                                                                                                          08/23/2018
                  IN THE COURT OF APPEALS OF TENNESSEE
                             AT KNOXVILLE
                                    February 21, 2018 Session

   CRYSTAL HERPST v. PARKRIDGE MEDICAL CENTER, INC. ET AL.

                    Appeal from the Circuit Court for Hamilton County
                     No. 15C1351 Ward Jeffrey Hollingsworth, Judge
                         ___________________________________

                               No. E2017-00419-COA-R3-CV
                           ___________________________________



W. NEAL MCBRAYER, J., concurring.

        I concur in the majority’s conclusion that it was unnecessary for the trial court to
treat the motions of LeAnthony A. Hardy, M.D., Parkridge Medical Center, Inc.
Chattanooga Diagnostic Associates, LLC, and Columbia Medical Group-Parkridge, Inc.
to dismiss as motions for summary judgment. But I reach that conclusion without resort
to the pleadings filed in another case. Examining the allegations of the complaint filed in
this action only, Crystal Herpst filed outside the applicable statute of limitations. So on
the basis of the pleadings filed in this case I would affirm the dismissal of the complaint.

       The complaint filed by Ms. Herpst contains all the information necessary to
determine that her action was untimely. As the majority explains, the factual allegations
made by Ms. Herpst demonstrate that she had constructive notice of her medical
malpractice claim by July 3, 2013. Ms. Herpst filed suit on November 13, 2015, well
outside of the one-year statute of limitations provided for under Tennessee Code
Annotated § 29-26-116(a) (2012).

        In response to the motions to dismiss, Ms. Herpst raised the issue of the saving
statute, Tennessee Code Annotated § 28-1-105(a) (2017). But to determine that the
saving statute does not apply one must look no further than the complaint filed in this
action. The complaint alleges that Ms. Herpst “originally filed suit for damages on
November 6, 2014, Herpst vs. Parkridge Medical Center, Inc. et al, Circuit Court,
Hamilton County, TN No. 14C1329, which case was voluntarily non-suited on January
12, 2015.”1

        1
           Apparently, Ms. Herpst anticipated the assertion of the statute of limitations by the defendants.
Ordinarily, the burden of producing evidence that the saving statute applies falls on the plaintiff when the
statute of limitations is asserted as a bar to the action. Knox Cty. v. Moncier, 455 S.W.2d 153, 158 (Tenn.
       Because the complaint filed by Ms. Herpst in this action contains all the
information needed to resolve the motions to dismiss, I find it unnecessary to reach the
issue of whether the complaint filed by Ms. Herpst in the original suit was “outside of the
pleadings.” See Tenn. R. Civ. P. 12.02. Thus, I do not join in part III of the opinion.


                                                          _________________________________
                                                          W. NEAL MCBRAYER, JUDGE




1970) (opinion on petition to rehear). But, when in anticipation of the defense, the plaintiff alleges facts
“which would bring his cause of action within the saving statute, and these facts are not specifically
denied by the defendant, he is then relieved from the statutory bar and need not produce any proof
pertaining thereto.” Id.
                                                     2
