               IN THE COURT OF APPEALS OF TENNESSEE
                          AT KNOXVILLE
                              December 10, 2015 Session

                   JUSTIN R. ROGERS V. BLOUNT MEMORIAL
                           HOSPITAL, INC., ET AL.

                    Appeal from the Circuit Court for Blount County
                      No. L-18539    David R. Duggan, Judge



            No. E2015-00136-COA-R3-CV-FILED-FEBRUARY 29, 2016


This appeal involves a health care liability action filed by the plaintiff against Blount
Memorial Hospital, Inc. (“BMHI”) and the doctor who treated the plaintiff at BMHI from
September 8, 2012, to September 13, 2012. The plaintiff filed his complaint on
December 13, 2013, alleging that the defendant doctor had misdiagnosed his illness,
causing a delay in treatment and resultant permanent injuries. Both defendants filed
motions to dismiss, which were converted into motions for summary judgment with the
filing of additional affidavits. The trial court granted summary judgment in favor of
BMHI based on, inter alia, the applicable statute of limitations and BMHI‟s immunity as
a governmental entity. The court subsequently granted summary judgment to the
defendant doctor based on the statute of limitations. The plaintiff timely appealed.
Determining that a genuine issue of material fact exists regarding when the plaintiff was
aware of facts sufficient to place him on notice that his injury was allegedly the result of
the defendant doctor‟s wrongful conduct, we conclude that summary judgment was
improperly granted to the defendant doctor. We affirm the trial court‟s grant of summary
judgment in favor of BMHI.

        Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
                Affirmed in Part, Reversed in Part; Case Remanded

THOMAS R. FRIERSON, II, J., delivered the opinion of the court, in which JOHN W.
MCCLARTY, J., joined. D. MICHAEL SWINEY, C.J., filed a separate concurring opinion.

Sidney W. Gilreath, Cary L. Bauer, and Matthew B. Long, Knoxville, Tennessee, for the
appellant, Justin R. Rogers.

Carl P. McDonald and Diane M. Hicks, Maryville, Tennessee, for the appellee, Blount
Memorial Hospital, Inc.
David E. Waite, Knoxville, Tennessee, for the appellee, Mohammed A. Bhatti, M.D.


                                        OPINION

                          I. Factual and Procedural Background

       The plaintiff, Justin R. Rogers, filed the instant health care liability action on
December 13, 2013, against BMHI and Dr. Mohammed Bhatti. In his complaint, Mr.
Rogers alleged that he presented to the BMHI emergency room on September 8, 2012,
with fever and progressive numbness that began in his extremities and spread throughout
his body. Mr. Rogers further stated that Dr. Bhatti diagnosed him with Guillain-Barré
Syndrome (“GBS”) and began administering plasmapheresis treatments. According to
Mr. Rogers, it was later discovered that the actual cause of his symptoms was a spinal
abscess and that he never had GBS. Mr. Rogers asserts that the delay in diagnosis of his
spinal abscess resulted in permanent and irreparable spinal cord damage. Mr. Rogers
contends that he did not become aware of facts leading him to discover the misdiagnosis
until mid-October 2012.

       Mr. Rogers subsequently sent pre-suit notice to BMHI on August 20, 2013, and to
Dr. Bhatti on October 7, 2013. Following the filing of the complaint on December 13,
2013, both defendants filed motions to dismiss. Due to the subsequent filing of affidavits
by Mr. Rogers and BMHI, the trial court treated these motions as motions for summary
judgment. The court granted summary judgment to BMHI on March 24, 2014, for the
following reasons: (1) expiration of the statute of limitations, (2) failure to allege in the
complaint that BMHI was a governmental entity and that Dr. Bhatti was an employee
working within the scope of his employment, and (3) unrefuted evidence that Dr. Bhatti
was not an employee of BMHI.

       The trial court continued the hearing on the summary judgment motion with
respect to Dr. Bhatti to allow Mr. Rogers additional time to conduct discovery. The trial
court ultimately granted summary judgment in favor of Dr. Bhatti on January 9, 2015,
based upon expiration of the statute of limitations. The court found that as of September
13, 2012, or at the latest by October 5, 2012, based on the proof presented, Mr. Rogers
was aware of facts sufficient to place a reasonable person on inquiry notice that he had
suffered an injury as a result of Dr. Bhatti‟s alleged misdiagnosis. The court therefore
concluded that the statute of limitations expired on October 5, 2013, and that the
complaint filed on December 13, 2013, was time-barred. Mr. Rogers has appealed.



                                             2
                                    II. Issues Presented

       Mr. Rogers has presented the following issues for our review, which we have
restated slightly:

       1.     Whether the trial court erred by granting summary judgment to Dr.
              Bhatti when a genuine issue of material fact exists regarding
              whether Mr. Rogers should have known prior to October 7, 2012,
              that he had a cause of action against Dr. Bhatti.

       2.     Whether the trial court erred by granting summary judgment when
              Mr. Rogers was of unsound mind until October 7, 2012.

       3.     Whether the trial court erred by failing to extend the statute of
              limitations by 120 days for Mr. Rogers‟s claim against BMHI.

       4.     Whether the trial court erred by granting summary judgment in favor
              of BMHI without allowing Mr. Rogers additional time for discovery.

       5.     Whether the trial court erred by granting summary judgment in favor
              of BMHI upon the court‟s finding that Mr. Rogers‟s complaint did
              not aver that BMHI was a governmental entity.

                                 III. Standard of Review

      For actions initiated on or after July 1, 2011, such as the one at bar, the standard of
review for summary judgment delineated in Tennessee Code Annotated § 20-16-101
(Supp. 2015) applies. See Rye v. Women’s Care Center of Memphis, MPLLC, 477
S.W.3d 235, ___, 2015 WL 6457768 at *11 (Tenn. Oct. 26, 2015). The statute provides:

              In motions for summary judgment in any civil action in Tennessee,
       the moving party who does not bear the burden of proof at trial shall prevail
       on its motion for summary judgment if it:

              (1) Submits affirmative evidence that negates an essential element of
                  the nonmoving party‟s claim; or

              (2) Demonstrates to the court that the nonmoving party‟s evidence is
                  insufficient to establish an essential element of the nonmoving
                  party‟s claim.


                                             3
Tenn. Code Ann. § 20-16-101. The grant or denial of a motion for summary judgment is
a matter of law; therefore, our standard of review is de novo with no presumption of
correctness. See Rye, 477 S.W.3d at ___, 2015 WL 6457768 at *12; Dick Broad. Co.,
Inc. of Tenn. v. Oak Ridge FM, Inc., 395 S.W.3d 653, 671 (Tenn. 2013) (citing Kinsler v.
Berkline, LLC, 320 S.W.3d 796, 799 (Tenn. 2010)). “Summary judgment is appropriate
when „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.‟” Rye, 477
S.W.3d at ___, 2015 WL 6457768 at *12 (quoting Tenn. R. Civ. P. 56.04). Pursuant to
Tennessee Rule of Civil Procedure 56.04, the trial court must “state the legal grounds
upon which the court denies or grants the motion” for summary judgment, and our
Supreme Court has instructed that the trial court must state these grounds “before it
invites or requests the prevailing party to draft a proposed order.” See Smith v. UHS of
Lakeside, Inc., 439 S.W.3d 303, 316 (Tenn. 2014).

       Concerning the requirements for a movant to prevail on a motion for summary
judgment pursuant to Tennessee Rule of Civil Procedure 56, our Supreme Court has
explained in pertinent part:

       We reiterate that a moving party seeking summary judgment by attacking
       the nonmoving party‟s evidence must do more than make a conclusory
       assertion that summary judgment is appropriate on this basis. Rather,
       Tennessee Rule 56.03 requires the moving party to support its motion with
       “a separate concise statement of material facts as to which the moving party
       contends there is no genuine issue for trial.” Tenn. R. Civ. P. 56.03. “Each
       fact is to be set forth in a separate, numbered paragraph and supported by a
       specific citation to the record.” Id. When such a motion is made, any party
       opposing summary judgment must file a response to each fact set forth by
       the movant in the manner provided in Tennessee Rule 56.03. “[W]hen a
       motion for summary judgment is made [and] . . . supported as provided in
       [Tennessee Rule 56],” to survive summary judgment, the nonmoving party
       “may not rest upon the mere allegations or denials of [its] pleading,” but
       must respond, and by affidavits or one of the other means provided in
       Tennessee Rule 56, “set forth specific facts” at the summary judgment
       stage “showing that there is a genuine issue for trial.” Tenn. R. Civ. P.
       56.06. The nonmoving party “must do more than simply show that there is
       some metaphysical doubt as to the material facts.” Matsushita Elec. Indus.
       Co., 475 U.S. at 586, 106 S.Ct. 1348. The nonmoving party must
       demonstrate the existence of specific facts in the record which could lead a
       rational trier of fact to find in favor of the nonmoving party. If a summary
       judgment motion is filed before adequate time for discovery has been
                                             4
       provided, the nonmoving party may seek a continuance to engage in
       additional discovery as provided in Tennessee Rule 56.07. However, after
       adequate time for discovery has been provided, summary judgment should
       be granted if the nonmoving party‟s evidence at the summary judgment
       stage is insufficient to establish the existence of a genuine issue of material
       fact for trial. Tenn. R. Civ. P. 56.04, 56.06. The focus is on the evidence
       the nonmoving party comes forward with at the summary judgment stage,
       not on hypothetical evidence that theoretically could be adduced, despite
       the passage of discovery deadlines, at a future trial.

Rye, 477 S.W.3d at ___, 2015 WL 6457768 at *22 (emphasis in original).

                      IV. Summary Judgment in Favor of Dr. Bhatti

        Mr. Rogers asserts that the trial court erred in granting summary judgment to Dr.
Bhatti based on the statute of limitations. The statute of limitations applicable to a health
care liability action is codified at Tennessee Code Annotated § 29-26-116 (2012), which
provides in pertinent part:

       (a)(1) The statute of limitations in health care liability actions shall be one
       (1) year as set forth in § 28-3-104.

       (2) In the event the alleged injury is not discovered within such one-year
       period, the period of limitation shall be one (1) year from the date of such
       discovery.

The health care liability statute also provides that a plaintiff “shall give written notice of
the potential claim to each health care provider that will be a named defendant at least
sixty (60) days before the filing of a complaint.” Tenn. Code Ann. § 29-26-121(a)(1)
(Supp. 2015). The statute further states: “When notice is given to a provider as provided
in this section, the applicable statutes of limitations and repose shall be extended for a
period of one hundred twenty (120) days from the date of expiration of the statute of
limitations and statute of repose applicable to that provider.” Tenn. Code Ann. § 29-26-
121(c).

        In the case at bar, Mr. Rogers sent pre-suit notice to Dr. Bhatti on October 7, 2013,
and filed the complaint on December 13, 2013. With regard to the issue of timeliness,
the trial court determined:

       [A]s a matter of law that on September 13, 2012, and certainly by October
       5, 2012, Plaintiff was aware of facts sufficient to place a reasonable person
                                              5
       on inquiry notice that he had suffered an injury as the result of Defendant‟s
       alleged failure to promptly diagnose a spinal abscess. The Court therefore
       concludes, as a matter of law, that the one year statute of limitations
       applicable to Plaintiff‟s claim ran on October 5, 2013, at the latest.

The trial court therefore granted Dr. Bhatti‟s motion for summary judgment based on Mr.
Rogers‟s failure to file the complaint within the applicable statute of limitations.

       Mr. Rogers insists that he had no reason to suspect that the initial diagnosis of
GBS was incorrect until he was informed by another medical practitioner in mid-October
2012 that he never had GBS. Mr. Rogers explains that he thought his symptoms and the
spinal abscess were merely a consequence of GBS and that such symptoms would resolve
as the illness ran its course. Dr. Bhatti points out that (1) Mr. Rogers signed a consent
form for evacuation of a spinal abscess on September 13, 2012; (2) Mr. Rogers allegedly
told a nurse at Patricia Neal Rehabilitation Center on October 5, 2012, that he had been
diagnosed with GBS and “then found out he had an abscess”; and (3) Mr. Rogers
admitted in his deposition that his symptoms began to improve after he underwent the
surgical procedure on his spine.

       With regard to the discovery of a health care liability cause of action, our Supreme
Court has explained:

       [A] medical malpractice cause of action accrues when one discovers, or in
       the exercise of reasonable diligence should have discovered, both (1) that
       he or she has been injured by wrongful or tortious conduct and (2) the
       identity of the person or persons whose wrongful conduct caused the injury.
       A claimant need not actually know of the commission of a wrongful action
       in order for the limitations period to begin, but need only be aware of facts
       sufficient to place a reasonable person on notice that the injury was the
       result of the wrongful conduct of another. If enough information exists for
       discovery of the wrongful act through reasonable care and diligence, then
       the cause of action accrues and the tolling of the limitations period ceases.
       Neither actual knowledge of a breach of the relevant legal standard nor
       diagnosis of the injury by another medical professional is a prerequisite to
       the accrual of a medical malpractice cause of action.

Sherrill v. Souder, 325 S.W.3d 584, 595 (Tenn. 2010).1



1
 In 2012, the Tennessee Legislature amended several statutes by substituting the phrase “medical
malpractice” with “health care liability.”
                                               6
       For example, in the case of Foster v. Harris, 633 S.W.2d 304, 305 (Tenn. 1982),
our Supreme Court analyzed a situation wherein the plaintiff was infected with hepatitis
while undergoing a dental procedure, during which the dentist cut his finger,
intermingling his blood with the plaintiff‟s blood. Approximately two months later, in
January 1976, the plaintiff was informed that he was suffering from “serum hepatitis, a
disease that can be contacted and passed from one person to another only through blood
contact.” Id. The plaintiff and his physicians “conducted a diligent search in an effort to
determine plaintiff‟s contact with serum hepatitis, to no avail, until he returned to
defendant dentist on July 21, 1976, at which time defendant informed plaintiff that on
October 11, 1975, defendant was infected with serum hepatitis.” Id. The plaintiff
thereafter filed his complaint on February 11, 1977, alleging that his cause of action arose
on or about July 21, 1976, the date when he was informed of the origin of his illness. Id.

        The defendant dentist filed a motion to dismiss, alleging that the statute of
limitations had run in January 1977, one year following the date upon which the plaintiff
was informed that he had hepatitis. Id. With regard to the statute of limitations, the
Foster Court stated:

       In this case, neither the injury nor the tort feasor who perpetrated the injury
       were discovered until July 21, 1976. All that plaintiff discovered in
       January was the name of the disease. That discovery did not reveal that he
       contracted it through a negligent act or who the tort feasor might be. . . . a
       cause of action in tort does not exist until a judicial remedy is available to
       the plaintiff; that before a judicial remedy exists, two elements must
       coalesce, (1) a breach of some legally recognized duty owed by the
       defendant to the plaintiff; (2) that causes the plaintiff some legally
       cognizable damage. It is axiomatic that no judicial remedy was available to
       this plaintiff until he discovered, or reasonably should have discovered, (1)
       the occasion, the manner and means by which a breach of duty occurred
       that produced his injury; and (2) the identity of the defendant who breached
       the duty.

Id. at 305 (internal citations omitted).

        Similarly, in the subsequent case of Shadrick v. Coker, 963 S.W.2d 726, 733
(Tenn. 1998), the plaintiff was injured when his physician performed spinal surgery and
utilized pedicle screws that were “experimental” and not approved for use in the spine.
The plaintiff did not discover the nature of his injury, however, until almost four years
later when he was watching a television news program addressing problems with the use
of such screws in the spine. Id. With regard to the statute of limitations, our Supreme
Court explained:
                                             7
        The plaintiff may not, however, delay filing suit until all the
injurious effects and consequences of the alleged wrong are actually known
to the plaintiff. Wyatt v. A-Best Company 910 S.W.2d 851, 855 (Tenn.
1995). Similarly, the statute of limitations is not tolled until the plaintiff
actually knows the “specific type of legal claim he or she has,” Stanbury [v.
Bacardi, 953 S.W.2d 671,] 672 [(Tenn. 1997)], or that “the injury
constitute[d] a breach of the appropriate legal standard,” Roe v. Jefferson,
875 S.W.2d 653, 657 (Tenn. 1994). Rather, as we have recently
emphasized, the statute of limitations begins to run when the plaintiff
knows or in the exercise of reasonable care and diligence should know that
an injury has been sustained as a result of wrongful or tortious conduct by
the defendant. Stanbury, at 677; see also Roe, 875 S.W.2d at 657 (“[T]he
plaintiff is deemed to have discovered the right of action if he is aware of
facts sufficient to put a reasonable person on notice that he has suffered an
injury as a result of wrongful conduct.”). “It is knowledge of facts
sufficient to put a plaintiff on notice that an injury has been sustained which
is crucial.” Stanbury, at 678. Such knowledge includes not only an
awareness of the injury, but also the tortious origin or wrongful nature of
that injury. Hathaway v. Middle Tennessee Anesthesiology, P.C., 724
S.W.2d 355, 359 (Tenn. App. 1986).

       Applying these principles to the record before us, we cannot agree
with Dr. Coker‟s insistence that the statute of limitations began to run as a
matter of law in November 1990 (at the latest) when Shadrick had the
surgery to remove the screws from his back. It is true, as pointed out by
Dr. Coker, that Shadrick was told upon waking up from the surgery on
March 12, 1990 that the screws were implanted in his back. This was
something Shadrick knew he had not authorized before the surgery. Also,
Shadrick knew he had received the surgical implants without being
informed of any of the potential risks or complications associated with their
use. Finally, he knew that one of the screws had broken—one of the
unmentioned risks of the procedure—and had to have surgery in September
1990 to repair the broken screw.

      However, we are not persuaded that these facts necessarily compel a
reasonable person to conclude that Shadrick knew or reasonably should
have known that his problems were the result of wrongful or tortious
conduct on the part of Dr. Coker. Although Shadrick was told by Dr.
Coker that the screws had been put in his back when he woke up from the
March 12, 1990 surgery, he was also told at that time that the screws were
                                      8
       “routine treatment” for the type of surgery he had undergone. The fact that
       Shadrick was informed that the screws had been put in his back after the
       surgery “did not mean anything to [him] because nobody ever told [him]
       about any risk of injury or any problems that could be caused by the
       screws. At the time, [he] had no idea that the screws were experimental,
       that they had not been approved by the Food and Drug Administration for
       use in the spine, or that they would cause [him] any problems.” Indeed, it
       was not until December 17, 1993 while watching television that Shadrick
       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 Shadrick had been “led to believe that
       [he] had undergone a routine procedure . . . .” As a reasonable lay person,
       Shadrick could have believed Dr. Coker when he informed him that the
       screws were routine for use in back-fusion surgeries, especially since Dr.
       Coker had never disclosed any risks or potential complications related to
       the use of the screws or even their experimental nature.

Id. at 733-34.

        Based upon this precedent, we determine that a genuine issue of material fact
exists regarding when Mr. Rogers was “aware of facts sufficient to place a reasonable
person on notice that the injury was the result of the wrongful conduct of another.” See
Sherrill, 325 S.W.3d at 595. As a reasonable lay person, Mr. Rogers could have believed
that his worsening symptoms and the presence of a spinal abscess were simply part of the
natural progression of GBS. Mr. Rogers contends that he did not and could not have
known that the GBS diagnosis was incorrect until he was informed of this fact by a
medical professional in mid-October 2012. Although we recognize that there is no
requirement of diagnosis of the actual injury by another medical professional, see
Sherrill, 325 S.W.3d at 595, we determine that in this situation it was reasonable for Mr.
Rogers, a layperson, to conclude that his symptoms and the treatments given were related
to the GBS diagnosis until such time as he was informed otherwise.

       We also determine that Mr. Rogers‟s signature on a consent form for evacuation of
a spinal abscess is of no consequence because he claims to have reasonably believed that
such abscess was a result of GBS and was not, in fact, the sole cause of his symptoms.
Similarly, the fact that Mr. Rogers‟s symptoms began to improve after the spinal abscess
evacuation is also unavailing, based upon Mr. Rogers‟s asserted reasonable belief that the
abscess was caused by or related to GBS.



                                            9
        Patricia Neal Rehabilitation Center nurse, Mr. Richmond, testified that Mr. Rogers
told him on October 5, 2013, that he was being treated at BMHI for GBS and “then found
out he had an abscess and [was] transferred here for symptoms.” Viewing this testimony
in the light most favorable to Mr. Rogers, as we must, we conclude that it also does not
negate Mr. Rogers‟s claim that he believed the spinal abscess to be a part of the
progression of GBS. At best, the totality of the evidence establishes the existence of a
genuine issue of material fact with regard to when Mr. Rogers was aware of facts
sufficient to place him on notice that his injury was the result of the alleged wrongful
conduct of Dr. Bhatti by virtue of Dr. Bhatti‟s misdiagnosis of GBS, which resulted in
delay of proper treatment. See Sherrill, 325 S.W.3d at 595. Therefore, we conclude that
summary judgment was improperly granted in favor of Dr. Bhatti based upon the statute
of limitations. The question of when Mr. Rogers was aware of facts sufficient to place
him on notice that his injury was the result of the wrongful conduct of Dr. Bhatti should
have been resolved by the trier of fact.

                            V. Allegations of Unsound Mind

        Mr. Rogers also contends that the statute of limitations should have been tolled
because he was of unsound mind due to the severity of his illness. Mr. Rogers asserts
that he was suffering from blackouts, hallucinations, and memory loss during his
hospitalization. As Dr. Bhatti points out, however, Mr. Rogers did not raise this issue at
the trial court level, and therefore it cannot be raised for the first time on appeal. See
Simpson v. Frontier Cmty. Credit Union, 810 S.W.2d 147, 153 (Tenn. 1991); Fortune v.
Unum Life Ins. Co. of Am., 360 S.W.3d 390, 403-04 (Tenn. Ct. App. 2010).

                       VI. Summary Judgment in Favor of BMHI

        Mr. Rogers argues that the trial court improperly granted summary judgment to
BMHI for three reasons: (1) the trial court incorrectly failed to allow Mr. Rogers to avail
himself of the 120-day extension granted by Tennessee Code Annotated § 29-26-121,
following timely pre-suit notice; (2) the trial court failed to allow Mr. Rogers additional
time to conduct discovery pursuant to Tennessee Rule of Civil Procedure 56.07; and (3)
the trial court erred in requiring that the complaint contain “magic words” averring that
BMHI was a governmental entity. We note, however, that the trial court‟s grant of
summary judgment to BMHI was also based upon the fact that BMHI demonstrated that
Dr. Bhatti was not an employee of BMHI working within the scope of his employment at
the relevant time. Because BMHI filed an affidavit demonstrating that Dr. Bhatti was not
and had never been an employee and because Mr. Rogers filed no contrary evidence, the
court determined that BMHI had negated an essential element of Mr. Rogers‟s claim. If
this ruling is correct, any issues regarding the alternative bases for summary judgment are
pretermitted as moot.
                                            10
        BMHI asserted in its motion to dismiss, and Mr. Rogers did not dispute, that
BMHI is a governmental entity. As such, BMHI would be immune from suit unless such
immunity is removed by the Governmental Tort Liability Act (“GTLA”), which provides
in relevant part:

       Except as may be otherwise provided in this chapter, all governmental
       entities shall be immune from suit for any injury which may result from the
       activities of such governmental entities wherein such governmental entities
       are engaged in the exercise and discharge of any of their functions,
       governmental or proprietary.

Tenn. Code Ann. § 29-20-201(a) (2012). The GTLA provides for removal of immunity
only in certain specifically enumerated instances, only one of which would be potentially
applicable here where Mr. Rogers alleged “injury proximately caused by a negligent act
or omission of any employee within the scope of his employment . . . .” See Tenn. Code
Ann. § 29-20-205 (2012).2

        In support of its motion for summary judgment, however, BMHI filed an affidavit
from BMHI‟s director of human services, who stated that Dr. Bhatti was not and had
never been an employee of BMHI. Mr. Rogers never filed any evidence to contradict this
affidavit. Therefore, BMHI conclusively established that Dr. Bhatti was not an
employee, such that immunity could not be removed on that basis. See Tenn. Code Ann.
§ 29-20-205. In the absence of a basis for removal of immunity, the trial court properly
determined that BMHI was immune from suit. See Tenn. Code Ann. § 29-20-201.
Summary judgment was appropriately granted to BMHI on that basis. Therefore, this
Court will not explore the other bases for summary judgment regarding the statute of
limitations or Mr. Rogers‟s failure to allege BMHI‟s governmental entity status.

       Mr. Rogers also argues, however, that the trial court‟s grant of summary judgment
on the above ground was improper because he was not allowed additional time for
discovery regarding the legal status of BMHI. As Tennessee Rule of Civil Procedure
56.07 provides:

               Should it appear from the affidavits of a party opposing the motion
       that such party cannot for reasons stated present by affidavit facts essential
       to justify the opposition, the court may refuse the application for judgment
       or may order a continuance to permit affidavits to be obtained or

2
 We note that although Mr. Rogers failed to allege in his complaint that BMHI was a governmental entity
or that his action was brought pursuant to the GTLA, he did allege that Dr. Bhatti was an employee of
BMHI acting within the scope of his employment when he treated Mr. Rogers.
                                                  11
        depositions to be taken or discovery to be had or may make such other
        order as is just.

We note that Mr. Rogers filed no such affidavit in this matter. Although Mr. Rogers‟s
counsel did mention to the trial court that he would like to have additional time for
discovery relating to Dr. Bhatti‟s employment status during the hearing on BMHI‟s
summary judgment motion, counsel filed no formal motion.3 The trial court granted
summary judgment to BMHI on March 24, 2014, but the final order in this matter was
not entered until January 9, 2015, following additional time granted by the court for
discovery regarding Dr. Bhatti‟s summary judgment motion. If Mr. Rogers had
discovered any countervailing evidence regarding either BMHI or Dr. Bhatti‟s legal
status during that time period, Mr. Rogers had ample time to file a motion and present
that evidence to the court or otherwise request additional discovery. Furthermore,
assuming, arguendo, that Mr. Rogers had asked for such additional time for discovery, it
is well settled that the “decision of the trial court in discovery matters will not be reversed
on appeal unless a clear abuse of discretion is demonstrated.” See Benton v. Snyder, 825
S.W.2d 409, 416 (Tenn. 1992). We therefore find this issue to be without merit.

                                           VII. Conclusion

        For the foregoing reasons, we affirm the trial court‟s grant of summary judgment
to BMHI. We reverse the trial court‟s grant of summary judgment to Dr. Bhatti,
determining that a genuine issue of material fact exists precluding summary judgment.
Costs on appeal are taxed one-half against the appellant, Justin R. Rogers, and one-half
against the appellee, Dr. Mohammed A. Bhatti. This case is remanded to the trial court
for further proceedings consistent with this opinion.



                                                         _________________________________
                                                         THOMAS R. FRIERSON, II, JUDGE




3
 The trial court did, however, grant the plaintiff an additional 120 days for discovery with regard to Dr.
Bhatti‟s motion for summary judgment.
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