                   IN THE COURT OF APPEALS OF TENNESSEE
                               AT KNOXVILLE
                             March 22, 2004 Session

       ALLIE JANE COLLINS and husband, CLE COLLINS, v. DANA
              EDWARDS, M.D., and ROBERT HUNT, M.D.

                 Direct Appeal from the Circuit Court for Hamblen County
                   No. 98CV377     Hon. Kindall Lawson, Circuit Judge

                                      MAY 10, 2004

                                 No. E2003-01508-COA-R3-CV



The Trial Judge dismissed this medical malpractice action on the ground that the statute of
limitations had run. On appeal, we vacate and remand.


Tenn. R. App. P.3 Appeal as of Right; Judgment of the Circuit Court Vacated and Remanded.


HERSCHEL PICKENS FRANKS , P.J. (E.S.) delivered the opinion of the court, in which CHARLES D.
SUSANO, JR., J., and D. MICHAEL SWINEY, J., joined.


Timothy M. Pierce, Knoxville, Tennessee, for Appellants.

Jeffrey M. Ward, Greeneville, Tennessee, for Appellee, Dana Edwards, M.D.

Ronald L. Grimm, Knoxville, Tennessee, for Appellee, Robert Hunt, M.D.



                                            OPINION


                In this medical malpractice action filed on November 24, 1998, plaintiff’s Complaint
alleged that defendant Dana P. Edwards surgically removed her entire colon on October 15, 1996
and that defendants’ “are guilty of fraudulent concealment which tolled the statute of limitations.”
She further alleged that she first discovered that her healthy colon had been removed on June 16,
1998 and that Dr. Edwards intentionally failed to advise her of the actual condition of her colon and
“conspired to fraudulently hide” from her and her family that her colon was removed unnecessarily.
               In response to the Complaint, defendants filed a Motion for Summary Judgment on
the grounds that this medical malpractice action was barred on the ground the statute of limitatiosn
had run. (Tennessee Code Annotated § 29-26-115.)

                 The record establishes that following the surgery on October 15, 1996, Plaintiff was
hospitalized for two weeks. At a post-op follow-up in December 1996, she told Dr. Edwards that
she continued to have the same type of pain in her abdomen that she experienced before the surgery.
He responded that it would take time for the healing and there could still be post-operative changes
taking place in the muscle. Plaintiff testified that her post-operative pain associated with the surgical
site and incision was resolved within 60 to 90 days, but she continued to experience no improvement
in her pain experienced pre-surgery. In January of 1997, Dr. Edwards referred her to an orthopedic
surgeon with reference to her continuing complaint.

               Dr. Edwards testified that he was unable to determine the cause of plaintiff’s
continued pain, and came to view it as a chronic pain syndrome of uncertain etiology. He
discontinued seeing plaintiff in January, 1997,because, as the plaintiff explained, “he told me they
didn’t take Access Med Plus no more”.

                Plaintiff testified that on June 16, 1998, she received a telephone call from Dr.
Michael Wiseman, a gastroenterologist that she had seen in times past. Dr. Wiseman informed her
that according to the pathology report on the removed colon there was no evidence of ulcerative
colitis or any other significant pathology, and that her colon in fact had been entirely normal and
healthy and that defendants were keeping this “hid” from her.1

                The Trial Court granted summary judgment to Defendant doctors, on the ground the
statute of limitations had run on plaintiffs’ claims. The Court found that plaintiff’s continued pain
put her on notice of her claim. It is clear from the Trial Court’s comments at the time of ruling, that
he did not consider plaintiff’s claim of fraudulent concealment.

               Tenn. R. Civ. P. 56.03 provides that summary judgment is appropriate where (1) there
is no genuine issue of material fact relevant to the claim or defense contained in the motion, Byrd
v. Hall, 847 S.W.2d 208, 210 (Tenn. 1993); and (2) the moving party is entitled to a judgment as a
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 it has satisfied the requirements of
Rule 56.03. Downen v. Allstate Ins. Co.,, 811 S.W.2d 523, 524 (Tenn. 1991). Summary judgment
should be granted only when the facts and conclusions drawn from the facts permit a reasonable
person to reach only one conclusion, that the movant is entitled to judgment as a matter of law.

        1
         This testimony by plaintiff was filed along with defendants’ Motion for Summary Judgment
by defendants, and is relevant on the issue of when the plaintiff was first put on notice of her cause
of action. Peggy Baily, et al., v. Dr. John J. Tasker, No. C34264(M) filed March 17, 2004 (Tenn.
Ct. App., Eastern Section.)


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Wilson v. Mathes, 15 S.W.3d 865 (Tenn. Ct. App. 1999).

                Medical malpractice actions are governed by the Medical Malpractice Review Board
and Claims Act of 1975. Tenn. Code Ann. § 29-26-115, et seq. The Act codifies the common law
“discovery rule” and provides that the statute of limitations on a medical malpractice claim does not
begin to run until the plaintiff discovers, or reasonably should have discovered that he or she had
been injured as a result of wrongful conduct of another. Tenn. Code Ann. § 29-16-116(a)(2).
Teeters v. Currey, 518 S.W.2d 512, 513 (Tenn. 1974). The discovery rule does not permit the
claimant to delay filing suit until all the injurious consequences of the alleged wrongdoing are known
to him or her. Shadrick v. Coker, 963 S.W.2d 726, 733 (Tenn. 1998); Foster v. Harris, 633 S.W.2d
304, 305 (Tenn. 1982).

               Plaintiff in her deposition said that Dr. Edwards “guaranteed her” no pain if she
permitted him to remove her colon, by saying “I guarantee you no pain”. In this regard defendants
argued before the Trial Court and this Court that because Ms. Collins showed no improvement in
her condition following surgery, continued to experience pain, and suspected very early that the
surgery was unsuccessful especially given her belief that she received a “guarantee” of a successful
outcome, a duty was imposed upon her to investigate her problem under a suspicion of malpractice.2

               Significantly, plaintiff did not sue in contract on the doctor’s “guarantee”, but rather
the gravamen of her action is for fraudulently concealing the removal of a healthy colon. The
Supreme Court in Shadrick v. Coker, 963 S.W.2d 726, 734-35 (Tenn. 1998) addressed the elements
of a fraudulent concealment claim and said:

               . . . [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 wrong despite exercising reasonable care and
               diligence, (3) the healthcare 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, 963 S.W.2d 736.

               Taking the strongest legitimate view of the evidence in plaintiff’s favor, the record
establishes by expert testimony that defendant had a duty to advise plaintiff of the condition of her

       2
         Dr. Edwards’ entire deposition was not filed for purposes of his summary judgment motion,
but the record indicates that he denies giving her a “guarantee”.

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colon after it was removed, and failed to do so. The issue becomes whether or not the plaintiff
should have discovered the wrong, or whether the plaintiff could not have discovered the wrong
despite exercising reasonable care and diligence. In this regard, Judge Farmer writing for this Court
in Jacobs v. Singh, 2002 WL 27821 (Tenn. Ct. App. 1998) said:

               “The statute of limitations begin to run when the plaintiff is “aware of the facts
               sufficient to put a reasonable person on notice that he has suffered an injury as a
               result of wrongful conduct”, and the plaintiff knows the identity of the person who
               engaged in that conduct. Roe v. Jefferson, 875 S.W.2d 653 (Tenn. 1994). This
               requires not only that the plaintiff be aware of the injury, but also that he be aware
               that the injury was caused by the wrongful act. McClellan v. Stanley, 978 S.W.2d
               943, 945 (Tenn. Ct. App. 1998). The determination becomes one of when the patient
               had “sufficient information” to put him on notice that he had suffered an injury and
               that the injury was caused by a wrongful act. Roe at 658.. The standard has evolved
               in light of the unique nature of the patient-physician relationship, which must be
               based on trust and confidence, as the patient pursues his physician’s recommended
               course of treatment. See McClellen, 978 S.W.2d at 945. The determination of when
               a reasonable person should know that his injury was caused by some wrongful or
               negligent act is generally a question of fact for the trier of fact. See e.g., Id.

                 In Jacobs plaintiff’s complaints had been that “she felt her pain had not been
alleviated, but that she felt worse than before surgery”. The Court went on to hold that the question
of whether Ms. Jacobs should have suspected deficiency of surgery was not susceptible to only one
conclusion and therefore the issue of whether the statute had run was for the trier of fact.

                Contrary to defendants’ position, Ms. Collins claimed injury is not the negligent
failure to alleviate pain. Simply put, it is the needless removal of a normal healthy colon. The
pivotal question is what is the earliest point that Ms. Collins was aware or should have been aware
that a healthy organ had been excised. From that perspective, it is apparent that her pain would not
provide any indication that the doctor had allegedly withheld information from her regarding the
condition of her colon, once removed. She only became aware of the pathology report by unsolicited
information received on June 16, 1998.

                Defendants presented no evidence that plaintiff had knowledge or notice of either the
existence of an injury that was connected to and caused by defendants’ wrongful conduct prior to
June 16, 1998. Even if no medical errors had occurred over the course of her treatment, Ms. Collins
could still have had a bad surgical outcome. Not every surgical result is successful, but that does not
necessarily indicate malpractice. Moreover, finders of fact cannot infer negligence simply from a
bad result. See e.g., Johnson v. Lawrence, 720 S.W.2d 50, 56 (Tenn. Ct. App. 1986); Redwood v.
Rasking, 350 S.W.2d 414, 417 (Tenn. Ct. App. 1961). As in Jacobs, Ms. Collins did not know she
had been injured.

               We conclude this is a proper case for a jury to determine whether the statute of


                                                 -4-
limitations bars her claim and falls within the general rule that the issue of when a plaintiff
reasonably should have discovered his or her injury based on facts in his or her possession is a
question of fact for a jury. McLellan v. Stanley, 978 S.W.2d 943 (Tenn. Ct. App. 1998); Chidester
v. Elliston, 1997 WL 71932 (Tenn. Ct. App. 1997); Green v. Sacks, 56 S.W.3d 513 (Tenn. Ct. App.
2001). See also, Sullivant v. Americana Homes, Inc., 605 S.W.2d 246, 249 (Tenn. Ct. App. 1980);
McCroskey v. Bryant Air Conditioning Co., 524 S.W.2d 487, 493 (Tenn. 1975).

              Accordingly, we vacate the Judgment of the Trial Court and remand for further
proceedings consistent with this Opinion. The cost of the appeal is assessed to the defendants.




                                                     _________________________
                                                     Herschel Pickens Franks, J.




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