               IN THE COURT OF APPEALS OF TENNESSEE
                          AT KNOXVILLE
                                 June 30, 2015 Session

  JAMES R. VANDERGRIFF ET AL. v. PARKRIDGE EAST HOSPITAL ET AL.

                 Appeal from the Circuit Court for Hamilton County
                  No. 14C1038     W. Jeffrey Hollingsworth, Judge


              No. E2014-02253-COA-R3-CV-FILED-AUGUST 21, 2015


The parents of a minor child filed a pro se complaint asserting claims on behalf of their
daughter and individual claims by each parent. The complaint alleges that the daughter
was born with brain injuries and remains severely disabled due to the failure of health
care providers to treat her mother for a severe womb infection during two hospitalizations
preceding birth. Plaintiffs also allege that the complaint was filed timely, although it was
filed ten years after birth, because the defendants fraudulently concealed the fact that the
mother was not treated for the infection. The complaint states that the parents learned of
the infection in 2012 when they obtained medical records that included a previously-
undisclosed placenta pathology report. The defendants responded to the complaint by
filing Tenn. R. Civ. P. 12.02(6) motions to dismiss the parents’ individual claims
pursuant to the one-year statute of limitations, Tenn. Code Ann. § 29-26-116(a)(1)-(2),
and the daughter’s claims based upon the three-year statute of repose, Tenn. Code Ann.
§ 29-26-116(a)(3). The trial court dismissed the parents’ individual claims because the
complaint established that the parents learned of the infection no later than December 31,
2012, yet another eighteen months passed before the complaint was filed. As for the
daughter’s claims, the trial court concluded that her claims were barred by the statute of
repose. Plaintiffs appealed, contending that it was error to dismiss their individual claims
based upon the statute of limitations and the daughter’s claims on the statute of repose.
We affirm the dismissal of the parents’ claims as barred by the statute of limitations
because the complaint indicates that in 2012 the plaintiffs had sufficient facts to put a
reasonable person on notice that they had been injured by the defendants’ negligence, and
they failed to file their claims in a timely manner thereafter. As for the minor child’s
separate claims, they were asserted in a pro se complaint filed by her parents, and neither
of her parents is a licensed attorney. Although a parent “may sue or defend” on behalf of
their minor child, see Tenn. R. Civ. P. 17, a parent who is not “duly licensed” may not
engage in the “practice of law” on behalf of their minor child. See Tenn. Sup. Ct. R. 7,
§ 1.01; Tenn. Code Ann. § 23-3-103(a). A claim asserted in a pleading by a person who
is not entitled to practice law is a nullity. Bivins v. Hosp. Corp. of Am., 910 S.W.2d 441,
447 (Tenn. Ct. App. 1995); see Investors Grp., I Ltd. v. Knoxville's Cmty. Dev. Corp.,
No. E1999-00395-COA-R3-CV, 2001 WL 839837, at *2 (Tenn. Ct. App. July 25, 2001).
Because the parents’ attempt to assert claims on behalf of their daughter was a nullity, see
Gentry v. Gentry, 924 S.W.2d 678, 680 (Tenn. 1996), the trial court’s judgment on the
merits of the minor’s purported claims is vacated.

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

FRANK G. CLEMENT, JR., P.J., M.S., delivered the opinion of the Court, in which D.
MICHAEL SWINEY and JOHN W. MCCLARTY, JJ., joined.

James R. Vandergriff and Samantha J. Vandergriff, Pro se.

H. Dean Clements and Brie Allaman Stewart, Chattanooga, Tennessee for the appellees,
ParkRidge East Hospital.

F. Laurens Brock, Rocklan W. King III, and Donna L. Boyce, Nashville, Tennessee for
the appellees, Richard J. Bowers, M.D., Elizabeth M. Bowers, M.D., and Chattanooga
Women’s Specialist, P.C.

Arthur P. Brock and Drew H. Reynolds, Chattanooga, Tennessee, for the appellees,
Shawn P. Stallings, M.D. and Regional Obstetrical Consultants, P.C.

                                               OPINION

       James R. Vandergriff (“Father”) and Samantha J. Vandergriff (“Mother”) are the
parents of a daughter, Catherine, who was born with severe disabilities allegedly as the
result of the negligence of ParkRidge East Hospital and several healthcare providers
(collectively “Defendants”).1

      On March 10, 2004, while Mother was pregnant with Catherine, Mother was
admitted to ParkRidge East Hospital (“ParkRidge”) after problems developed with her
pregnancy. Mother remained at ParkRidge from March 10-17, 2004. The tests conducted
on Mother during that time revealed that she was suffering from an infection. Although

        1
         Collectively, Mother, Father, and Catherine will be referred to as “Plaintiffs.” There are several
defendants in this case. Briefly, their relationships to the litigation are as follows: Mother was under the
care of Dr. Richard Bowers, Dr. Elizabeth Bowers, and Chattanooga Women’s Specialist during her
pregnancy in 2003 and 2004. She was also treated by Dr. Shawn Stallings and Regional Obstetrical
Consultants because her pregnancy was high risk. ParkRidge East Hospital treated Mother on two
relevant occasions: one from March 10-17, 2004, and the second from March 21-24, 2004. Dr. R.
Bowers, Dr. E. Bowers, and Dr. Stallings were also involved in Mother’s treatment at ParkRidge.



                                                   -2-
the discharge summary from this hospital stay indicates that Mother was treated for this
infection, Plaintiffs contend that the discharge summary was intentionally falsified and
that Mother did not actually receive the proper treatment.

       On March 21, 2004, Mother was readmitted to ParkRidge. Catherine was born
very prematurely later that day. Catherine remained in the NICU ward for more than two
months until she was discharged on June 10, 2004. It is undisputed that Catherine was
born with brain damage and will be severely disabled for the rest of her life.

       Ten years later, on August 25, 2014, a pro se complaint was filed by “James R.
Vandergriff, individually, as (father and legal guardian) of Catherine E. Vandergriff and
Samantha J. Vandergriff, individually, as (mother and legal guardian) of Catherine E.
Vandergriff . . . .” The complaint, which asserted separate claims on behalf of the parents
and Catherine, alleged that Catherine’s injuries were the result of Defendants’ failure to
treat Mother’s infection during her March 10-17 hospital stay.2 Mother and Father signed
the complaint, but the complaint was not signed by an attorney.

       As stated in the complaint, Plaintiffs attributed the delay in filing the lawsuit to
fraudulent concealment of the medical treatment Mother did and did not receive during
her March 10-17 hospital stay. In relevant part, the complaint states:

        34. We never knew about the severe infection that was present at our
        daughter’s birth because the truth was hidden from us. At the time, were
        [sic] not aware of the severe womb infection because the information was
        never documented into the medical records we received.

        35. In 2012, we learned about the severe womb infection. We obtained
        medical records for the second time, which the second set of medical
        records had a placenta pathology report not previously disclosed to either
        Samantha J. Vandergriff nor [sic] myself, James Vandergriff.

        36. The placenta pathology report states (Acute Chorioamnioitis Funitis and
        villous necrosis). This is a very severe womb infection which was
        longstanding because Samantha J. Vandergriff was left untreated during her
        March 10, 2004 to March 17, 2004 [stay] at ParkRidge East Hospital.




        2
          When a tort is committed against a child, two separate causes of action arise: a cause of action
in favor of the parents for loss of service and medical expenses and a separate cause of action in favor of
the child for the elements of damage to her, such as pain and suffering. Dudley v. Phillips, 405 S.W.2d
468, 469 (Tenn. 1966) (quoting 42 A.L.R. 722, 724).


                                                   -3-
       Defendants responded to the complaint by filing motions to dismiss. They
contended that the parents’ individual claims were barred by the statute of limitations
because they had been brought more than one year after Plaintiffs discovered the alleged
injury. See Tenn. Code Ann. § 29-26-116(a)(1)-(2) (2014). Defendants also contended
that Catherine’s separate claims were barred by the three-year statute of repose applicable
to health care liability actions. See Tenn. Code Ann. § 29-26-116(a)(3) (2014). Plaintiffs
did not file any responses to the motions to dismiss, but Father and Mother did attend the
hearing on the motions.

       On October 14, 2014, the trial court entered an order dismissing all claims. The
court concluded that the parents’ claims were barred by the statute of limitations. The
court noted that Paragraph 35 of the complaint established that the parents learned of the
infection that caused Catherine’s injury on or before December 31, 2012; therefore, the
one year limitation period would have begun on that date at the latest. Assuming Mother
and Father filed the required pretrial notices on the last possible date, December 31,
2013, the statute of limitations would have been extended to April 30, 2014.3 See Tenn.
Code Ann. § 29-26-101(c) (2014). The complaint was not filed until August 2014;
therefore, the parents’ individual claims were time barred.

        With regard to Catherine’s claims, the trial court concluded that they were time-
barred by the statute of repose. The trial court reasoned that, although fraudulent
concealment tolled the statute of repose, any fraudulent concealment was uncovered on
or before December 31, 2012 when her parents learned of the infection that caused
Catherine’s injuries.4 Accordingly, Catherine’s claims had to be filed no later than April
30, 2014, the deadline for filing her parents’ claims. See Tenn. Code Ann.
§ 29-26-116(a)(3). Because the complaint was filed more than one year after the
fraudulent concealment of the claims was discovered, Catherine’s claims were barred by
the statute of repose.

       Plaintiffs filed a timely notice of appeal. On appeal, Plaintiffs contend that it was
error to dismiss the parents’ claims as barred by the statute of limitations and to dismiss
Catherine’s claims as barred by the statute of repose.



        3
         When a plaintiff provides proper statutory notice, the statute of limitations is extended for 120
days from the date it would have expired. See Tenn. Code Ann. § 29-26-101(c) (2014).
        4
          Because Catherine was a minor when her claim accrued, the statute of limitations was tolled
until she reached age 18. See Tenn. Code Ann. § 28-1-106 (2014). However, Catherine’s claims were
filed in August 2014, and “the plaintiff’s minority does not toll the [health care liability action] statute of
repose” for claims filed after December 9, 2005. See Calaway v. Schucker, 193 S.W.3d 509, 518 (Tenn.
2005), as amended on reh’g in part (Feb. 21, 2006).


                                                     -4-
                                          ANALYSIS

                                     I. PRO SE LITIGANTS

         We are mindful of the fact that Father and Mother are representing themselves in
this litigation although they have no legal training and little familiarity with the judicial
system. Parties who represent themselves (pro se litigants) are entitled to fair and equal
treatment by the courts; nevertheless, “the courts must be mindful of the boundary
between fairness to a pro se litigant and unfairness to the pro se litigant's adversary.”
Young v. Barrow, 130 S.W.3d 59, 62 (Tenn. Ct. App. 2003). Therefore, courts may “not
excuse pro se litigants from complying with the same substantive and procedural rules
that represented parties are expected to observe.” Id. As we have explained:

       The courts give pro se litigants who are untrained in the law a certain
       amount of leeway in drafting their pleadings and briefs. Accordingly, we
       measure the papers prepared by pro se litigants using standards that are less
       stringent than those applied to papers prepared by lawyers.

       Pro se litigants should not be permitted to shift the burden of the litigation
       to the courts or to their adversaries. They are, however, entitled to at least
       the same liberality of construction of their pleadings that Tenn. R. Civ. P. 7,
       8.05, and 8.06 provide to other litigants.

Id. at 63 (internal citations omitted).

                     II. TENNESSEE RULES OF APPELLATE PROCEDURE

       Before discussing the substance of Plaintiffs’ arguments, it is important to
acknowledge that we may only consider “those facts established by the evidence in the
trial court and set forth in the record and any additional facts that may be judicially
noticed or are considered pursuant to Rule 14.” See Tenn. R. App. P. 13 (emphasis
added). Plaintiffs rely, in part, on several documents Plaintiffs filed with the circuit court
clerk after the trial court dismissed their claims. These documents include medical
records and letters to Plaintiffs from attorneys they consulted prior to filing the
complaint. Because these documents were never admitted into evidence in the trial court,
we may only consider them if they are subject to judicial notice or fall under Rule 14. See
id.

       The statements contained in these documents are not properly the subject of
“judicial notice.” In order for a fact to be judicially noticed, it must be “one not subject to
reasonable dispute” and either “generally known within the territorial jurisdiction of the
trial court” or “capable of accurate and ready determination by resort to sources
whose accuracy cannot reasonably be questioned.” Tenn. R. Evid. 201. Judicial
                                             -5-
notice is “an acceptance by a court, for purposes of convenience and without
requiring . . . proof, of a well-known and indisputable fact.” Mayfield v. Mayfield, 395
S.W.3d 108, 119 (Tenn. 2012). Information about Mother’s medical treatment and letters
from attorneys do not fit this description.

       Furthermore, we cannot consider these documents under Tenn. R. App. P. 14.
Rule 14 permits this court, at its discretion, to consider “facts concerning the action that
occurred after judgment.” Tenn. R. App. P. 14(a) (emphasis added). These documents
concern events that occurred before this lawsuit was filed and not facts that occurred after
the trial court issued the order dismissing Plaintiffs’ claims. Accordingly, we cannot
consider them on appeal. See Tenn. R. App. P. 13(c); Box v. Gardner, No. W2012-
00631-COA-R3-CV, 2012 WL 6697579, at *5 n.6 (Tenn. Ct. App. Dec. 26, 2012).

       We now turn to the substance of the issues Plaintiffs have raised on appeal.

                                III. CATHERINE’S CLAIMS

        In the complaint, Mother and Father asserted claims on behalf of Catherine, as her
parents and legal guardians, in addition to the individual claims they asserted themselves.
The complaint, which was prepared by Father, was signed by Mother and Father but not
by a licensed attorney. Indeed, none of the pleadings filed by Plaintiffs were signed by an
attorney. Father additionally served as Catherine’s advocate in the trial court proceedings
and during oral argument in this court.

       We note with great respect and admiration Father’s love and devotion for his
daughter, Catherine, and for Mother, which are evident from his tireless efforts to
advocate on his daughter’s behalf in these proceedings. Unfortunately, as we explain
below, because neither Father nor Mother is a licensed attorney, they were not authorized
to assert Catherine’s separate claims unless a licensed attorney also signed the complaint.

       Under Tennessee law, any person may conduct and manage his or her own case in
any court of this state. Tenn. Code Ann. § 23-1-109. Therefore, Mother is authorized to
represent herself, and Father is authorized to represent himself. However, the right of
self-representation only allows an individual to conduct and manage “the person’s own
case in any court of this state.” See id. (emphasis added). Accordingly, pro se litigants
may not litigate on behalf of another individual.

       We are mindful of the fact that parents may “sue or defend” a suit on behalf of
their minor children in certain circumstances, see Tenn. R. Civ. P. 17.03; however,
parents may not file a court pleading on behalf of a child, i.e., a complaint, unless it is
signed by a licensed attorney. In relevant part, Rule 17.03 provides:



                                            -6-
       Whenever an infant or incompetent person has a representative, such as a
       general guardian, conservator, or other like fiduciary, the representative
       may sue or defend on behalf of the infant or incompetent person. If an
       infant or incompetent person does not have a duly appointed representative,
       or if justice requires, he or she may sue by next friend.

Id.

       Rule 17.03 exists because minors cannot maintain lawsuits in their own names.
See Busby v. Massey, 686 S.W.2d 60, 62 (Tenn. 1984). “Minors cannot act for
themselves in contracting with counsel and otherwise making provisions to institute
[lawsuits].” Id. at 63. In such situations, they must rely on others to act for them. Id.; see
Holley v. Blackett, No. W2011-02115-COA-R3-CV, 2012 WL 4799053, at *4 (Tenn. Ct.
App. Oct. 10, 2012). Accordingly, Rule 17.03 permits minors to sue “by next friend”
even when a guardian has not been officially appointed to represent them. See Tenn. R.
Civ. P. 17.03.

       A “next friend” is “[a] person who appears in a lawsuit to act for the benefit of an
incompetent or minor plaintiff, but who is not a party to the lawsuit and is not appointed
as a guardian.” Black’s Law Dictionary 897 (9th ed. 2010); see March v. Levine, No. 01-
A-01-9708-PB00437, 1999 WL 140760, at *3 (Tenn. Ct. App. May 17, 1999) (“A next
friend is someone who is capable of protecting the interests of the person under the legal
disability, who will be liable for the costs, and against whom the court can make and
enforce its orders.”). Although parents may raise the claims of their children, their status
as “next friends” does not make them “technically [or] substantially a party” to the
minor’s claims. See Holley, 2012 WL 4799053, at *4 (quoting Williams v. Gaither, 101
S.W. 917, 918 (Tenn. 1918)).

       While Rule 17.03 allows a parent to “sue” on behalf of a minor child, the rule does
not authorize a parent to practice law while acting on behalf of the child. To the contrary,
only licensed attorneys may engage in the “practice of law” in Tennessee. Tenn. Sup. Ct.
R. 7, §1.01; see Tenn. Code Ann. § 23-3-103(a). In Tennessee, the practice of law
“relates to the rendition of services for others that call for the professional judgment of a
lawyer.” Petition of Burson, 909 S.W.2d 768, 775 (Tenn. 1995) (quoting Tenn. Sup. Ct.
R. 8, EC 3-5). Under this standard, the Supreme Court has held that preparing and filing a
complaint on behalf of another constitutes the practice of law because it requires a
lawyer’s professional judgment. See Old Hickory Engineering and Mach. Co., Inc. v.
Henry, 937 S.W.2d 782, 786 (Tenn. 1996). Similarly, according to the Tennessee Code,
the practice of law includes “the appearance as an advocate in a representative capacity or
the drawing of papers, pleadings or documents or the performance of any act in such
capacity in connection with proceedings pending or prospective before any court . . . .”



                                            -7-
Tenn. Code Ann. § 23-3-101(3).5 Based on these definitions, it is clear that Mother and
Father must be licensed to practice law in order to file a complaint on Catherine’s behalf
and to appear as advocates for her in court.

        Federal law is consistent with Tennessee on the subject of a parent asserting
claims of a minor child. Individuals have the right to represent themselves in federal
court. See 28 U.S.C. § 1654. Additionally, the Federal Rules of Civil Procedure allow
representatives to raise the claims of minor children. See Fed. R. Civ. P. 17(c)(2) (“A
minor or an incompetent person who does not have a duly appointed representative may
sue by a next friend or by a guardian ad litem.”). However, federal courts have
interpreted these provisions to prohibit parents from representing their children pro se.
“[P]arents cannot appear pro se on behalf of their minor children because a minor’s
personal cause of action is her own and does not belong to her parent or representative.”
See Shepherd v. Wellman, 313 F.3d 963, 970-71 (6th Cir. 2002); accord Myers v.
Loudoun Cnty. Pub. Sch., 418 F.3d 395, 400-01 (4th Cir. 2005) (“We therefore join the
vast majority of our sister circuits in holding that non-attorney parents generally may not
litigate the claims of their minor children in federal court.”). Other federal courts have
expressly stated that “a parent who is not an attorney must be represented by legal
counsel in bringing an action on behalf of his or her minor children.” Osei-Afriyie by
Osei-Afrieyie v. Med. Coll. of Pa., 937 F.2d 876, 878 (3d Cir. 1991); see Cheung v. Youth
Orchestra Found. of Buffalo, Inc., 906 F.2d 59, 61 (2d Cir. 1990); see also Meeker v.
Kercher, 782 F.2d 153, 154 (10th Cir. 1986) (per curiam) (“We hold that under Fed. R.
Civ. P. 17(c) and 28 U.S.C. § 1654, a minor child cannot bring suit through a parent
acting as next friend if the parent is not represented by an attorney.”).

       Neither Mother nor Father is a licensed attorney. Therefore, they may not file a
pro se complaint that asserts claims on Catherine’s behalf or appear in court as a legal
advocate for her. See Old Hickory Engineering, 937 S.W.2d at 786; Petition of Burson,
909 S.W.2d at 776-77; see also Tenn. Code Ann. §§ 23-3-101, -103. Furthermore, no
licensed attorney signed the complaint in which Father and Mother attempted to assert
claims on behalf of Catherine. Because the complaint was not signed by a licensed
attorney, Mother and Father’s well-meaning attempt to assert Catherine’s claims in the


        5
         The Supreme Court of Tennessee “possesses the sole and exclusive authority to regulate the
practice of law and define the unauthorized practice of law.” Tennessee Envtl. Council, Inc. v. Tennessee
Water Quality Control Bd., 254 S.W.3d 396, 403 (Tenn. Ct. App. 2007) (citing Petition of Burson, 909
S.W.2d 768, 773) (Tenn. 1995)). Accordingly, the Supreme Court is not bound by the General
Assembly’s definition of the “practice of law” in Tenn. Code Ann. § 23-3-101. However, the Supreme
Court has essentially adopted this definition with the caveat that the acts enumerated in it constitue the
practice of law only if they require the professional judgment of a lawyer. See Petition of Burson, 909
S.W.2d at 776-77; see also Tenn. Op. Att'y Gen. No. 94-101 (Sept. 9, 1994).



                                                  -8-
complaint was not effective.6 Proceedings in a suit by a person not entitled to practice law
are a nullity, and “[a]n attempted appeal of a person not licensed to practice law,
purporting to represent another, will be dismissed.” Bivins v. Hosp. Corp. of Am., 910
S.W.2d 441, 447 (Tenn. Ct. App. 1995) (citing 7 C.J.S. Attorney and Client § 31, p. 869,
n.13 & n.20); see Investors Grp., I Ltd. v. Knoxville's Cmty. Dev. Corp., No. E1999-
00395-COA-R3-CV, 2001 WL 839837, at *2 (Tenn. Ct. App. July 25, 2001) (holding
that a complaint filed on behalf of a limited partnership and signed only by a non-
attorney was “void”).

       Something that is “void” has no legal effect. See Black’s Law Dictionary 1349
(9th ed. 2010). Another legal dictionary defines “void” as “absolutely null,” going on to
describe an order that is “void ab initio” as “that which is void in the beginning, [which]
cannot be cured by waiver, acquiescence or lapse of time.” Bryan A. Garner, A Modern
Legal Dictionary 920 (2d ed. 2005).

       Because the complaint was void as to Catherine’s claims, it was insufficient to
commence an action on her behalf, and neither Catherine nor her claims were properly
before the trial court. See Tenn. R. Civ. P. 3 (proving that every civil action commences
when a complaint is filed). This is of the utmost significance because a decree is “void as
to any person shown by the record itself not to have been before the Court in person or by
representation.” See Gentry v. Gentry, 924 S.W.2d 678, 680 (Tenn. 1996) (emphasis
added); see also Tate v. Ault, 771 S.W.2d 416, 419 (Tenn. Ct. App. 1988) (noting that a
judgment is void if the court rendering it lacked jurisdiction over the subject matter or the
parties).

       For the reasons stated above, neither Catherine nor her claims were before the trial
court; therefore, the trial court’s judgment is void to the extent it ruled on the merits of
Catherine’s purported claims.7 See Gentry, 924 S.W.2d at 680.

      We shall now turn our attention to the individual claims asserted by Father and
Mother.



        6
            This does not affect the validity of the claims Mother and Father asserted on their own behalf.
        7
          Neither of the parties raised the issue of whether Catherine or her representatives were properly
before the trial court. Nevertheless, neither Catherine nor her representatives were properly before the
trial court, and a decree is void as to any person not to have been before the court “in person, or by
representation,” Gentry, 924 S.W.2d at 680, and we may not affirm a void judgment for the void
judgment never came into existence. See Inman v. Raymer, No. E2003-01964-COA-R3-CV, 2004 WL
948386, at *2 (Tenn. Ct. App. May 4, 2004) (“A void decree is in the same plight as though it never
existed.”) (quoting West v. Jackson, 186 S.W.2d 915, 917 (Tenn. Ct. App. 1944)).


                                                     -9-
                         IV. FATHER AND MOTHER’S INDIVIDUAL CLAIMS

        Defendants filed Tenn. R. Civ. P. 12.02(6) motions to dismiss the parents’ claims
on numerous grounds including the one-year statute of limitations applicable to health
care liability claims, codified at Tenn. Code Ann. § 29-26-116(a)(1). Consistent with a
decision on a Rule 12 motion to dismiss, the trial court’s memorandum opinion and order
states: “In deciding these motions, the Court takes all the Plaintiffs’ allegations in their
complaint as being true.” Following its analysis of the complaint, the court dismissed
“any claims” by Father and Mother against Defendants.8 Father and Mother contend that
the trial court erred by dismissing their individual claims as barred by the statute of
limitations. We find no error with the trial court’s ruling as it pertains to the parents’
claims.

       When adjudicating a Tenn. R. Civ. P. 12.02(6) motion to dismiss, courts “must
construe the complaint liberally, presuming all factual allegations to be true and giving
the plaintiff the benefit of all reasonable inferences.” Redwing v. Catholic Bishop for
Diocese of Memphis, 363 S.W.3d 436, 456 (Tenn. 2012) (quoting Webb v. Nashville Area
Habitat for Humanity, Inc., 346 S.W.3d 422, 426 (Tenn. 2011)). We review the trial
court’s decision on a motion to dismiss de novo without a presumption of correctness.
Phillips v. Montgomery Cnty., 442 S.W.3d 233, 238 (Tenn. 2014). Similarly, the
determination that a suit should be dismissed based on the statute of limitations presents a
question of law, which we review de novo with no presumption of correctness. Redwing,
363 S.W.3d at 456.

        The parents’ claims were dismissed as time barred by the one-year statute of
limitations applicable to health care liability claims. See Tenn. Code Ann.
§ 29-26-116(a)(1). In Tennessee, health care liability actions are “any civil action . . .
alleging that a health care provider or providers have caused an injury related to the

        8
          Defendants filed motions to dismiss; however, the trial court’s order states: “Summary judgment
is issued as to any claims by [Father] and [Mother] against these Defendants based on the expiration of
the statute of limitations.” Converting a motion to dismiss under Rule 12.02(6) into a motion for summary
judgment is appropriate when “matters outside the pleading are presented to and not excluded by the
[trial] court . . . .” Tenn. R. Civ. P. 12.02. The trial court’s order does not state what “matters outside the
pleading” it considered, and our review of the record has not revealed anything the trial court could have
considered that is relevant to the statute of limitations issue other than the complaint. Moreover,
consistent with a decision on a Rule 12 motion to dismiss, the order states that the trial court presumed
that all the allegations in the complaint were true. See Trau-Med of Am., Inc. v. Allstate Ins. Co., 71
S.W.3d 691, 696 (Tenn. 2002); see also Wallace v. National Bank of Commerce, 938 S.W.2d 684, 689
(Tenn. 1996) (noting that courts are not required to presume that the allegations in the complaint were
true in the context of a motion for summary judgment). Because it is clear that the trial court did not
consider any matters outside of the pleadings when it dismissed Plaintiffs’ complaint, we will review the
trial court’s decision as a decision to grant a motion to dismiss rather than a motion for summary
judgment.


                                                    - 10 -
provision of, or failure to provide, health care services to a person, regardless of the
theory of liability on which the action is based.” Tenn. Code Ann. § 29-26-101(a)(1)
(2014). There is no dispute that Defendants are “health care providers” as defined by
statute and that all of Plaintiffs’ claims relate to “the provision of, or failure to provide,
health care services to a person . . . .” See Tenn. Code Ann. § 29-26-101(a)(2) (2014).
Accordingly, Plaintiffs’ claims had to be filed within one year from the time their cause
of action accrued. See Tenn. Code Ann. § 29-26-116(a)(1).

       Defenses based on the statute of limitations require us to consider both the accrual
of the cause of action and the applicability of any tolling doctrines. See Redwing, 363
S.W.3d at 456. Generally, a cause of action for an injury accrues when the injury occurs.
See Cherry v. Williams, 36 S.W.3d 78, 83 (Tenn. Ct. App. 2000). However, when the
alleged injury in a health care liability cause of action “is not discovered within [the one-
year statute of limitations period], the period of limitation shall be one (1) year from the
date of such discovery.” Tenn. Code Ann. § 29-26-116(a)(2). Plaintiffs contend that they
did not discover their cause of action until 2013 because Defendants fraudulently
concealed their failure to treat Mother’s infection during her March 10-17 hospital stay.

        By making this allegation, Plaintiffs have invoked the discovery rule. Under the
discovery rule, a health care liability 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.” Sherrill v. Souder, 325 S.W.3d 584, 595
(Tenn. 2010); see Burk v. RHA/Sullivan, 220 S.W.3d 896, 900-01 (Tenn. Ct. App. 2006).
The discovery rule does not toll the statute of limitations until plaintiffs actually know
that they have a cause of action. Pero's Steak & Spaghetti House v. Lee, 90 S.W.3d 614,
621 (Tenn. 2002). Instead, plaintiffs are “deemed to have discovered the right of action
when [they] become[] aware of facts sufficient to put a reasonable person on notice that
he or she has suffered an injury as a result of the defendant's wrongful conduct.” Id.
(citing Shadrick v. Coker, 963 S.W.2d 726, 733 (Tenn. 1998)). Thus, the discovery rule
does not allow plaintiffs to delay filing their complaints until they know the specific type
of legal claim they have or all the facts that affect the merits of a claim. Redwing, 363
S.W.3d at 459. “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 [health care liability] cause of action.” Sherrill, 325 S.W.3d at 595.

        Additionally, Plaintiffs’ allegations have invoked the doctrine of fraudulent
concealment, a tolling doctrine closely related to the discovery rule. See Fahrner v. SW
Mfg., Inc., 48 S.W.3d 141, 145 (Tenn. 2001) (“In a discovery rule case, the plaintiff may
claim that the defendant intentionally prevented him from discovering his injury. Where
that claim is proved true, the doctrine of fraudulent concealment applies.”) (internal
quotation marks omitted). The doctrine of fraudulent concealment tolls the statute of
limitations when the defendant purposefully engages in conduct intended to conceal the

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plaintiff’s injury or the identity of the person who caused the plaintiff’s injury. See
Redwing, 363 S.W.3d at 462. Like the discovery rule, the effects of the doctrine of
fraudulent concealment cease when the plaintiff “discovers or should have discovered the
defendant's fraudulent concealment or sufficient facts to put the plaintiff on actual or
inquiry notice of his or her claim . . . .” Id. at 463 (emphasis added). Therefore, under
both the discovery rule and the doctrine of fraudulent concealment, Plaintiffs were
required to file their lawsuit within one year from the time they had sufficient facts to
provide them with actual or constructive notice of their claims. See id.; Pero’s, 90
S.W.3d at 621; Tenn. Code Ann. § 29-26-116(a)(2)-(3).

      Here, it is clear that Plaintiffs had actual or constructive knowledge of their claims
in 2012 because their complaint states:

       35. In 2012, we learned about the severe womb infection. We obtained
       medical records for the second time, which the second set of medical
       records had a placenta pathology report not previously disclosed to either
       Samantha J. Vandergriff nor [sic] myself, James Vandergriff.

       36. The placenta pathology report states (Acute Chorioamnioitis Funitis and
       villous necrosis). This is a very severe womb infection which was
       longstanding because Samantha J. Vandergriff was left untreated during her
       March 10, 2004 to March 17, 2004 [stay] at ParkRidge East Hospital.

        These paragraphs establish that Plaintiffs knew sufficient facts to put them on
notice that they had been injured as a result of Defendants’ wrongful conduct in 2012.
See Redwing, 363 S.W.3d at 459. According to the complaint, by 2012 Plaintiffs knew
that an injury had occurred because of an infection that existed as a result of Defendants’
failure to properly treat Mother. Plaintiffs may not have known the extent of their injuries
or of Defendants’ wrongful conduct, and Mother’s medical records may not have been
reviewed by an attorney or medical expert, but the absence of these things does not allow
a potential plaintiff to delay filing suit. See id.; Sherrill, 325 S.W.3d at 595. Based on the
complaint, the facts that Plaintiffs knew in 2012 were sufficient to provide them with
notice that they were injured by Defendants’ negligence.

       Plaintiffs contend that their cause of action did not accrue until May 2013 when
they received additional medical records and a letter from an attorney opining that
Defendants were negligent. According to Plaintiffs, although the placenta pathology
report they obtained in 2012 revealed the existence of the infection that caused
Catherine’s disabilities, it did not indicate that this infection was present because
Defendants failed to treat Mother during her March 10-17 hospital stay. Plaintiffs argue
that their claims could not have accrued until they learned that the infection existed
because of Defendants’ negligence. The complaint does not contain any factual


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allegations that support this argument. It does not allege that Plaintiffs received any new
medical records in 2013 or that Plaintiffs discovered any new facts after 2012.

        The foregoing notwithstanding, assuming that the only new fact discovered in
2012 was that a previously-undisclosed infection was present when Catherine was born,
this discovery, in conjunction with the other facts previously known to Plaintiffs in 2012,
was sufficient to “put a reasonable person on notice that he or she has suffered an injury
as a result of the defendant’s wrongful conduct.” Pero’s, 90 S.W.3d at 621; see Sherrill,
325 S.W.3d at 595. Specifically, in 2012 Plaintiffs knew: (1) that Mother had been
hospitalized twice at ParkRidge after experiencing similar symptoms; (2) that Catherine
had been born with brain damage during Mother’s second hospitalization; (3) that Mother
was being treated for an infection of unknown origin when Catherine was born; and (4)
that the placenta pathology report indicated that the placenta was infected. Accordingly,
the facts known to Plaintiffs in 2012 were sufficient to put them on notice that they had
suffered an injury as a result of Defendant’s wrongful conduct.

        Thus, Plaintiffs discovered their cause of action and uncovered any fraudulent
concealment in 2012, and the statute of limitations began to run on December 31, 2012 at
the latest. See Redwing, 363 S.W.3d at 459, 463. Assuming, as the trial court did, that
Plaintiffs timely served Defendants with notice of intent to sue on December 31, 2013,
the statute of limitations would have been extended to April 2014. The complaint was not
filed until August 2014, which was after the limitation period, as extended, had expired.
Accordingly, we affirm the trial court’s decision to dismiss the claims of Mother and
Father as barred by the statute of limitations. See Tenn. Code Ann. § 29-26-116(a)(1)-(2).

                                     IN CONCLUSION

        Because neither Catherine nor her representatives were properly before the trial
court, and a decree is void as to any person not to have been before the court in person, or
by representation, see Gentry, 924 S.W.2d at 680, the trial court’s judgment, to the extent
it ruled on the merits of Catherine’s purported claims, is vacated and this matter is
remanded for entry of an order consistent with the foregoing. We affirm the judgment of
the trial court in all other respects.

     Costs of appeal are assessed against James R. Vandergriff and Samantha J.
Vandergriff.


                                                     ______________________________
                                                     FRANK G. CLEMENT, JR., JUDGE




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