                   IN THE COURT OF APPEALS OF TENNESSEE
                        WESTERN SECTION AT JACKSON
                                                                    FILED
                                                                      Feb. 20, 1997
JOSEPH CHIDESTER and wife,             )
KATHLEEN CHIDESTER,                    )                         Cecil Crowson, Jr.
                                       )                          Appellate Court Clerk
             Plaintiffs/Appellants,    ) Tipton Circuit No. 4193
                                       )
VS.                                    ) Appeal No. 02A01-9602-CV-00029
                                       )
L. D. ELLISTON, O.D.,                  )
                                       )
             Defendant/Appellee.       )


            APPEAL FROM THE CIRCUIT COURT OF TIPTON COUNTY
                      AT COVINGTON, TENNESSEE
               THE HONORABLE JOSEPH H. WALKER, III, JUDGE




STEPHEN R. LEFFLER
LINDA D. FUTRELL
Memphis, Tennessee
Attorneys for Appellants


WILLIAM W. DUNLAP, JR.
Memphis, Tennessee
Attorney for Appellee




REVERSED AND REMANDED




                                                           ALAN E. HIGHERS, J.



CONCUR:

DAVID R. FARMER, J.

HOLLY KIRBY LILLARD, J.
    In this medical malpractice action, the Plaintiffs, Joseph and Kathleen Chidester,
filed suit against the Defendant, Dr. L. D. Elliston, for failing to diagnose the Plaintiff’s

malignant tumor. The trial court granted the Defendant’s motion for summary judgment

holding that the Plaintiffs’ cause of action is barred by the one year statute of limitations.

The Plaintiffs’ have appealed the trial court’s order arguing that the statute of limitations

does not bar this action because the Plaintiffs’ cause of action did not accrue until the

Plaintiff’s malignancy recurred. For the reasons stated hereafter, we reverse the judgment

of the court below and remand.



                                            FACTS



       In February of 1992 while on vacation in Arizona, the Plaintiff developed a sinus

infection and noticed the presence of blood in his urine. The Plaintiff visited Dr. Charles

Ballanger at the Paradise Valley Emergency Center in Phoenix, Arizona. Dr. Ballanger

prescribed certain medications for the Plaintiff’s sinus infection and told the Plaintiff to visit

a doctor when he returned home concerning the presence of blood in his urine.



       On March 10, 1992, the Plaintiff visited the Defendant and complained of a sinus

infection and the presence of blood in his urine. The Defendant conducted a urinalysis

which revealed both red and white blood cells in the Plaintiff’s urine. The Defendant

diagnosed the Plaintiff as having a kidney infection and prescribed several medications.

On March 17, 1992, the Plaintiff again visited the Defendant and complained of blood in

his urine. The Defendant advised the Plaintiff to remain on the medication that he had

previously prescribed. In July of 1992, blood reappeared in the Plaintiff’s urine, and the

Plaintiff visited the Defendant and again complained of the presence of blood in his urine.

The Defendant then prescribed a different medication for the Plaintiff.



       On December 22, 1992, the Plaintiff sought the advice of another general practice

physician, Dr. Jeffrey May. Dr. May scheduled the Plaintiff for an intravenous pyelogram

which revealed the presence of a malignant tumor on the Plaintiff’s right kidney. Dr. May

referred the Plaintiff to a urologist, Dr. Richard Pearson, who removed the Plaintiff’s right



                                                2
kidney along with the malignant tumor attached to it on January 18, 1993.



       After the removal of the Plaintiff’s right kidney, Dr. Pearson told the Plaintiff that he

should have no further problems with the malignancy since the tumor was confined to the

right kidney which was removed. Dr. Pearson examined the Plaintiff periodically in 1993

after the Plaintiff’s surgery in order to monitor the Plaintiff’s progress.



       In December of 1993, Dr. Pearson performed a CAT scan on the Plaintiff which

revealed the recurrence of a malignant tumor in the area where the Plaintiff’s right kidney

with the malignancy once had been. Dr. Pearson referred the Plaintiff to an oncologist, Dr.

Schwartzberg.



       In order to treat the second malignant tumor, the Plaintiff underwent a course of

chemotherapy from February through March of 1994 and a second surgery in May of 1994.

On November 10, 1994, the Plaintiffs filed their complaint.



                                             LAW



       The issue before this Court is whether the trial court erred in granting the

Defendant’s motion for summary judgment based upon the one year statute of limitations

contained in T.C.A. § 29-26-116 (1980).



       This Court reviews the trial court’s grant of summary judgment de novo upon the

entire record with no presumption of correctness. Cowden v. Sovran Bank/Central South,

816 S.W.2d 741, 744 (Tenn. 1991); Foley v. St. Thomas Hosp., 906 S.W.2d 448, 452

(Tenn. Ct. App. 1995); Brenner v. Textron Aerostructures, A Division of Textron, Inc., 874

S.W.2d 579, 582 (Tenn. Ct. App. 1993). No presumption of correctness attaches to

decisions granting summary judgment because they evoke only questions of law. Foley,

906 S.W.2d at 452. Thus, we must make a fresh determination on appeal as to whether

or not the requirements of Rule 56 of the Tennessee Rules of Civil Procedure have been



                                               3
met. Id.; Hill v. City of Chattanooga, 533 S.W.2d 311, 312 (Tenn. Ct. App. 1975).



       While the summary judgment procedure is not a substitute for trial, it goes to the

merits of the complaint and should not be taken lightly. Byrd v. Hall, 847 S.W.2d 208, 210

(Tenn. 1993); Jones v. Home Indem. Ins. Co., 651 S.W.2d 213, 214 (Tenn. 1983); Fowler

v. Happy Goodman Family, 575 S.W.2d 496, 498 (Tenn. 1978); Foley, 906 S.W.2d at 452.

It has been repeatedly stated by the appellate courts of this state that the purpose of a

summary judgment proceeding is not the finding of facts, the resolution of disputed factual

issues or the determination of conflicting inferences reasonably to be drawn from the facts.

Bellamy v. Federal Express Corp., 749 S.W.2d 31, 33 (Tenn. 1988). Rather, the purpose

of summary judgment is to resolve controlling issues of law. Id.



       In evaluating the propriety of a motion for summary judgment, we must first

determine whether a genuine issue of material fact exists. Tenn. R. Civ. P. 56. In doing

so, we must consider the pleadings and the evidentiary materials in the light most favorable

to the movant’s opponent and draw all reasonable inferences in the opponent’s favor.

Byrd, 847 S.W.2d at 210.



       In a malpractice action, the plaintiff has the burden of proving:

              (1) The recognized standard of acceptable professional
              practice in the profession and the specialty thereof, if any, that
              the defendant practices in the community in which he practices
              or in a similar community at the time the alleged injury or
              wrongful action occurred;
              (2) That the defendant acted with less than or failed to act with
              ordinary and reasonable care in accordance with such standard; and
              (3) As a proximate result of the defendant’s negligent act or
              omission, the plaintiff suffered injuries which would not
              otherwise have occurred.

T.C.A. § 29-26-115 (1980).

       Pursuant to T.C.A. §29-26-116(a)(1), the statute of limitations for malpractice

actions is one year. However, in the event that the alleged injury is not discovered within

the one year period, the limitations period is one year from the date from which the plaintiff

discovers his or her injury. T.C.A. §29-26-116(a)(1) (1980). Thus, under Tennessee law,

a statute of limitations begins to run when the plaintiff discovers or, in the exercise of


                                              4
reasonable care and diligence for his own health and welfare, should have discovered the

resulting injury. Teeters v. Currey, 518 S.W.2d 512, 517 (Tenn. 1974); McCroskey v.

Bryant Air Conditioning Co., 524 S.W.2d 487, 491 (Tenn. 1975); Roe v. Jefferson, 875

S.W.2d 653, 656 (Tenn. 1994); Wyatt v. A-Best Products Co., Inc., 924 S.W.2d 98, 103

(Tenn. Ct. App. 1995).



       In the present case, the trial court held that the Plaintiffs’ cause of action for medical

malpractice accrued in January of 1993 when the Plaintiff was told that a malignant tumor

measuring two inches in diameter was present on the Plaintiff’s right kidney. The Plaintiffs,

however, argue that their cause of action did not accrue until December of 1993 when the

Plaintiff’s cancer recurred. The Plaintiffs contend that their cause of action for medical

malpractice did not accrue in January of 1993 because the Plaintiffs suffered no damages

in January of 1993 as a result of the Defendant’s misdiagnosis. The Plaintiff’s malignant

tumor on his right kidney existed regardless of the Defendant’s misdiagnosis of the

Plaintiff’s condition. Thus, the Plaintiffs’ cause of action is not based upon the Plaintiff’s

cancer. Rather, the Plaintiffs’ complaint is based upon the metastasis of the Plaintiff’s

cancer.   The Plaintiffs argue that the Plaintiff’s cancer would not have reappeared in

December of 1993 had the Defendant properly diagnosed the Plaintiff’s condition in March

of 1992. In support of their argument, the Plaintiffs present the affidavits of two physicians

who both testified that the chemotherapy treatments in February and March of 1994 and

the second surgery in May of 1994 may not have been necessary if the Plaintiff’s malignant

tumor had been detected and treated in March of 1992 by the Defendant.



       Therefore, the Plaintiffs argue that they did not know or have reason to know of their

malpractice cause of action until December of 1993. The Plaintiffs contend that they were

not put on notice of any injury resulting from the Defendant’s misdiagnosis until December

of 1993 when Dr. Pearson performed a CAT scan on the Plaintiff which revealed the

recurrence of a malignant tumor in the area where the Plaintiff’s right kidney with the

malignancy once had been. Because the element of damages is essential in bringing an

action for medical malpractice, the Plaintiffs’ assert that their cause of action did not accrue



                                               5
until December of 1993 when the Plaintiffs were first put on notice of the injury resulting

from the Defendant’s misdiagnosis of the Plaintiff’s condition.



       We have not yet had the opportunity to address the issue of when a medical

malpractice cause of action accrues where there is no actionable injury as a result of a

defendant’s misdiagnosis of cancer other than the metastasis or the recurrence of the

cancer.   In considering this issue, we have looked to case precedent from other

jurisdictions which have addressed the same issue.



       In Johnson v. Mullee, 385 So.2d 1038 (Fla. Dist. Ct. App. 1980), the Court of

Appeals for the State of Florida confronted the same issue. In Johnson, the defendant

physician performed a breast examination on the plaintiff on September 22, 1972.

Johnson, 385 So.2d at 1039. The defendant found “diffusely cystic areas” in the plaintiff’s

left breast but did not investigate the nature of those lumps. On March 7, 1973, the plaintiff

consulted her father, a surgeon, who examined her breast. A biopsy was performed which

revealed the existence of a malignant tumor in the plaintiff’s breast. The plaintiff underwent

a radical mastectomy on March 12, 1973. Pathology reports on the removed tissues

revealed cancer of the plaintiff’s left breast with metastasis to three auxiliary lymph nodes.

In February of 1975, a bone scan was performed upon the plaintiff which showed that the

cancer had spread to the plaintiff’s ribs and skull. The plaintiff filed her medical malpractice

cause of action on November 29, 1976. The court held that the plaintiff’s cause of action

did not accrue until February of 1975. The Johnson court reasoned as follows:

              It was in February 1975 that she [the plaintiff] first learned that the
              cancer had metastasized beyond the surgically removed portions.
              From the evidence presented, there is no basis on which to conclude
              that her cause of action should have been discovered with due
              diligence prior to that time. Although she had a basis for belief that
              appellee doctor [the defendant] was negligent in not discovering her
              cancer, the evidence is to the effect that, had he discovered the
              cancer at that time, she would have been required to undergo the
              same radical mastectomy, which she later had. At the time the radical
              mastectomy was performed, she had no cause of action against
              appellee doctor because there was no evidence that his alleged
              negligence had resulted in any harm to her. It was only in February
              1975, when the cancer appeared in other parts of her body, that she
              discovered her cause of action. It was only then that she could have
              known she had been harmed by the alleged negligent diagnosis.



                                               6
Johnson, 385 So.2d at 1040. Thus, the court in Johnson concluded that even though the

plaintiff knew that the defendant had misdiagnosed her condition in March of 1973, the

plaintiff’s cause of action did not accrue until February of 1975 because it was not until

February of 1975 that the plaintiff knew that she had been damaged as a result of the

defendant’s misdiagnosis.



       The Illinois Appellate Court addressed the same issue in Janetis v. Christensen, 558

N.E.2d 304 (Ill. App. Ct. 1990). On April 7, 1982, the plaintiff visited the defendant and

complained of rectal bleeding. Janetis, 558 N.E.2d at 305. The defendant informed the

plaintiff that the bleeding was due to hemorrhoids and recommended no treatment. Id. at

305-6. The plaintiff visited the defendant again on July 29, 1982 because of his continual

bleeding, but the defendant diagnosed the problem as hemorrhoids and stated that “there

is nothing to worry about.” Id. at 306. In October of 1982, another physician, Dr. Moore,

examined the plaintiff. The plaintiff underwent a proctoscopy and a biopsy at Dr. Moore’s

request. In November of 1982, Dr. Moore told the plaintiff that he did have cancer but

surgery would rectify the problem. The plaintiff was admitted to the hospital the next day,

and Dr. Parenti surgically removed part of the plaintiff’s colon. Following the surgery, Dr.

Parenti told the plaintiff that “everything was all right” and that he was very pleased with the

outcome. In three subsequent visits to Dr. Parenti, “everything was going well,” and there

were no problems. In May of 1983, the plaintiff returned to Dr. Moore because he again

experienced rectal bleeding. Dr. Moore informed the plaintiff that the bleeding was due

to hemorrhoids and that there was no problem. The plaintiff returned to Dr. Moore in the

fall of 1983, and a proctoscopy examination revealed that the cancer had recurred. The

court in Janetis stated as follows:

              Because [the plaintiff] was told that all the cancer was removed
              in November 1982, it cannot be said as a matter of law that he
              should have had knowledge of his injury or even that
              defendants’ misdiagnosis caused him any harm. Not until the
              fall of 1983, within two years of the date [the plaintiff] filed his
              action, when the proctoscopy examination revealed the cancer
              had recurred and when [the plaintiff] was informed of the
              cancer’s progression, could it be found as a matter of law that
              [the plaintiff] should have been aware of his injury and the
              possibility that the defendants’ misdiagnosis was the cause.

Id. at 308. Although the plaintiff knew that the defendant misdiagnosed his condition in


                                               7
November of 1982, the Janetis court reversed the trial court’s grant of summary judgment

in favor of the defendant based upon the statute of limitations and held that the question

of whether the plaintiff knew or should have known of his injury and its cause before the

fall of 1983 should have been a question determined by the jury.



        In Wolf v. Bueser, 664 N.E.2d 197, 201-2 (Ill. App. Ct. 1996), the court cited the

cases of Johnson v. Mullee and Janetis v. Christenson and agreed with their rationale.

The court in Wolf reversed the trial court’s order which dismissed certain negligence counts

against a defendant physician because the plaintiff could possibly prove that her cause of

action for metastasis of undiagnosed breast cancer did not accrue until the cancer

recurred. The Wolf court agreed with a line of authority holding that where there is no

actionable injury resulting from a misdiagnosis of cancer other than the metastasis or

recurrence of the cancer, a plaintiff’s cause of action accrues on the discovery of the

metastasis or recurrence. The court in Wolf stated as follows:

                A cause of action accrues only when all the elements of the
                cause of action are present: duty, breach, and resulting injury
                or damage. Without accrual there can be no cause of action,
                and there is no cause of action until injury or damage has
                occurred. (internal citations omitted)

Id. at 204.



        Because a cause of action for medical malpractice does not accrue until the plaintiff

can prove that he has been damaged as a result of a defendant’s negligent act or

omission, we disagree with the trial court’s order holding that the Plaintiff’s cause of action

accrued in January of 1993 when the plaintiff’s right kidney was removed. The Plaintiff was

put on notice of the defendant’s misdiagnosis of his condition in January of 1993; however,

it cannot be said as a matter of law that the Plaintiff knew or should have known that he

had been damaged as a result of the Defendant’s misdiagnosis. It is likely that the

Plaintiff’s right kidney would have had to have been removed regardless of the Defendant’s

misdiagnosis of the Plaintiff’s condition.1 Based upon the record before us, we conclude

that a genuine issue of material fact exists as to when the Plaintiff’s injury occurred and,


        1
          The only evidence on this issue suggests that removal of the Plaintiff’s kidney would have been
requ ired even if the D efenda nt’s initial diagnos is of the Plaintiff’s c ond ition had be en c orrect.

                                                   8
hence, when the Plaintiff knew or should have known of his cause of action against the

Defendant. We, therefore, reverse the trial court’s order granting summary judgment in

favor of the Defendant based upon the statute of limitations.



      The judgment of the trial court is hereby reversed and the cause is remanded.

Costs on appeal are taxed to the Appellee, for which execution may issue if necessary.




                                                      HIGHERS, J.

CONCUR:




FARMER, J.




LILLARD, J.




                                           9
