Young ex rel. Estate of Young v. Lisa Kennedy, M.D. & Methodist Health Sys., Inc.

• Decision Date: 11 February 2014
• Docket Number: No. W2012–00836–COA–R3–CV.,W2012–00836–COA–R3–CV.
• Citation: 429 S.W.3d 536
• Parties: Julia YOUNG, on behalf of the estate of Cecil C. YOUNG v. Lisa KENNEDY, M.D. and Methodist Health Systems, Inc.
• Court: Tennessee Court of Appeals

429 S.W.3d 536

Julia YOUNG, on behalf of the estate of Cecil C. YOUNG

v.Lisa KENNEDY, M.D. and Methodist Health Systems, Inc.

No. W2012–00836–COA–R3–CV.

Court of Appeals of Tennessee.

July 16, 2013 Session.

Aug. 13, 2013.

Petition to Rehear Denied Sept. 10, 2013.

Application for Permission to Appeal Denied Feb. 11, 2014.

Amanda K. Strange, Memphis, Tennessee, for the appellant, Julia Young, on behalf of the estate of Cecil C. Young.

Andrea N. Malkin and Tiffany Taylor Bowders, Memphis, Tennessee, for the appellees, Lisa Kennedy, M.D. and Methodist Health Systems, Inc.

OPINION

J. STEVEN STAFFORD, J., delivered the opinion of the Court, in which ALAN E. HIGHERS, P.J., W.S., and HOLLY M. KIRBY, J., joined.

J. STEVEN STAFFORD, J.

This case involves the application of the medical malpractice statute of limitations. The trial court granted summary judgment to the defendant doctor, finding that the statute of limitations defense was not waived by her failure to raise it in her first pre-answer motion, that the defense was sufficiently pleaded, and that the undisputed facts in the record supported a finding that the statute of limitations had expired at the time of filing the initial complaint. Affirmed and remanded.

I. Background

Cecil C. Young was admitted to Methodist North Hospital on March 27, 2001. At the time, he was in remission from lymphoma but was experiencing radiation pneumonitis and a pulmonary infection that were not responding to oral antibiotics. Upon admission, Mr. Young was seen by Defendant/Appellant Dr. Lisa Kennedy, a pulmonary specialist. Dr. Kennedy prescribed oral steroids, which initially caused Mr. Young's condition to improve. Dr. Kennedy later performed a fibrotic bronchoscopy on Mr. Young on April 3, 2001. According to the Complaint in this case, Mr. Young was discharged from the hospital on the same day, despite tests that allegedly revealed the presence of pseudomonas aeruginosa.¹ According to the Complaint, Dr. Kennedy failed to prescribe any medication specifically to treat that infection.

On April 18, 2001, Mr. Young appeared at his primary care physician's office, complaining of a worsening in his condition. Office tests showed that Mr. Young's blood pressure was low. Mr. Young's doctor ultimately sent him to the emergency room at Methodist North Hospital. Upon arrival on April 18, 2001, Mr. Young was admitted into the Intensive Care Unit and was prescribed an array of medications. After a period of treatment in the Intensive Care Unit, Mr. Young was transferred to the Transitional Care Unit, which is a rehabilitation wing of the hospital. On May 9, 2001, however, Mr. Young's condition began to deteriorate and he was transferred back to the Intensive Care Unit. According to the Complaint, staff at Methodist Hospital attempted to contact Dr. Kennedy on May 9, 2001, but Dr. Kennedy failed to respond for several hours, despite multiple telephone calls. While in the Intensive Care Unit, Mr. Young was seen by Dr. Kerry Cleveland, an infectious disease doctor. Although Dr. Cleveland placed Mr. Young on a ventilator and Mr. Young later underwent a tracheotomy, his condition continued to worsen. Mr. Young was then heavily medicated and sedated.

Mr. Young's wife, Plaintiff/Appellant Julia Beth Young, later described Mr. Young's condition on May 9, 2001, stating: “The day Mr. Young was to be discharged he developed a high fever. It was a remarkable appearance that I've never seen. His face was red like it was scalded. He was vomiting, and it was dramatic, very dramatic.” Ms. Young also testified that although she was unsure at the time of Mr. Young's exact diagnosis, she was aware that he had acquired an infection. With regard to this infection, Ms. Young testified: “It was just an obvious thing from watching what happened. I mean, and the isolation that happened afterwards, I knew it was a hospital acquired infection.” Ms. Young clarified that she suspected that Mr. Young had acquired a hospital infection “at the time.” Ms. Young also testified that any treatment was seriously delayed by Dr. Kennedy's failure to respond to their calls.

Ms. Young testified that she questioned Dr. Kennedy twice during Mr. Young's hospitalization regarding his treatment. First, Ms. Young expressed concern that the antibiotic prescribed to Mr. Young was causing an adverse reaction. According to Ms. Young, Dr. Kennedy refused to change the antibiotic. Ms. Young further testified about another incident in which she confronted Dr. Kennedy regarding Mr. Young's course of treatment. This second confrontation occurred while Mr. Young was still lucid (prior to Mr. Young slipping into a coma on June 6, 2001). During the argument, as Ms. Young described the confrontation, Ms. Young expressed her displeasure with Dr. Kennedy's suggested course of treatment and requested that Mr. Young be transferred to another hospital to allow him to be treated by another doctor, as Ms. Young was “unhappy with Dr. Kennedy.” Specifically, Ms. Young took issue with Dr. Kennedy's belief that Mr. Young was dying of lymphoma, and her suggestion to just make Mr. Young comfortable. Indeed, Ms. Young testified that Mr. Young shared her concerns about Dr. Kennedy, indicating that he was displeased with the level of care he was receiving and asking to be moved to a different hospital. Ms. Young testified:

He was afraid to stay at night, and he expressed that. I felt like the entire staff and Dr. Kennedy included in that had the opinion that he was dying from lymphoma and that there was not much reason to do more than just make him comfortable. That was my feeling at the time.

Instead, Ms. Young believed that a more aggressive course of treatment was warranted. Ms. Young also testified that she informed the hospital staff that she believed that Mr. Young was being prescribed too much medication, which was causing his blood pressure to decrease. Dr. Kennedy's patient notes also evidence this confrontation, which she notes took place on June 6, 2001. Dr. Kennedy's notes state:

Family not happy [with] my care. They feel that I am keeping him too sedated, not allowing him to participate in physical therapy. They also question my management of his fluids and pressors. Furthermore, they do not accept my assessment of his prognosis. They would like another pulmonologist to assume his care.

Despite this argument, Mr. Young stayed in the Intensive Care Unit of Methodist North Hospital. Mr. Young slipped into a coma on June 6, 2001 and passed away on June 12, 2001.

On July 22, 2001, Ms. Young filed a Quality Incident Report Form and Appeal request with the Joint Commission on Accreditation of Healthcare Organization (“JCAHO”). In the complaint, Ms. Young alleged that Dr. Kennedy's negligence “sent [Mr. Young] spiraling into a decline.” Specifically, Ms. Young alleged that Dr. Kennedy and the hospital staff were negligent in failing to prevent Mr. Young from acquiring a hospital infection on May 9, 2001, and that Dr. Kennedy failed to treat the infection properly. The complaint further alleged that due to Dr. Kennedy's failure to return to the hospital despite repeated calls, “[t]here was a delay in discovery of the [hospital acquired] infection with valuable time lost as a result. Dr. Kennedy did not inform us [Mr. Young's] transfer back to the [the Intensive Care Unit] was due to an in-house acquired staph infection.” In addition, Ms. Young alleged that Dr. Kennedy and the hospital staff were negligent in over-medicating Mr. Young, causing him to slip into a coma, stating:

Specific negligent behavior by RN [ ] Harvey on June 6, 2001, through medication abuse or mismanagement, resulting in a crisis event, precipitating a coma from which [Mr. Young] never recovered. I repeatedly requested Dilaudid be reduced or another drug substituted.... Dr. Kennedy continued to order Dilauidid.

Ms. Young also filed a complaint with the Tennessee Department of Health, Division of Health Related Boards. She was interviewed in connection with her complaint on September 5, 2001. In the interview, Ms. Young reiterated her view that Dr. Kennedy was negligent in allowing Mr. Young to acquire an infection. The interviewer drafted a report of Ms. Young's interview. According to the interviewer:

[Ms. Young] stated that around May 9th [or] 10th she called Dr. Kennedy after a sudden onset of change in her husband['s] condition.... She stated that Dr. Kennedy was summoned by the nurse to come and she refused to come. She stated that it was sometime that night before they were able to diagnose that her husband had contracted a nasocomial staphylococcal infection.... She stated that she didn't find that out until much later on because by midnight they had put her husband back in [the Intensive Care Unit].

* * *

She stated something drastic happened.... She stated she was so in the dark that she really didn't know what happened and she couldn't get anyone to tell her what happened. Except she stated she felt there was a good deal of negligence and problems going on there that needed to be addressed.

I asked her what caused her to feel that something happened. She stated that the day whatever happened happened [N]urse [ ] Harvey told her that she had given her husband some Dilaudid, Tylenol, and Diprivan. She stated she expressed some concern about that because it had taken her husband's blood pressure down. She stated that Nurse Harvey stated that they had to keep her husband sedated because he was on the ventilator.... She stated that she repeatedly tried to get the doctor to lower the amount of Dilaudid administered to her husband but they wouldn't listen. She stated when she came in that day that whatever happened happened there were several nurses in the room ... She stated he never woke up after that.... they (her family) kn[e]w that something happened and they tried to find out what.²

On June 11, 2002, Ms. Young, individually and as next of kin for Mr. Young, along...