Stanbury v. Bacardi

• Decision Date: 20 October 1997
• Citation: 953 S.W.2d 671
• Parties: Theresa STANBURY and spouse, John Stanbury, Plaintiffs-Appellants, v. Brian E. BACARDI, Defendant-Appellee.
• Court: Tennessee Supreme Court

Page 671

953 S.W.2d 671

Theresa STANBURY and spouse, John Stanbury, Plaintiffs-Appellants, v. Brian E. BACARDI, Defendant-Appellee.

Supreme Court of Tennessee at Nashville.

Oct. 20, 1997.

Helen Sfikas Rogers, Jones, Rogers & Fitzpatrick, Nashville, for Plaintiffs-Appellants.

Lela M. Hollabaugh, Manier, Herod, Hollabaugh & Smith, Nashville, for Defendant-Appellee.

OPINION

DROWOTA, Justice.

In this appeal we must determine whether the common law "continuing medical treatment doctrine" remains viable in Tennessee and operates to toll the statute of limitations in medical malpractice cases until the termination of treatment or the physician/patient relationship. Relying upon that doctrine, the plaintiffs, Theresa and John Stanbury, argue that the Court of Appeals erred by dismissing this medical malpractice action which was filed within one year of Theresa Stanbury's last office visit with the defendant Dr. Brian E. Bacardi, a podiatrist. The Court of Appeals found the doctrine inapplicable under the facts of this case, and, in addition observed that its applicability has been eroded or eliminated in this State by judicial and legislative adoption of the discovery rule. ¹ In a separate opinion, Judge Koch concluded that the doctrine has been completely subsumed into the discovery rule, and he urged that its abolition be expressly recognized.

We conclude that the common law doctrine of continuing medical treatment has been completely abrogated by adoption of the discovery rule in Tennessee. Accordingly, for the reasons explained hereafter, we affirm the decision of the Court of Appeals dismissing the plaintiffs' complaint.

BACKGROUND

In 1991, Theresa Stanbury worked on the assembly line at the Saturn Corporation in Spring Hill, Tennessee. She developed a corn on the fifth toe of her right foot which caused discomfort while she stood during her ten hour shift. A physician removed the corn and recommended that Stanbury consult a podiatrist. On November 22, 1991 Stanbury met with Dr. Brian Bacardi. After a cursory examination, Dr. Bacardi recommended a minor surgical procedure to prevent the fifth toe on Stanbury's right foot from lying on top of her fourth toe. Dr. Bacardi assured Stanbury that recovery time following the surgery would be short and her work schedule would not be interrupted.

Stanbury signed two consent forms prior to the December 11, 1991 surgery. One document on Dr. Bacardi's stationery entitled "Surgery Informer" contained a brief discussion of the general risks and complications of surgery, but did not identify the type of surgery Dr. Bacardi planned to perform. The second document was a Centennial Medical Center form entitled "Consent for Operation, Administration of Anesthesia and Other Procedures." In the space provided for describing the operation to be performed, someone hand wrote: "Bilateral Osteotomy, Bilateral Repair Tailor Bunion, Bilateral Arthroplasty, Bilateral Realignment Digit 4 and 5, Bilateral Removal 5th Toenail." Stanbury asserts that she was not informed about the nature of these procedures and that she did not know that she had consented to surgical procedures on both her feet. Stanbury said that she did not knowingly consent to anything other than the minor procedure Dr. Bacardi had described in his office on November 22.

On December 11, 1991, Dr. Bacardi performed extensive surgery on both of Stanbury's feet while she was under a general anesthetic. During the mid-afternoon, Stanbury was released from the hospital, and exited in a wheelchair with both feet heavily bandaged. Although she could remember very little about the afternoon following surgery, Stanbury said that over the following days she realized that surgery had been performed on both her feet, and she described her feet as "[t]wo big white blobs." When Dr. Bacardi removed the surgical dressing during her first office visit on December 20, 1991, nine days after surgery, Stanbury said she was in "complete and utter shock" and that she "couldn't believe all that had been done. There were so many stitches and so many things, it was just unbelievable." Stanbury also noticed that the fifth toe of her right foot was not touching the floor but rather was pointing straight up in the air. Stanbury said she did not specifically ask Dr. Bacardi why he had performed surgery on her left foot; however, she asked him generally what he had done to her feet. According to Stanbury, Dr. Bacardi was very vague and told her the surgery was necessary to correct hereditary problems.

Stanbury had four more office visits with Dr. Bacardi between January 10 and March 17, 1992. On April 3, 1992, Dr. Bacardi performed additional surgery to correct the misalignment of the fifth toe on Stanbury's right foot. During a post-operative visit on May 5, 1992, Dr. Bacardi told Stanbury that there was nothing more he could do for her and that it would take approximately one year for her feet to fully heal.

Theresa Stanbury ² filed a malpractice action against Dr. Bacardi and Hospital Corporation of America ³ on April 30, 1993. She alleged that Dr. Bacardi had been negligent in advising her to have surgery, in performing the surgery, and in providing her post-operative care. Stanbury also alleged that Dr. Bacardi had performed unnecessary surgery, that he had failed to obtain her consent to the surgery performed on December 11, 1991, that he had ignored her complaints of pain and infection, and that he had falsified office notes to conceal her actual condition. Dr. Bacardi responded, denying all wrongdoing and asserting that the claims were barred by the statute of limitations.

At the close of the plaintiffs' proof in the jury trial, the trial court directed a verdict in favor of Dr. Bacardi on the theories of negligent post-operative care, ignoring Stanbury's complaints of pain and infection, and intentionally falsifying office notes to conceal her true condition. The defendant moved for a directed verdict on the basis that all claims were barred by the one year statute of limitations of the Tennessee Medical Malpractice Act, ⁴ but the trial court denied that motion finding that Dr. Bacardi had provided continuing care to Stanbury through the final office visit on May 5, 1992, which was within one year of the date she filed suit. The trial court submitted to the jury the plaintiff's claims concerning lack of informed consent, advising and performing unnecessary surgery, and negligently performing the surgeries. In response to a question which arose during jury deliberations, however, the trial court withdrew the claim for negligently performing the surgeries. The jury returned a general verdict in favor of the plaintiffs awarding Theresa Stanbury $211,000 and John Stanbury $10,000.

The defendant appealed, and the Court of Appeals reversed the judgment in favor of the plaintiffs and dismissed the complaint, finding that the claims were barred by the one year statute of limitations. The intermediate court found the continuing medical treatment doctrine inapplicable under the facts of this case, and, in addition, observed that its applicability has been eroded or eliminated in this State by judicial and legislative adoption of the discovery rule. Judge Koch, in a separate opinion, agreed with the majority that the informed consent claims were barred by the statute of limitations. Finding that the continuing medical treatment doctrine has been completely subsumed into the discovery rule, Judge Koch urged that its abolition be expressly recognized. However, he dissented from dismissal of the entire case. Since Stanbury's unnecessary surgery claim was filed within one year of the time she was informed by another health care professional that the initial surgery was unnecessary, Judge Koch opined that it had been timely filed within one year of its discovery.

Thereafter, we granted the plaintiffs permission to appeal to determine whether the common law "continuing medical treatment doctrine" remains viable in Tennessee. For the reasons that follow, we conclude that the common law doctrine has been subsumed by the discovery rule and therefore affirm the judgment of the Court of Appeals dismissing the complaint.

CONTINUING MEDICAL TREATMENT DOCTRINE

Until December 1974, ⁵ negligence actions against health care providers, like all other actions for injuries to the person in Tennessee, were required to be filed within one year after the date of the wrongful act that caused the plaintiff's injury. Albert v. Sherman, 167 Tenn. 133, 135, 67 S.W.2d 140, 141 (1934); Bodne v. Austin, 156 Tenn. 353, 364-65, 2 S.W.2d 100, 103 (1928); Tenn.Code Ann. § 28-304. The two most common exceptions to this rule involved continuing torts and fraudulent concealment of the injury. ⁶

In 1938, the intermediate appellate court adopted the continuing tort principle in a case involving an employee who had become disabled by breathing chemical particles in his employer's plant over an extended period of time. Noting that the employer had a duty to protect its employees from breathing these particles, the court held that the employer had committed "one continuous tort, beginning with the employment and ending only at the time of total disability of the employee and the termination of his employment." Tennessee Eastman Corp. v. Newman, 22 Tenn.App. 270, 279, 121 S.W.2d 130, 135 (1938). Accordingly, the employee's action filed within one year of the onset of his disability and the termination of his employment was held to be timely filed. Id.; see also Steiner v. Spencer, 24 Tenn.App. 389, 145 S.W.2d 547 (1940).

Several years later, the intermediate appellate court extended the continuing tort principle to medical malpractice actions. In Frazor v. Osborne, 57 Tenn.App. 10, 414 S.W.2d 118 (1966), the plaintiff brought a medical malpractice action against her physician and the hospital in which she had undergone surgery over ten years earlier. During the operation,...