Teeters v. Currey

• Citation: 518 S.W.2d 512,93 A.L.R.3d 207
• Parties: Norma L. TEETERS, Appellant, v. Dr. Doyle E. CURREY, Appellee.
• Decision Date: 09 December 1974
• Court: Tennessee Supreme Court

Page 512

518 S.W.2d 512

93 A.L.R.3d 207

Norma L. TEETERS, Appellant, v. Dr. Doyle E. CURREY, Appellee.

Supreme Court of Tennessee.

Dec. 9, 1974.

J. Troy Wolfe, Jr., Herbert A. Thornbury, Chattanooga, for appellant.

W. Ferber Tracy, Spears, Moore, Rebman & Williams, Chattanooga, for appellee.

OPINION

HENRY, Justice.

This malpractice action essentially involves a determination of whether the statute of limitation begins to run from the date of the injury or from the date of the discovery of the injury.

The admitted facts are that on June 5, 1970, plaintiff gave birth to a normal child. Defendant was the attending physician. Following delivery, because of edema, anemia and other medical complications, he recommended that plaintiff have a bilateral tubal ligation, the purpose of which was to avoid future pregnancies. Defendant performed this surgery on June 6, 1970, and her recovery was uneventful.

On December 6, 1972 she was hospitalized at Newell Clinic and was attended by Dr. Edgar Atkin. Dr. Atkin discovered that she was pregnant. He so advised her and referred her to other physicians for obstetrical care.

On March 9, 1973 plaintiff was delivered of a premature child and there were severe complications. Pursuant to medical advice, another bilateral tubal ligation was performed on March 11, 1973.

Plaintiff instituted suit on November 15, 1973, three years, five months and nine days after the operation, but approximately eleven months after discovering her pregnancy.

Plaintiff alleges that during the course of this latter surgery it was discovered that the earlier surgery performed by the defendant was negligently and inadequately done and was not performed in accordance with proper standards of care and good medical practice.

Specifically, she charges that defendant failed to properly or completely sever the left fallopian tube in a manner which would assure sterility and prevent future pregnancies. Further, she charges that he failed to identify the right fallopian tube in a manner which would assure sterility and prevent future pregnancies. Further, she charges that he failed to cut, sever or ligate this tube in any manner.

The defendant's answer pleads the statute of limitations and denies that he was guilty of any act of negligence. He admits advising the tubal ligation but insists that he explained that 'while it was intended that the operation would result in sterilization, this result was not guaranteed.'

He asserts that the reason for this explanation was that for unknown reasons 'on occaion even though a tubal ligation has been properly performed in accordance with accepted medical practice, over a period of time the body may bypass the effects of the operation and effectually refertilize the individual.'

He insists that the operation was properly performed.

He further charges that she assumed the risk of pregnancy by engaging in activities which a reasonably prudent person should have recognized as being conducive to causing pregnancy.

After answer was filed, by leave of the Court, plaintiff amended so as to charge fraudulent concealment and continuing negligence.

Defendant filed a motion for summary judgment and supported it by his own affidavit which read as follows:

That he is the defendant in this lawsuit; that he is a doctor of medicine duly licensed to practice in the State of Tennessee; that in his professional capacity he has treated and performed surgery upon Norma Teeters, the plaintiff in this case; that specifically, on or about June 6, 1970, he performed a bilateral ligation of the Fallopian tubes upon the plaintiff; that he performed said operation in a careful and proper manner, in accordance with good and accepted medical standards for such a procedure; that the plaintiff recovered from her surgery without incident; that he believed after the operation, and believes now, that the Fallopian tubes were properly cut and tied during said operation; that the last time he saw her for any medical service was on December 20, 1970, at which time he treated her for an unrelated condition; that he has not treated, examined, or otherwise rendered any professional services to Norma Teeters since December 20, 1970; that he does not know and has no way of knowing why Norma Teeters became pregnant in spite of this operation, but as a physician and surgeon he is aware of instance where the Fallopian tubes have grown back even after proper surgery for their ligation.

Plaintiff filed no counter-affidavit. The record, in this regard, consists solely of the complaint, answer, motion for summary judgment and the affidavit of the defendant.

Thus, the threshold question is the correctness of the action of the trial judge in sustaining the motion for summary judgment.

T.R.C.P. 56.03 provides in part:

The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits if any, show that there is No genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. (Emphasis ours)

The motion for a summary judgment shows that it was made on the basis of the 'attached brief and affidavit.' (As a matter of fact the record shows that the words 'and affidavit' were added in longhand, indicating that the brief was the only original basis.)

The brief appears in the technical record. It is devoted to the issues of fraudulent concealment and the running of the stature of limitations. In fact, the affidavit of the defendant is only alluded to in a portion of a single sentence, viz. '. . . Dr. Currey believed then and believes now that the surgery was properly performed in accordance with accepted medical standards.'

At no place in the brief, or in the motion is it suggested there was no genuine issue of fact.

The order of the Court simply recites:

The Court being of the opinion that said motion is well taken, the Court does hereby enter judgments in favor of the defendant.

It is readily apparent that the Court, in effect, simply sustained a plea of the statute of limitations and that this is the decisive issue before this Court.

Aside from this the affidavit falls short of establishing that there is no material issue of fact.

The Doctor concludes his affidavit as follows:

(T)hat he does not know and has no way of knowing why Norma Teeters became pregnant in spite of this operation, but as a physician and surgeon he is aware of instances where the fallopian tubes have grown back even after proper surgery for their ligation.

This portion of the affidavit--the most damaging portion--runs afoul of Rule 56.05 where it is said:

Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.

He was not present at the second operation and has no knowledge of what it revealed. Further his vague statement that he is aware of instances where the tubes have grown back even after proper surgery, standing alone and unaided, would not be admissible in evidence.

We cannot say from the record before us that there is no genuine, triable, substantial or real issue of fact. The record indicates that there is such an issue.

We proceed now to the real basis for the collapse of this suit in the trial court, i.e., the plea of the statute of limitations.

Section 28--304, T.C.A. applies to malpractice suits and provides that the action be 'commenced within one (1) year after cause of action accrued.'

When does the cause of action accrue?

In Bodne v. Austin, 156 Tenn. 366, 2 S.W.2d 104 (1927) the Court said:

. . . we have been referred to no authority holding that mere ignorance and failure to discover the existence of the cause of action, or the consequential damages resulting from the breach of duty or wrongful act, can prevent the running of the statute of limitations.

But this was in 1927 almost half a century ago.

In Albert v. Sherman, 167 Tenn. 133, 67 S.W.2d 140 (1934), the Court followed Bodne.

This was forty years ago.

In Clinard v. Pennington, 59 Tenn.App. 128, 438 S.W.2d 748 (1969) the Court of Appeals for the Middle Section, in a very able opinion by Judge Todd, held that a malpractice suit against a physician was barred by the statute of limitation where suit was commenced more than one year after a sponge was left in plaintiff's abdomen, notwithstanding the filing of suit within one year after discovery of the sponge.

The reluctance of Judge Todd and his colleagues to follow the precedents established by this Court may be gleaned from the following statements from the opinion:

In support of proposition (b) quoted above, plaintiff argues with great earnestness, supported by many authorities from other jurisdictions, that the right of action does not 'accrue', hence the statute of limitations does not begin to run, until the discovery of the injury or wrong. The members of this Court are sympathetic with the plight of those who discover their rights too late to assert them, but this Court is without power to devise or decree a means of relief in contradiction of the legislated policy of the State, § 28--304, T.C.A., and the pronouncements of our Supreme Court.

Again:

The Court of Appeals, as an intermediate appellate court, is bound by the Supreme Court's opinion which has not been overruled. World Secret Service Association, v. Travelers Indemnity Co., 55 Tenn.App. 122, 396 S.W.2d 848 (1965). Law as previously declared by the Supreme Court or enacted by the Legislature may be changed only by the Supreme Court or Legislature, and not by the Court of Appeals.

The time has come for use to re-examine the past holdings of our Appellate Courts in the light of contemporary standards of justice and of the holdings of the courts of last resort in other American jurisdictions.

Before doing so,...