Sherrill v. Souder

Decision Date28 October 2010
Docket NumberNo. W2008-00741-SC-R11-CV.,W2008-00741-SC-R11-CV.
Citation325 S.W.3d 584
PartiesLou Ella SHERRILL et al. v. Bob T. SOUDER, M.D. et al.
CourtTennessee Supreme Court



Edmund J. Schmidt, III and David Randolph Smith, Nashville, Tennessee, for the appellant, Barbara Pigg.

Jeffrey L. Lay, Dyersburg, Tennessee, for the appellees, Bob T. Souder, M.D. and TransSouth Health Care Center, P.C.


GARY R. WADE, J., delivered the opinion of the Court, in which CORNELIA A. CLARK, C.J., JANICE M. HOLDER, WILLIAM C. KOCH, JR., and SHARON G. LEE, JJ., joined.


This litigation involves a claim of medical malpractice against the two defendants, a physician and the corporation operating his clinical practice, alleging negligence in the prescription of a drug. The trial court granted the defendants' motion for summary judgment on grounds that the suit was barred by the one-year statute of limitations. The Court of Appeals affirmed.

The question before the Court is the propriety of summary judgment on statute of limitations grounds. Although the trial court properly concluded that the cause of action accrued more than a year before the suit was filed, there is a genuine issue of material fact regarding whether the plaintiff was of unsound mind on the date the cause of action accrued, thus tolling the limitations period. Because the suit was not time-barred as a matter of law, the grant of summary judgment must be reversed. The cause is remanded to the trial court for proceedings consistent with this opinion.

This medical malpractice suit was filed by Lou Ella Sherrill and her daughter, Barbara Pigg, against Bob T. Souder, M.D. and TransSouth Healthcare, P.C., a corporation in which Dr. Souder is the sole shareholder (hereinafter “the Defendants). Ms. Pigg was dismissed as a party, but later filed a motion to amend the complaint to substitute herself as the plaintiff after Ms. Sherrill's death. Before considering the motion to amend, however, the trial court granted summary judgment to the Defendants, finding that the suit was filed after the one-year limitations period for medical malpractice actions had passed and that Ms. Sherrill was not suffering from any disability that would justify tolling the statute of limitations. The Court of Appeals affirmed the judgment of the trial court.

Facts and Procedural History 1

On March 11, 2002, Lou Ella Sherrill, an 80-year-old resident of Willow Springs, Missouri, sought treatment for uncontrolled vomiting at the Tucker Clinic in Jackson. Ms. Sherrill, a diabetic who had just been released from hospitalization after a bout with pneumonia, was visiting her daughter, Barbara Pigg, a Tennessee resident. Michael Briley, a nurse practitioner at the Tucker Clinic, conducted an examination of Ms. Sherrill and prescribed a daily dosage of thirty milligrams of Reglan, a drug also known by the generic name metoclopramide. The prescription was filled at a local pharmacy. Because Ms. Sherrill's symptoms did not immediately subside, she was referred to the Digestive Disease Clinic in Jackson, where, on March 18, she received an abdominal ultrasound.

On March 20, Ms. Sherrill was treated by Dr. Bob Souder, a gastroenterologist and the sole shareholder of TransSouth Healthcare, a professional corporation that owned and operated both the Tucker Clinic and the Digestive Disease Clinic. After performing an upper panendoscopy, Dr. Souder made a diagnosis of severe gastroesophageal reflux disorder, a hiatal hernia, and possible gastroperisis and, because of the severity of Ms. Sherrill's condition, informed Ms. Pigg that she “was a very lucky lady that her mother was alive.” Because Ms. Sherrill had not responded to the amount of Reglan that the nurse practitioner had prescribed, Dr. Souder, who regularly prescribed Reglan as “the drug of choice” for the treatment of gastroesophageal reflux disorder, doubled the dosage to sixty milligrams per day.

Dr. Souder increased the Reglan dosage for one month, with refills for five additional months, on his assumption “that ... [his clinic] would be following [Ms. Sherrill] more closely.” 2 Ms. Sherrill did have one follow-up visit with a nurse practitioner at the clinic on April 18 and reported that her nausea and vomiting had ceased. Shortly thereafter, she returned to her residence in Missouri. Dr. Souder's medical records pertaining to Ms. Sherrill's treatment were sent to Dr. Raymond Lewandowski, a family physician in Missouri. A home health agency visited Ms. Sherrill's residence weekly and placed the Reglan into a medication planner. Ms. Sherrill, however, had the responsibility to take her medications at the appropriate intervals.

On May 22, 2002, just over a month after her last visit to the Digestive Disease Clinic, Ms. Sherrill made an appointment with Dr. Lewandowski because of a facial droop and slurred speech. After reporting that she had developed a tremor in her legs and a chewing motion in her mouth, she mistakenly informed Dr. Lewandowski that her sister had suffered from Parkinson's disease. Although Ms. Sherrill continued to be treated by Dr. Lewandowski throughout that summer, Ms. Pigg, still in Tennessee, was apparently unaware of the extent of the new symptoms until a mid-August visit to her mother's Missouri residence. At that point, she described Ms. Sherrill's leg movements as “drastic” and “just constant, like she was kicking straight up,” and her chewing motion as “like she had gum in her mouth.” Concerned about her mother's condition, Ms. Pigg accompanied her to an August 26 appointment with Dr. Lewandowski, at which time she explained to him that Ms. Sherrill's sister never had Parkinson's disease.

In the fall of 2002, Ms. Sherrill's original six-month prescription for Reglan was refilled. According to Ms. Pigg, Dr. Souder's office had authorized the renewal at the request of a pharmacy in Missouri. Dr. Souder's office, however, had no record of the renewal, and he contended that his office's protocol would not have permitted a renewal of a prescription over the telephone after six months' time without a personal examination. Regardless of how the prescription was refilled, it is undisputed that Ms. Sherrill continued to ingest the full sixty-milligram dose of Reglan throughout the fall of 2002. It is also undisputed that her neurological symptoms continued to worsen.

The record indicates that Dr. Lewandowski made no connection between Ms. Sherrill's use of Reglan and her movement disorder. In November, however, after prescribing several different medicines in an unsuccessful effort to combat Ms. Sherrill's Parkinson's-like symptoms, Dr. Lewandowski referred Ms. Sherrill to Dr. Clara Applegate, a neurologist at the Neurosciences Center of the Ozarks Medical Center in West Plains, Missouri. On December 18, 2002, Ms. Sherrill was examined first by a physician's assistant (“P.A.”), Brian Lenihan, and then by Dr. Applegate. According to Ms. Pigg, she “didn't even know [her mother] was going until it was done”; however, Dr. Applegate expressed her belief that Ms. Pigg was present during the initial visit and had also accompanied Ms. Sherrill to all of her subsequent appointments. On further questioning, Dr. Applegate stated that while “Ms. Sherrill came to the first visit and wrote her own notes ... [,] after that her daughter sort of jumped in and took over.” The medical records taken during this first visit make no reference to Ms. Pigg's presence, while the records from each of Ms. Sherrill's subsequent appointments document her attendance.

The impression of P.A. Lenihan and Dr. Applegate at the December 18 appointment was that Ms. Sherrill suffered from tardive dyskinesia, a movement disorder that is triggered by certain medications. Both the physician and the P.A. suspected that Reglan was the source of her disorder. The physician's notes of that visit included instructions for her office to “contact[ ] the nursing agency to stop the [m]etoclopramide,” and also indicate that “Dr. Applegate shared with the patient that stopping this medication is important.” At her deposition, Dr. Applegate was further questioned about the December 18 appointment, which led to the following exchange:

Q: Now let me ask you a little more about your conversation with Mrs. Sherrill and her daughter on December 18, 2002. Did you tell them that ... you thought she had tardive dyskinesia?

A: I think I probably did. I probably said, no, I didn't. I wouldn't have said that. I would have said-

Q: What would you have told them?

A: I would have told them that I thought she had a movement disorder that might have been triggered by the medication and that stopping the medication might take care of it.

Q: In having such a conversation would you emphasize to the patient, and in this case did you emphasize to the patient the importance of stopping the Reglan?

A: Yes.

Q: Did you go into any detail at that time or give them any explanation as to how Reglan or other drugs can cause this movement disorder?

A: I explained that any exposure to these medications can trigger such a disorder and that the side effects look like Parkinson's Disease in many cases and I felt that was what was wrong with her.

(Emphasis added).

Despite the instructions by Dr. Applegate to discontinue the use of Reglan, Ms. Sherrill continued to take the drug at the same dosage until her next visit with Dr. Applegate on January 16, 2003. It is undisputed that Ms. Pigg accompanied her mother to this appointment. The physician's notes of this visit provide that “despite over two phone calls and a faxed order” to the nursing agency, Ms. Sherrill had continued to take the Reglan. Dr. Applegate's medical records confirm that Ms. Sherrill still exhibited signs of movement disorder and that Ms. Pigg described her mother's symptoms at this time as “about the same ... still violent.” According to Dr. Applegate, Ms. Sherrill's...

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