be all right." Shadrick testified that had he been informed about the true nature of pedicle implants he never would have elected to have surgery involving their use.

On December 16, 1994--approximately four years and nine months after the pedicle screws were implanted in his back--Shadrick filed this lawsuit against Dr. Coker and Centennial Medical Center. ⁴ The complaint alleged medical malpractice, lack of informed consent and battery. The complaint also alleged that Dr. Coker fraudulently concealed the "true facts concerning [his] actions and the true nature of the pedicle or back screws and related hardware." Shadrick claimed that prior to his surgery on March 12, 1990, he was not informed that pedicle screws would be placed in his spine. He stated in an affidavit that after the operation Dr. Coker informed him that screws had been used in the surgery, but that he was never led to believe that the screws were anything other than "routine treatment." According to Shadrick, Dr. Coker never told him that pedicle screws were experimental, that the screws had not been approved by the Food and Drug Administration for use in spinal surgery or that there were risks associated with their use in the spine. Ms. Shadrick sued for loss of consortium.

In response to the plaintiffs' complaint, Dr. Coker filed a motion for summary judgment. He asserted in the motion that the suit was barred by the three-year statute of repose and the one-year statute of limitations found in Tenn.Code Ann. § 29-26-116.

The plaintiffs, in turn, filed the affidavit of Raymond O. Frederick, M.D., who is a surgeon and an expert in back problems. According to Dr. Frederick, pedicle screws in 1990 were experimental in nature and had not been approved by the Food and Drug Administration for use in spinal surgery. Moreover, according to Dr. Frederick, the standard of care in 1990 required Dr. Coker to ensure that patients who were to receive pedicle screw implants were fully advised that those implants were not approved for use in the spine and to ensure that patients fully understood the risks. Dr. Frederick listed several specific items that should have been part of the informed consent obtained by Dr. Coker from Shadrick, such as informing him that pedicle screws were experimental as well as informing him of a list of possible complications and risks associated with their use. ⁵ Because Dr. Coker did not provide Shadrick with the information identified by Dr. Frederick as being required for informed consent, Dr. Frederick concluded that "to a reasonable degree of medical certainty, Dr. Coker ... violated the applicable standard of care with respect to informed consent."

Dr. Coker did not file an affidavit nor did he file any affidavits of experts in response to Dr. Frederick's affidavit submitted by Shadrick. Instead, Dr. Coker relied upon Shadrick's answers to discovery requests in arguing that Shadrick knew or reasonably should have known of his cause of action in 1990 because Shadrick was told soon after the March 12,1990 operation that the pedicle screws had been implanted in his back. Alternatively, Dr. Coker argued that Shadrick's cause of action was barred by the three-year statute of repose.

The trial court granted Dr. Coker's motion for summary judgment. The court found that Shadrick's suit was not saved by the discovery rule because he was told by Dr. Coker right after the surgery on March 12, 1990 that the screws had been implanted in his back, which was something Shadrick knew he had not authorized before the surgery. Further, Shadrick knew by November 1990 that one of the screws had broken and had to be replaced. Thus, he was placed on notice there was a problem with the screws. The trial court also rejected Shadrick's contention that the fraudulent concealment exception to the statute of repose applied because Dr. Coker made no affirmative concealment of the fact that the screws had been implanted in Shadrick's back. The trial judge opined that "[h]ere there was no affirmative concealment and the facts were such that [Shadrick] knew or was on notice of inquiry that the implantation of the screws had been unsuccessful and possibly harmful. Even if the doctor .... should have told [Shadrick] more about the screws, such information does not change the fact that [Shadrick] knew or should have known in 1990 that there was a problem with the screws."

Shadrick appealed to the Court of Appeals. The Court of Appeals disagreed with the trial court's grant of summary judgment and reversed. The court found that there were disputed issues of material fact as to when Shadrick should have discovered his cause of action and whether there was fraudulent concealment on the part of Dr. Coker. The Court of Appeals reasoned that because there was a confidential relationship between Dr. Coker and Shadrick (i.e., doctor/patient), there was an issue of fact as to whether Dr....