                 IN THE COURT OF APPEALS OF TENNESSEE
                              AT JACKSON
                      ASSIGNED ON BRIEFS OCTOBER 19, 2004

                      EDDIE PUGH v. STATE OF TENNESSEE

                   Direct Appeal from the Tennessee Claims Commisison
                  No. 20-301-174   Nancy C. Miller-Herron, Commissioner



                   No. W2004-01609-COA-R3-CV - Filed February 3, 2005


In 2003, a prisoner in the custody of the Tennessee Department of Correction filed a claim in the
Tennessee Claims Commission against the State of Tennessee for medical malpractice. In 2001, the
prisoner underwent surgery to install a colostomy due to the alleged negligence of the prison medical
staff in improperly diagnosing his condition. The Commissioner granted the State’s motion for
summary judgment, finding the statute of limitations barred the prisoner’s claim. Since the prisoner
was aware that the State’s negligence caused his injury at the time of his surgery, the discovery rule
does not toll the running of the applicable statute of limitations. We affirm.


  Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Claims Commission Affirmed

ALAN E. HIGHERS, J., delivered the opinion of the court, in which DAVID R. FARMER , J., and HOLLY
M. KIRBY , J., joined.

Eddie Pugh, Tiptonville, TN, pro se

Paul G. Summers, Attorney General and Reporter, Michael E. Moore, Solicitor General, John H.
Sinclair, Jr., Senior Counsel, Nashville, TN, for Appellee
                                        MEMORANDUM OPINION1

                                                           I.
                         FACTUAL BACKGROUND AND PROCEDURAL HISTORY

        Eddie Pugh (“Mr. Pugh” or “Appellant”) is currently an inmate in the custody of the
Tennessee Department of Correction (“TDOC”) housed at Northwest Correctional Complex
(“NWCC”) in Tiptonville, Tennessee. On either September 6 or 7, 2001, Mr. Pugh, while working
in a prison paint class, began to feel discomfort in his stomach. On September 7, 2001, Mr. Pugh
visited the prison clinic where prison personnel diagnosed him with constipation and gave him a
laxative. Mr. Pugh returned to his housing unit to lie down, but he had to return to the clinic later
that same day when he became ill again.

       Around midnight on September 8, 2001, after Mr. Pugh had vomited blood, the prison staff
summoned an ambulance to transport Mr. Pugh to Baptist Memorial Hospital in Union City,
Tennessee. At the hospital, doctors performed a CT scan on Mr. Pugh and diagnosed him with
constipation. The doctors released Mr. Pugh for his return to NWCC.

        At some point, Mr. Pugh’s condition worsened. On September 15, 2001, prison officials
transported Mr. Pugh back to Baptist Memorial Hospital, where he was subsequently airlifted to the
Regional Medical Center in Memphis. From September 15, 2001, until October 15, 2001, Mr. Pugh
underwent numerous surgeries to repair a herniated colon which had protruded into his chest cavity.
During the course of his treatment, doctors inserted a colostomy and conducted a surgical skin graft
on his stomach.

        On February 25, 2003, Mr. Pugh filed a pro se Claim for Medical Malpractice in the
Tennessee Claims Commission against the State of Tennessee (“State”). Mr. Pugh alleged in his
complaint that medical officials employed by TDOT were negligent in diagnosing his condition,
which resulted in a delay in his receiving proper medical care. Particularly, Mr. Pugh alleged that,
as a result of the State’s negligence, the colostomy inserted into his body is now permanent.

        The State filed a motion for summary judgment on May 14, 2004, alleging that Mr. Pugh’s
claim is barred by the statute of limitations. The State also submitted a Statement of Undisputed
Material Facts which provided, in relevant part, that “[w]hen the colostomy surgery was performed


       1
           Pursuant to Rule 10 of the Rules of the Court of Appeals of Tennessee:

                  This Court, with the concurrence of all judges participating in the case, may affirm,
                  reverse or modify the actions of the trial court by memorandum opinion when a
                  formal opinion would have no precedential value. W hen a case is decided by
                  memorandum opinion it shall be designated “M EMORANDUM OPINION”, shall
                  not be published, and shall not be cited or relied on for any reason in any unrelated
                  case.



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in September of 2001, Mr. Pugh attributed the need for surgery to negligence on the part of prison
medical staff.” On May 27, 2004, Mr. Pugh filed a response to the State’s motion, wherein he
conceded that the above stated fact “is undisputed for the purposes of ruling on the Motion for
Summary Judgment.” In addition, the State, in support of its motion, relied on Mr. Pugh’s
deposition testimony, which provides:

                Q.     When the colostomy was inserted back in September of 2001,
                did you think it was because somebody at the State had overlooked
                something or had been negligent?
                A.     Yes.

On June 10, 2004, Commissioner Nancy Miller-Herron entered an order dismissing Mr. Pugh’s
claim as being barred by the applicable statute of limitations.

         Mr. Pugh has filed a timely pro se notice of appeal to this Court alleging the trial court erred
in failing to apply the “discovery rule” to his claim. For the reasons set forth herein, we affirm the
Commissioner’s ruling.


                                              II.
                                       STANDARD OF REVIEW

       In reviewing the Commissioner’s decision to grant the State’s motion for summary judgment,
we are bound by the following standard of review:

                Summary judgment is appropriate when “there is no genuine issue as
                to any material fact and . . . the moving party is entitled to judgment
                as a matter of law.” Tenn. R. Civ. P. 56.04. A ruling on a motion for
                summary judgment involves only questions of law and not disputed
                issues of fact. Owner-Operator Indep. Drivers Ass’n v. Concord
                EFS, Inc., 59 S.W.3d 63, 68 (Tenn. 2001). Accordingly, the standard
                for reviewing a grant of summary judgment is de novo with no
                presumption of correctness as to the trial court’s findings. See
                Webber v. State Farm Mut. Auto. Ins. Co., 49 S.W.3d 265, 269 (Tenn.
                2001). The evidence must be viewed “in the light most favorable to
                the nonmoving party,” and all reasonable inferences must be drawn
                in the nonmoving party’s favor. Staples v. CBL Assocs., 15 S.W.3d
                83, 89 (Tenn. 2000).

Shelburne v. Frontier Health, 126 S.W.3d 838, 841 (Tenn. 2003); see also Kelley v. Middle Tenn.
Emergency Physicians, P.C., 133 S.W.3d 587, 591 (Tenn. 2004).




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                                              III.
                                        LAW AND ANALYSIS

         On appeal, Mr. Pugh claims that the “discovery rule” applies to his case to toll the running
of the statute of limitations. Accordingly, Mr. Pugh claims that the statute of limitations did not
begin to run against his claim until prison staff notified him in January of 2003 that the colostomy
would be permanent, at which point he learned of the State’s negligence. He claims that the prison
medical staff failed to inform him “about the true nature and severity of his condition,” therefore,
as a prisoner, he could not seek a second opinion and could do nothing to determine the extent of his
injury any sooner.

        Claims filed in the Tennessee Claims Commission are “barred unless the notice is given
within the time provided by statutes of limitations applicable by the courts for similar occurrences
from which the claim arises.” Tenn. Code Ann. § 9-8-402(b) (2003). An action for medical
malpractice “shall be commenced within one (1) year after the cause of action accrued.” Tenn. Code
Ann. § 28-3-104(a) (2003); see also Tenn. Code Ann. § 29-26-116(a)(1) (“The statute of limitations
in malpractice actions shall be one (1) year as set forth in § 28-3-104.”).

       In Teeters v. Currey, 518 S.W.2d 512 (Tenn. 1974), our supreme court adopted the
“discovery rule” and applied it to medical malpractice cases, stating:

                       We adopt as the rule of this jurisdiction the principle that in
               those classes of cases where medical malpractice is asserted to have
               occurred through the negligent performance of surgical procedures,
               the cause of action accrues and the statute of limitations commences
               to run when the patient discovers, or in the exercise of reasonable
               care and diligence for his own health and welfare, should have
               discovered the resulting injury.

Teeters, 518 S.W.2d at 517. The legislature codified the doctrine in section 29-26-116 of the
Tennessee Code, which provides: “In the event the alleged injury is not discovered within such one
(1) year period, the period of limitation shall be one (1) year from the date of such discovery.” Tenn.
Code Ann. § 29-26-116(a)(2) (2003); see also Shadrick v. Coker, 963 S.W.2d 726, 733 (Tenn.
1998).

       However, as pointed out by Justice Harbison in his concurring opinion in Teeters:

               [T]he rule applies only in cases where the plaintiff does not discover
               and reasonably could not be expected to discover that he has a right
               of action. It does not, in my opinion, permit a plaintiff to wait until
               he knows of all the injurious effects or consequences of a tortious act.
               See Hudson v. Shoulders, 164 Tenn. 70, 72, 45 S.W.2d 1072 (1932).
               The statute is tolled only during the period when the plaintiff has no


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               knowledge at all that a wrong has occurred, and, as a reasonable
               person, is not put on inquiry.

Teeters, 518 S.W.2d at 518 (Harbison, J., concurring); see also Woods v. Sherwin-Williams Co., 666
S.W.2d 77, 80 (Tenn. Ct. App. 1983). “The plaintiff may not . . . delay filing suit until all the
injurious effects and consequences of the alleged wrong are actually known to the plaintiff.”
Shadrick, 963 S.W.2d at 733.

               It is not required that the plaintiff actually know that the injury
               constitutes a breach of the appropriate legal standard in order to
               discover that he has a “right of action”; the plaintiff is deemed to have
               discovered the right of action if he is aware of facts sufficient to put
               a reasonable person on notice that he has suffered an injury as a result
               of wrongful conduct.

Roe v. Jefferson, 875 S.W.2d 653, 657 (Tenn. 1994).

        Mr. Pugh contends that the “discovery rule” applies in this case because he did not learn “the
true nature and severity of his condition” in September or October of 2001. The above cited authority
makes clear that this is an insufficient reason to toll the running of the applicable statute of
limitations in this case. Mr. Pugh admitted in his deposition that he believed the State acted
negligently in September 2001 when the colostomy was first installed. In addition, in his response
to the State’s Statement of Undisputed Material Facts he conceded that he attributed the need for the
colostomy surgery to the state’s negligence. By October 2001 at the latest, Mr. Pugh had sufficient
facts which would put a reasonable person on notice that he had suffered an injury due to the State’s
negligence. Accordingly, the statute of limitations began to run against Mr. Pugh’s claim no later
than October 2001. He filed his complaint in February 2003, well beyond the applicable statute of
limitations. Accordingly, we affirm the Commissioner’s ruling.

                                                 IV.
                                           CONCLUSION

       For the reasons set forth herein, we affirm the ruling of the Commissioner. Costs of this
appeal are taxed against the Appellant, Eddie Pugh, for which execution may issue if necessary.




                                                       ___________________________________
                                                       ALAN E. HIGHERS, JUDGE



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