                                              I N      T H E    C O U R T      O F   A P P E A L S                 A T      N A S H V I L L E




P A T R I C I A               A .     M E R L O                                          )
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                  P l a i n t i f f - A p p e l l a n t                                  )                                                            July 14, 1999
                                                                                         )       A    p    p   e    a    l N o     .
                                                                                         )       0    1    A   0    1    - 9 8 1   1 - C V - 0 0 Cecil Crowson, Jr.
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                  v .                                                                    )       D    a    v   i    d    s o n     C i r c u i Appellate Court Clerk
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                                                                                         )       N    o    .   9    7    C - 3 7   0 3
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G . P A T R I C K M A X W E L L , M . D .                                                )
a n d N A S H V I L L E P L A S T I C                                                    )
S U R G E R Y , L T D                                                                    )
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                  D e f e n d a n t s - A p p e l l e e s                                )




                        A P P E A L E D             F R O M    T H E     C I R C U I T       C O U R T              O F      D A V I D S O N    C O U N T Y

                                       T H E         H O N O R A B L E       M A R I E T T A         M .           S H I P L E Y ,      J U D G E


R o b e r t L . H u s k e y
5 1 4 H i l l s b o r o B l v d .
M a n c h e s t e r , T N 3 7 3 5 5

                  A t t o r n e y         f o r         P l a i n t i f f - A p p e l l a n t

N   o   e l       F .       S t a   h l
E   .     T   o   d d       P r e   s n e l    l
B   r   y a   n     K   .     W i   l l i a    m    s
C   O   R N   E   L I   U   S &       C O L    L    I N S , L L P
5   1   1     U   n i   o   n S     t r e e    t    , S u i t e 2 7 0 0
N   a   s h   v   i l   l   e ,     T N 3      7    2 1 9

                  A t t o r n e y s            f o r      D e f e n d a n t s - A p p e l l e e s


                                                                  V A C A T E D      A N D      R E M A N D E D


                                                                            H o u s t o n      M .         G o d d a r d ,            P r e s i d i n g       J u d g e


C O N C U R :

F R A N K S ,               J .
S U S A N O ,               J .
                            O    P   I   N   I   O   N




          Patricia A. Merlo appeals the dismissal of her suit

alleging medical malpractice against Patrick Maxwell, M.D., and

the Nashville Plastic Surgery, Ltd., by summary judgment.                     Ms.

Merlo brought suit alleging Dr. Maxwell failed to obtain her

informed consent for the use of silicone implants during multiple

breast reconstruction surgeries and further that Dr. Maxwell

negligently chose to use silicone implants rather than saline.

The Circuit Court of Davidson County dismissed Ms. Merlo’s claims

finding, as a matter of law, that Ms. Merlo’s claims were barred

on their face by the three-year statute of repose.



                                     Facts



          In 1987, Ms. Merlo came to Dr. Maxwell, who practices

under the name of Nashville Plastic Surgery, Ltd., due to her

diagnosis of breast cancer and her need to have bilateral

mastectomies and breast reconstruction surgery.                   Ms. Merlo

alleges that she and Dr. Maxwell discussed the types of implants

which could be used in her procedure.                    Dr. Maxwell informed Ms.

Merlo that he could use either saline breast implants or silicone

gel breast implants.   Dr. Maxwell further informed Ms. Merlo that

silicone gel implants were known to be a greater health hazard

than the saline implants.       Ms. Merlo asked for the saline

implants to be used and alleges that Dr. Maxwell assured her that

he was using saline implants in her procedures.




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          On June 10, 1987, Dr. Maxwell performed bilateral

subcutaneous mastectomies on the plaintiff.   During this

procedure, Dr. Maxwell inserted saline tissue expanders, which

allowed gradual expansion of breast tissue through periodic

injection of saline solution into the expanders.   On August 27,

1987, Dr. Maxwell performed breast reconstruction on Ms. Merlo.

During this procedure, Dr. Maxwell removed the saline tissue

expanders and replaced them with silicone gel implants instead of

the saline implants.   On July 24, 1990, Dr. Maxwell performed

additional breast reconstruction surgery on Ms. Merlo.   Dr.

Maxwell removed Ms. Merlo’s existing implants, and replaced them

with two silicone gel implants in each breast.   On August 20,

1991, Dr. Maxwell performed a final surgery on Ms. Merlo.    During

this final procedure, Dr. Maxwell removed Ms. Merlo’s implants,

and replaced them with newly designed silicone gel implants.      Ms.

Merlo alleges that she was lead to believe that saline implants

were used during the entire course of treatment by Dr. Maxwell.



          In December of 1996, Ms. Merlo returned to Dr. Maxwell

for the purpose of evaluation and preparation for a subsequent

surgery to replace her implants.    While in his office, Ms. Merlo

was presented a form authorizing the use of silicone implants.

Ms. Merlo refused to sign the form stating that she would never

allow the use of silicone in her body.   Dr. Maxwell’s personnel

responded that silicone had already been implanted in her body.

Upon hearing this response, Ms. Merlo became hysterical.    For

many years since the original implant, Ms. Merlo suffered

physical problems consistent with silicone implants and leakage

of silicone, but Ms. Merlo had never considered the implants to

be the source of her health problems because she had always been

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assured that Dr. Maxwell used saline implants, instead of

silicone, during her breast reconstruction procedures.



          In June and September of 1997, Ms. Merlo had her

implants replaced by the Atlanta Plastic Surgery, P.A.   During

the course of the removal of the silicone gel implants, silicone

was found to be emanating from a tear in the capsule of one of

the implants.



          Subsequent to the office visit of December of 1996, Ms.

Merlo spoke with Dr. Maxwell who admitted that he could find no

notations in his records showing that he had informed Ms. Merlo

that he had used silicone implants.    Ms. Merlo also examined a

set of her records and failed to find any indications that she

had been informed of the use of silicone.



          Ms. Merlo filed this suit on November 25, 1997, within

one year of learning of the use of silicone by Dr. Maxwell.   Ms.

Merlo alleged in her complaint that Dr. Maxwell failed to get her

informed consent for the use of silicone breasts implants during

her breast reconstruction surgeries and further alleged that Dr.

Maxwell negligently performed those surgeries by choosing to use

the silicone gel breast implants.   Dr. Maxwell filed his Answer

on February 2, 1998.



          On March 13, 1998, Dr. Maxwell filed a Motion for

Summary Judgment pursuant to Rule 56 of the Tennessee Rules of

Civil Procedure.   The Motion for Summary Judgment asserted that

Ms. Merlo’s claim was barred by the three-year statute of repose

contained in T.C.A. 29-26-116(a)(3).   Ms. Merlo filed her

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response to the Motion for Summary Judgment on April 27, 1998.

In order to allow Ms. Merlo additional time to obtain discovery,

the Trial Court initially scheduled the hearing on the Motion for

Summary Judgment on September 28, 1998.



          On August 19, 1998, Ms. Merlo filed a Motion to Amend

seeking to add an additional paragraph to her complaint which

stated:

     In addition to the foregoing, Plaintiff would show to
     the Court that under the facts of this case, the
     Defendants . . . are guilty of fraudulent concealment
     in the utilization of the silicone implants while all
     the time keeping same from the Plaintiff and leading
     her to continue to believe until December of 1996, that
     her implants were of saline solution.

This Motion to Amend was supported by a Supplemental Affidavit in

which Ms. Merlo asserted that Dr. Maxwell led her to believe that

saline implants, instead of silicone gel implants, were used in

her procedures; furthermore, Ms. Merlo stated in this Affidavit

that her medical records did not indicate that she had even been

notified of the use of silicone gel implants.



          On August 24, 1998, Ms. Merlo filed a Motion to Compel

alleging that Dr. Maxwell failed to respond appropriately to her

Discovery.   Ms. Merlo specifically sought a more complete

response to the following question: “Have you ever received any

treatment for alcohol or drug abuse from January of 1987 until

the present and if so, when and at what institution and attach to

these Interrogatories, a copy of your complete treatment record

from that institution?”   Dr. Maxwell responded to this

Interrogatory by stating: “On January 18, 1997, I voluntarily

admitted myself to an alcohol rehabilitation/treatment center for

alcohol dependency, and I successfully completed that program.    I

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do not have possession of my ‘complete treatment record.’”    Ms.

Merlo sought to compel Dr. Maxwell to provide the name and

institution at which he received treatment and a copy of his

records in order to substantiate allegations of the use of

cocaine or other drugs during the period of Ms. Merlo’s

treatment.



          Dr. Maxwell objected to supplying any more information

than given in his answer as the requested documents were

irrelevant, privileged, confidential, and not subject to

discovery.   Dr. Maxwell further argued that he had already stated

in his responses to the Interrogatories that he did not use

illegal drugs at any time from 1987 to the present.   The Trial

Court sustained Dr. Maxwell’s objection on September 21, 1998,

thereby denying the information to Ms. Merlo.



          Dr. Maxwell’s Motion for Summary Judgment was heard on

October 30, 1998.   The Trial Court found that Ms. Merlo’s claims

were barred by the three-year statute of repose and granted Dr.

Maxwell’s Motion for Summary Judgment.   In making this

determination, the Trial Court stated that Ms. Merlo’s Complaint

did not contain allegations sufficient to support a claim for

fraudulent concealment as an exception to the statute of repose.

The Trial Court found that Ms. Merlo’s Motion to Amend was never

docketed nor heard by the court, but further held that, even if

leave to amend was granted and/ or Ms. Merlo’s Complaint was

deemed sufficient to allege fraudulent concealment, Ms. Merlo

failed to provide sufficient evidence to establish the essential

elements of fraudulent concealment.




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            Ms. Merlo filed her Notice of Appeal on November 20,

1998 submitting the following issues for review:



I.    Did the Honorable Circuit Judge commit reversible error by

granting Summary Judgment in favor of the Defendants holding the

case was barred by the three (3) year statute of repose despite

allegations and Affidavits of fraudulent concealment by the

Defendants?



II.    Did the Honorable Trial Judge commit error in not allowing

the Plaintiff to obtain Discovery information about Dr. Maxwell’s

treatment for alcohol or drug abuse which records might disclose

information about his illegal use of drugs during the time of his

treatment of the Plaintiff?



                           Statute of Repose



            In addressing Ms. Merlo’s first issue, we recognize

that the standards governing an appellate court's review of a

trial court's action on a motion for summary judgment are well

settled.    Since our inquiry involves purely a question of law, no

presumption of correctness attaches to the trial court's

judgment.     Carvell v. Bottoms, 900 S.W.2d 23, 26 (Tenn. 1995).

Our task is confined to reviewing the record to determine whether

the requirements of Rule 56 of the Tennessee Rules of Civil

Procedure have been met.    Cowden v. Sovran Bank/Cent. S., 816

S.W.2d 741, 744 (Tenn.1991).    Rule 56.03 of the Tennessee Rules

of Civil Procedure provides that summary judgment is only

appropriate where: (1) there is no genuine issue with regard to

the material facts relevant to the claim or defense contained in

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the motion, Byrd v. Hall, 847 S.W.2d 208, 210 (Tenn.1993); and

(2) the moving party is entitled to a judgment as matter of law

on the undisputed facts.   Anderson v. Standard Register Co., 857

S.W.2d 555, 559 (Tenn.1993).    The moving party has the burden of

proving that its motion satisfies these requirements.    Downen v.

Allstate Ins. Co., 811 S.W.2d 523, 524 (Tenn.1991).



          The standards governing the assessment of evidence in

the summary judgment context are also well established.       Courts

must view the evidence in the light most favorable to the

nonmoving party and must also draw all reasonable inferences in

the nonmoving party's favor.    Byrd, 847 S.W.2d at 210-11.    Courts

should grant a summary judgment only when both the facts and the

conclusions to be drawn from the facts permit a reasonable person

to reach only one conclusion.    Byrd, 847 S.W.2d at 210-11.



          Since neither party questions that three years had

passed since the date of the alleged malpractice, we turn to

whether there are disputed issues of material fact regarding

fraudulent concealment on the part of Dr. Maxwell so as to avoid

application of the three-year statute of repose.



          Our Supreme Court has fully explained and explored the

requirements necessary to establish fraudulent concealment in

Shadrick v. Coker:

     [A] plaintiff in a lack of informed consent case (or
     any other medical malpractice case) attempting to toll
     the statute of repose contained in T.C.A.
     29-26-116(a)(3) by relying upon the fraudulent
     concealment exception to the statute must establish
     that (1) the health care provider took affirmative
     action to conceal the wrongdoing or remained silent and
     failed to disclose material facts despite a duty to do
     so, (2) the plaintiff could not have discovered the

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     wrong despite exercising reasonable care and diligence,
     (3) the health care provider knew of the facts giving
     rise to the cause of action and, (4) a concealment,
     which may consist of the defendant withholding material
     information, making use of some device to mislead the
     plaintiff, or simply remaining silent and failing to
     disclose material facts when there was a duty to speak.

Shadrick v. Coker, 963 S.W.2d 726, 736 (Tenn.1998).   If the

plaintiff establishes fraudulent concealment on the part of the

defendant, the plaintiff has one year after discovery to bring

the cause of action.   Tenn.Code Ann. § 29-26-116(a)(3)(1980).



           With regard to the first requirement, that the

defendant took affirmative action to conceal the cause of action

or remained silent and failed to disclose material facts despite

a duty to do so, when there is a confidential or fiduciary

relationship between the parties, the "failure to speak where

there is a duty to speak is the equivalent of some positive act

or artifice planned to prevent inquiry or escape investigation."

Hall v. De Saussure, 41 Tenn.App. 572, 581, 297 S.W.2d 81, 85

(1956).   Furthermore, “such a duty arises where a confidential

relationship exists, as between physician and patient.    In such

cases, there is a duty to disclose, and that duty may render

silence or failure to disclose known facts fraudulent.”     Benton

v. Snyder, 825 S.W.2d 409, 414 (Tenn.1992) (emphasis in original)

(citations omitted).   With regard to the final element, this same

physician-patient relationship “impose[s] a duty to make a full

disclosure of the material facts, mere silence or nondisclosure

may constitute concealment.   Shadrick v. Coker, 963 S.W.2d 726,

736 (Tenn. 1998).



           After thorough review of the record, we find that there

is evidence sufficient to create a jury issue on all of the key

                                 9
elements of fraudulent concealment.   We hold that the jury could

reasonably find that Dr. Maxwell concealed the use of silicone

breast implants by leading Ms. Merlo to believe that saline

implants were used in her procedures.   The jury could also infer

concealment from Dr. Maxwell’s failure to disclose the use of the

silicone gel implants and the risks and potential complications

involved despite a relationship creating a duty to disclose.

Through both Dr. Maxwell’s failure to disclose that silicone

implants were used and his actions which led Ms. Merlo to believe

that saline implants were used in all operations, a jury could

reasonably infer that Dr. Maxwell had knowledge of the facts

giving rise to the cause of action.



          We are also persuaded that Ms. Merlo could have

reasonably believed Dr. Maxwell, despite her physical ailments,

when he told her that she was receiving saline breasts implants.

Furthermore, “[w]hether the plaintiff exercised reasonable care

and diligence in discovering the injury or wrong is usually a

question of fact for the jury to determine.    Shadrick v. Coker

963 S.W.2d 726, 737 (Tenn. 1998) (quoting Wyatt v. A-Best, Co.,

910 S.W.2d 851, 854 (Tenn.1995)).    Finally, we also find that Ms.

Merlo’s Complaint contained sufficient allegations, specifically

those relied upon above, to support a claim of fraudulent

concealment.



          After taking the strongest legitimate view of Ms.

Merlo’s evidence, discarding all countervailing evidence and

allowing all reasonable inferences to the plaintiff, we hold that

more than one conclusion can be drawn from the evidence presented




                               1 0
for the reasons stated above.    Therefore, we find that this is

not an appropriate case for summary judgment.



                    Ms. Merlo’s Discovery Request



            We now turn to Ms. Merlo’s second issue--whether the

Trial Court erred in denying Ms. Merlo access to information

concerning Dr. Maxwell’s treatment for alcohol or drug abuse.

Ms. Merlo argues that evidence of drug or alcohol dependency

could explain malpractice committed by Dr. Maxwell.



            As previously noted, during pretrial discovery, Ms.

Merlo served the following interrogatory on Dr. Maxwell: “Have

you ever received any treatment for alcohol or drug abuse from

January of 1987 until the present and if so, when and at what

institution and attach to these Interrogatories, a copy of your

complete treatment record from that institution?”    Dr. Maxwell

responded to this Interrogatory by stating: “On January 18, 1997,

I voluntarily admitted myself to an alcohol rehabilitation/

treatment center for alcohol dependency, and I successfully

completed that program.    I do not have possession of my ‘complete

treatment record.’”    The Trial Court refused to force Dr. Maxwell

to supply any more information regarding his rehabilitation

program and, instead, sustained Dr. Maxwell’s objection to this

question.



            It is well settled that decisions with regard to pre-

trial discovery matters rest within the sound discretion of the

trial court.    The decision of the trial court in discovery

matters will not be disturbed on appeal unless a clear abuse of

                                 1 1
discretion is demonstrated.     Benton v. Snyder, 825 S.W.2d 409,

416 (Tenn. 1992) (citing Paine v. Ramsey, 591 S.W.2d 434, 436

(Tenn.1979).   We find no clear abuse of discretion at this time.



          For the foregoing reasons the judgment of the Trial

Court is vacated and the cause remanded for further proceedings

consistent with this opinion.    Costs of appeal are adjudged

against the Defendants.



                                _______________________________
                                Houston M. Goddard, P.J.


CONCUR:



________________________________
Herschel P. Franks, J.



________________________________
Charles D. Susano, Jr., J.




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