                 IN THE COURT OF APPEALS OF TENNESSEE

                                   AT KNOXVILLE                   FILED
                                                                       April 30, 1998

                                                              Cecil Crowson, Jr.
JOH N C. M cCLE LLA N, JR.,                 ) C/A NO. 03A01-9708-CV-00343 Clerk
                                                              Appellate C ourt

and wife, SANDRA McCLELLAN,                 )
                                            ) KNOX CIRCU IT
       Plaintiffs-Appellants,               )
                                            ) HON. WHEELER ROSENBALM,
v.                                          ) JUDGE
                                            )
DR. L OW ELL D. ST ANL EY, JR .,            )
DR. M.R. FLYNN and UNIVERSITY               )
OF TENNESSEE HOSPITAL,                      ) VACATED
                                            ) AND
       Defendants-Appellees.                ) REMANDED




DAVID W. BLAN KENSH IP, Kingsport, for Plaintiffs-Appellants.

EDWARD G. WHITE, II and AMY V. HOLLARS, HODGES, DOUGHTY &
CARSON , Knoxville, for Defendants-Appellees, Lowell D. Stanley, Jr., M.D., and
M.R. Flynn, M.D.




                                      O P I N IO N


                                                          Franks, J.


              In this medical malpractice action, the Trial Judge, responding to a

motion to dismiss on the ground that the action was barred by the statute of

limitations, dismissed the action. Plaintiffs have appealed.

              The complaint alleges that on or about March 28, 1994, plaintiff

underw ent an ope ration for “su boccipital cra niectomy w ith excision o f acoustic

neuroma”. The surgeon performing the operation was Dr. Lowell Dr. Stanley, Jr., and

M.R. Flynn was the anesthesiologist who assisted. The procedure was done under

general anesthetic, and lasted in excess of twelve hours, during which a tumor was
removed, and there was “the usual compromise of the facial nerve and the plaintiff

had facial palsy as a result of the surgery”. It is further averred that on regaining

consciousness, the plaintiff had immediate paralysis in the right arm and hand, and

was info rmed by D r. Stanley that the c ondition w as tempor ary and “wo uld, in fact,

resolve with time”. It is further alleged that the physician was negligent in the way

and manner the surgery was performed, that no informed consent was obtained, and

the surg ery amou nted to a battery up on plain tiff’s pe rson.

               Respon ding to the m otion to dism iss based on the running of the statute

of limitations, p laintiff filed a d etailed affid avit which states that prior to the surgery it

was not explained to him that he would have any type of arm paralysis or potential

“brachial plexus injury”. He said:

               I continued to follow up with Dr. Stanley through the year 1995 and
               well into 1996 and early 1997. On each and every occasion that I saw
               Dr. Stanley, I was assured that the problems that I had with my arm was
               tempo rary and th at it wou ld clear w ith the pa ssage o f time. In fact, I
               have never been told by Dr. Stanley that anything went wrong in my
               surgery th at cause d my inju ry.

He further stated:

               In Octob er 1996 I h ad an app ointment w ith Dr. Stanle y at his office in
               Knoxville, Tenn essee, and he did no t tell me that my hand and arm
               injury was pe rmanent, b ut rather that it co uld be and might be d ue to
               placement. He told me to come back to see him for a recheck of these
               areas in six months. . . . I could not have discovered my injury was
               permane nt, since Dr. S tanley was co nsciously misle ading me . That is
               the reason that I have not specified a date as to when I reached the
               conclusion, since it was simultaneous with the filing of the lawsuit. At
               no time w hatsoever du ring the cours e of m y treat men t with Dr . Stan ley,
               up through and including the time of the f iling of the lawsuit, did Dr.
               Stanley ever tell to me that my injury to my right arm and hand was
               permanent, and that it was caused by positioning in the operating room.

               The Trial Judge considered all of the matters appended to the pleadings

in reaching his judgm ent, and the motion thus w as treated as a motion for su mmary

judgment under Rule 12.02(6), Rules of Civil Procedure.

               Summary judgment is appropriate if there are no disputed issues of


                                               2
material fact and the defendants are entitled to a summary judgment as a matter of

law. T .R.C.P . §56.03 .

               The movant must demonstrate that there is no genuine issue of material

fact, and we review the evidence in the light most favorable to the plaintiff, drawing

all reaso nable in ferenc es in the ir favor , and dis card all c ounter vailing e videnc e, Byrd

v. Hall, 847 S.W.2d 208, 210 (Tenn. 1993). If the facts and conclusions to be drawn

from the facts are such that a reasonable person would only reach one conclusion,

summ ary judgm ent sho uld be g ranted. McClellan v. Delta Square Limited

Partnersh ip, 937 S .W.2d 891, 89 4 (Ten n. 1996 ).

               This action was filed o n Marc h 26, 199 7, and for p urposes o f this

appeal, the plaintiff’s condition did not improve during this period of time, and the

doctor repeatedly assured plaintiff that the condition was “temporary”.

               In order for plaintiffs to avoid the affirmative defense of the statute of

limitations, they are required to offer evidence to bring their action “within the

discovery rule”. The Supreme Court in Hoffm an v. H ospital A ffiliates, In c., 652

S.W.2d 341 (Tenn. 1983), held that the discovery rule applies only in cases where the

plaintiff does not discover and reasonably could not be expected to discover that he

has a cause of action. A further limitation of the Rule’s application, the Court said,

was that the statute is tolled only during the period when the plaintiff “had no

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

inquiry”. P. 344.

               Medical malpractice cases are subject to the one-year statute of

limitations and three-year statute of repose provided in Tennessee Code Annotated

§29-26-116. The discovery rule in this jurisdiction was codified in 1975 as part of the

Tenn essee C ode A nnotate d §29- 26-11 6(a)(2) . Stansbury v. Bacardi, 935 S.W.2d 671

(Tenn. 19 97). The sta tute provide s that:


                                                3
               [i]n the event the alleged injury is not discovered within the said one-
               year period, the p eriod of lim itation shall be o ne (1) year from the date
               of suc h disco very.

The Supreme Court in Stansbury interpreting this statute said the statute of limitation

commences to run when the plaintiff “discovers or reasonably should have discovered,

(1) the occasion, the manner and the means by which a breach of duty occurred that

produ ced inju ries, and (2) the id entity of th e defe ndant w ho brea ched th e duty”.

               The Supreme Court recently said in the case of Shadrick v. Coker, ____

S.W.2d ____ (filed February 17, 1998 in N ashville):

               The plaintiff may not, however, delay filing suit until all the injurious
               effects and consequences of the alleged wrong are actually known to the
               plaintiff . Wyatt v. A-Best Company, 910 S .W.2d 851, 85 5 (Ten n. 1995 ).
               Similarly, the statute of limitations is not tolled until the plaintiff
               actually knows the “specific type of legal claim he or she has.”
               Stansb ury, S.W.2d at ____, or that “the injury constitute[d] a breach of
               the app ropriate legal sta ndard, “ Roe v. J efferson , 875 S.W.2D 653, 657
               (Tenn. 1994). Rather, as we have recently emphasized, the statute of
               limitations begins to run when the plaintiff knows or in the exercise of
               reasonable care and diligence, should know that an injury has been
               sustaine d as a re sult of w rongf ul or tortio us con duct by th e defe ndant.
               Stanbury, S.W.2D at ___; see also Roe, 875 S.W.2D at 657 (“[T]he
               plaintiff is deemed to hav e discovered the right of a ction 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.”). “It is knowledge
               of facts sufficient to put a plaintiff on notice that an injury has been
               sustained which is crucial.” Stanbury, S.W.2D at ___. Such knowledge
               includes no t only an awa reness of th e injury, but also th e tortious orig in
               or wro ngful n ature of that inju ry. Hathaway v. Middle Tennessee
               Anesth esiolog y, P.C., 724 S.W.2D 355, 359 (Tenn . App. 198).

               Taking the view of the record mos t favorable to the plaintiffs, as we are

required to do, and allow ing all reasonable inference s in their favor, we conc lude there

are disp uted issu es of m aterial fa ct to be re solved by a trier of fact.

               Defendants in their brief argue:

                “while plaintiff may have been justified in accepting a brief period of
               paralysis as a necessary incident of the surgery, certainly plaintiff was
               not justified in “delaying the discovery” of his injury for a period of
               some two years. Bec ause the plaintiff in the exercise of reasonable care
               and diligence should have discovered his injury within only a few weeks
               or months of his surgery, his claim is barred by Tennessee Code
               Annotated §2 9-26-115(a).

                                                4
               Thus, d efend ants can not poi nt to the e xact da te the sta tute beg an to ru n.

The only material factual change during the course of treatment was the elapse of

time. At what time during the course of treatment with repeated assurances from the

doctor would a reasonable person be put on enquiry? On this issue we believe

reason able pe rsons c an diff er as to w hat poin t in time th is wou ld occu r.

               Defendants rely heavily on Bennett v. Hardison, 746 S.W.2d 713 (Tenn.

App. 1987), citing the following language from that opinion:

               Even though plaintiff may have been justified in accepting a brief period
               of numbness as a necessary incident of the surgery, absent evidence of
               some un usual caus e for the de lay, the defend ant was n ot justified in
               delaying the “discovery” of the perm anence of his injury from F ebruary
               24, 1984 , until “aroun d Octob er, 1984", . . . A t some po int during tha t 8
               months, any reasonable person would have concluded that the brief,
               temporary nu mbness n ormally inciden t to oral surger y had outlasted its
               welcom e and had beco me a n unacce ptab le inc iden t to th e sur gery.

In Bennett, defendant dentist had advised the plaintiff that he would experience some

temporary nu mbness. P laintiff did no t see the def endant af ter surgery, and w as at a

later date advised by another dentist that the numbness would be permanent. Unlike

this case, the defendant m ade no continuing representations about the plaintiff’s

condition.

               The plaintiff’s doctors were in a fiduciary relationship with plaintiffs

and treatment continued over the period of time involved, with continuing

reassuranc es from th e physician tha t the paralysis wa s tempora ry. If a patient is

required to question his fiduciary’s treatment and representations in order to protect

the patient’s rights, then the trust necessary between the doctor and patient for proper

treatment and care is strained, at best, and at worst, destroyed. Admittedly, the lapse

of time w eighs in def endants’ f avor. Ho wever, w e believe pla intiffs are en titled to

have th e trier of fact res olve this issue. See 61 Am.Jur.2d Physic ians, Su rgeon s, Etc.,

§167 p.295-9.

               Accordingly, we vacate the summary judgment and remand for further

                                                5
proceedings consistent with this opinion. The cost of this appeal is assessed to the

appellees.




                                          __________________________
                                          Herschel P. Franks, J.

CONCUR:




___________________________
Houston M. Godd ard, P.J.




___________________________
William H. Inman, Sr.J.




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