                  IN THE COURT OF APPEALS OF TENNESSEE
                             AT KNOXVILLE
                           August 21, 2003 Session

    CLARENCE “AL” MATZ and wife, JOANN L. MATZ, v. QUEST
DIAGNOSTICS CLINICAL LABORATORIES, INC., D/B/A SMITH KLINE
      BEECHAM CLINICAL LABORATORIES, ASSOCIATED
 PATHOLOGISTS, PLC., ESTELLE E. MAY, M.D., and JARVIS LELAND
                        HUGHES, M.D.

                 Direct Appeal from the Circuit Court for Knox County
                No. 3-247-01  Hon. Wheeler A. Rosenbalm, Circuit Judge

                                    FILED OCTOBER 22, 2003

                               No. E2003-00167-COA-R3-CV



Defendants granted summary judgment in medical malpractice action on grounds the statute of
limitation had run. On appeal, we vacate and remand.


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


HERSCHEL PICKENS FRANKS , J. delivered the opinion of the court, in which CHARLES D. SUSANO,
JR., J., joined and HOUSTON M. GODDARD , P.J., did not participate.


John H. Cocke, Clarksdale MS, for Appellants.

Wynne C. Hall, Knoxville, Tennessee, for Appellees, Estelle E. May, M.D., and Associated
Pathologists, PLC.




                                          OPINION



              In this medical malpractice action, the Trial Court granted defendants summary
judgment on the grounds that Plaintiffs “knew or should have known of their cause of action more
than one year before the Complaint was filed” and that their claims were thus barred by the statute
of limitations. Plaintiffs have appealed.

               Plaintiffs’ Complaint was filed on April 18, 2001, and plaintiffs alleged that Matz had
a bleeding lesion on his head, and went to see Dr. Hughes in April of 1999 regarding the problem.
The Complaint further alleged that Dr. Hughes took a biopsy which was sent to the defendant lab,
where Dr. May examined the biopsy and did not find cancer. Further, that Dr. May suggested a
follow up biopsy, which Dr. Hughes performed on April 19, 1999, and sent the biopsy to Associated
Pathology, where it was again reviewed by Dr. May, and that Dr. May failed to recognize and
diagnose melanoma. Plaintiffs alleged that because of the negligence of defendants, Matz’ cancer
was not diagnosed until April 26, 2000, when the tumor recurred and was diagnosed as melanoma,
and that Matz now had a lesser chance of survival than he would have had if the cancer had been
diagnosed earlier.

                Defendants May and Associated Pathology filed a summary judgment motion,
alleging that plaintiffs failed to file their Complaint within the one year statute of limitations, and
asserted that Matz testified in his deposition that he thought he had cancer, and that it had just not
been diagnosed. Ms. Matz testified in her deposition that her husband was certain he had cancer all
along and that they had just failed to diagnose it. Thus, defendants argued that the suit was not
timely filed, because Matz had a subjective belief that he had cancer for some time before it was
actually diagnosed, and the Trial Court agreed and granted judgment to defendants.

               Our standard of review in summary judgment cases is as follows:

               The standards governing an appellate court's review of a trial court's action on a
               motion for summary judgment are well settled. Since our inquiry involves purely a
               question of law, no presumption of correctness attaches to the trial court's judgment,
               and our task is confined to reviewing the record to determine whether the
               requirements of Tenn. R. Civ. P. 56 have been met. Tenn. R. Civ. P. 56.03 provides
               that summary judgment is only appropriate where: (1) there is no genuine issue with
               regard to the material facts relevant to the claim or defense contained in the motion,
               and (2) the moving party is entitled to a judgment as a matter of law on the
               undisputed facts. The moving party has the burden of proving that its motion
               satisfies these requirements.

               The standards governing the assessment of evidence in the summary judgment
               context are also well established. Courts must view the evidence in the light most
               favorable to the nonmoving party and must also draw all reasonable inferences in the
               nonmoving party's favor. Courts should grant a summary judgment only when both
               the facts and the conclusions to be drawn from the facts permit a reasonable person
               to reach only one conclusion.

Carvell v. Bottoms, 900 S.W.2d 23, 26 (Tenn. 1995).


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               This is a medical malpractice case and, as such, is subject to the one year statute of
limitations. Tenn. Code Ann. §29-26-116. Thus, the issue is when the limitation period began to
run.

                 Plaintiffs’ argue they did not know that the first biopsy in 1999 showed cancer until
the slides were later reviewed by Dr. Googe and he rendered his report on April 26, 2000. Plaintiffs
assert that their Complaint was timely filed because it was filed on April 18, 2001. Defendants argue
the Complaint was not timely because. Matz testified that he “knew” all along that he had cancer,
even before it was diagnosed, and Matz was told that the last biopsy showed cancer no later than
April 13, 2000, and that biopsy was taken from the same spot as the earlier ones.

               This Court in Green v. Sacks, 56 S.W.3d 513, 522 (Tenn. Ct. App. 2001) has
explained:

               In 1974, the Tennessee Supreme Court adopted the discovery rule for determining
               when the statute of limitations begins to run in medical malpractice actions. Teeters
               v. Currey, 518 S.W.2d 512, 515 (Tenn.1974). The Tennessee General Assembly
               later codified the discovery rule in the Medical Malpractice Review Board and
               Claims Act in 1975, and the rule can now be found in Tenn. Code Ann. §
               29-26-116(a)(2). The purpose of the rule is to "alleviate the intolerable result" of
               barring a patient's medical malpractice claim before the patient knows or should have
               known that the claim exists. Foster v. Harris, 633 S.W.2d 304, 305 (Tenn.1982).

               Under the discovery rule, the medical malpractice statute of limitations begins to run
               when the patient discovers, or reasonably should have discovered (1) the occasion,
               the manner, and the means by which a breach of duty that caused his or her injuries
               occurred and (2) the identity of the person who caused the injury. Stanbury v.
               Bacardi, 953 S.W.2d 671, 677 (Tenn.1997); Roe v. Jefferson, 875 S.W.2d 653, 656
               (Tenn.1994); Foster v. Harris, 633 S.W.2d at 305. However, the discovery rule
               does not permit a patient to delay filing suit until he or she becomes aware of all the
               injurious consequences of the alleged negligence. Shadrick v. Coker, 963 S.W.2d at
               733. Thus, the statute of limitations will begin running when the patient becomes
               aware of facts that would put a reasonable person on notice that he or she has
               sustained an injury as a result of a tortious act of a health care provider.

             In considering the Medical Malpractice Claims Act of 1975 (codified at Tenn. Code
Ann. §29-26-116) our Supreme Court said:

                “the legislature exercised its constitutional prerogative to balance competing public
               policy interests so as to constrain application of the discovery rule by adopting a
               three-year ceiling, but, at the same time, preserve the salutary aspects of Teeters
               which allowed an innocent plaintiff ample time to bring suit.” Hoffman v. Hospital


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                 Affiliates, Inc., 652 S.W.2d 341 (Tenn. 1983).

               Thus, the discovery rule tolls the statute of limitations until the plaintiff knows, or
reasonably should know, that he has been injured and by whom. Defendants counter that plaintiffs’
suit was untimely because Matz testified he “knew all along” that the place on his head was cancer.

                Matz’ subjective belief or fear, however, had no factual basis, because the doctors’
findings were that no cancer was present. Our discovery rule requires that the plaintiff be 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.” Shadrick v. Coker, 963 S.W.2d 726, 733 (Tenn. 1998); Roe
v. Jefferson, 875 S.W.2d 653, 657 (Tenn. 1994). The discovery rule requires that a plaintiff know
“the occasion, the manner, and the means by which a breach of duty that caused his or her injuries
occurred.” Stanbury v. Bacardi, 953 S.W.2d 671, 677 (Tenn. 1997); Roe.

                 Here, the facts are that Matz “knew all along” that a lesion was removed and found
to be non-cancerous. Matz later became aware that another lesion appeared that was found to be
cancerous, but still at that point he had no factual basis for believing that the cancer was there “all
along.” Matz had no factual knowledge of the “occasion, manner, and means” by which defendants
breached the duty that caused him harm. Moreover, Matz did not know and could not reasonably
know that he had been harmed until April 26, 2000. It was not until he received the report from Dr.
Googe on April 26, 2000, that he knew or had a factual basis for believing the cancer had been
present in the first slides, and had been missed by Dr. May. His own doctor, Dr. Hughes, testified
that he did not suspect that cancer had been present earlier and had been missed until after this report
came out.

               In “latent injury” malpractice cases, which require expert testimony to establish,1 our
Court has recognized that a plaintiff has actual knowledge of an injury where there has been expert
opinion given of such injury, i.e. where the defendant admitted malpractice, or another expert opined
that there was malpractice. See Wilkins v. Dodson, Parker, et al., 995 S.W.2d 575 (Tenn. Ct. App.
1998); see also Roe.

               In this case, Matz’ injury is not the diagnosis of cancer, rather, it is the fact that it was
missed by Dr. May in 1999 and allowed to progress until April 26, 2000. See, e.g., Johnson v.
Mullee, 385 So.2d 1038 (Fla. Dist. Ct. App. 1980)(breast cancer missed on first examination, but
found after second exam and biopsy - evidence of metastasis found two years later. Court said no
discovery of injury until evidence of metastasis was discovered. The spread of the cancer, not the
cancer, was the injury.)

               Other courts have rejected defendants’ position. The Louisiana Supreme Court has
recognized that “mere apprehension by plaintiff that something is wrong is not sufficient to start
prescription unless plaintiff knew or reasonably should have known by exercising reasonable


        1
            See Tenn. Code Ann. §29-26-115.

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diligence that his problem condition may have been caused by acts of malpractice.” Gunter v.
Plauche, 439 So.2d 437 (La. 1983). Also see Duncan v. Spivak, 114 Cal. Rptr. 2d 166 (Cal. Ct. App.
2001).

                 We cannot say as a matter of law that plaintiff had actual knowledge of cancer when
he had no factual basis for the same and was actually advised that nothing was wrong. But, we also
must examine whether plaintiff acted reasonably given the facts which he did possess, or whether
these facts should have given him constructive knowledge that he had been injured. Generally, the
question of whether a plaintiff should have discovered his injury earlier based on the facts known
to him is a question of fact which must be determined by a jury. McClellan v. Stanley, 978 S.W.2d
943 (Tenn. Ct. App. 1998). Also see Chidester v. Elliston, 1997 WL 71932 (Tenn. Ct. App. Feb. 20,
1997); Green v. Sacks, 56 S.W.3d 513 (Tenn. Ct. App. 2001). This line of reasoning has been
followed by other states, as well. Duncan v. Spivak, 114 Cal. Rptr. 2d 166 (Cal. Ct. App. 2001). In
that case plaintiff had testified in his deposition that he had known for some time that something was
wrong because he had such pain, but he did not know that the defendant had done anything wrong
until the exploratory surgery revealed the source of his pain. In that case, plaintiff argued that there
was an issue of fact regarding when he discovered his injury, and the California Court of Appeals
agreed, and emphasized that plaintiff did not discover the facts essential to his claim until the later
exploratory surgery, and that to hold otherwise would require a plaintiff to file suit with no objective
proof of malpractice. That Court ruled it was a question of fact for the jury as to whether plaintiff’s
efforts to discover the facts were diligent. To the same effect, see Lebrecht v. Tuli, 473 N.E.2d 1322
(Ill. App. Ct. 1985) and Janetis v. Christensen, 558 N.E.2d 304 (Ill. App. Ct. 1990); and Bradtke
v. Reotutar, 574 N.E.2d 110 (Ill. App. Ct. 1991). (The Bradtke Court recognized that it had
previously refused to hold as a matter of law that a subjective belief of misdiagnosis, combined with
worsening symptoms, triggered the patient’s duty to investigate and concluded that the issue of when
discovery occurred was a question of fact.)

                The question of when Matz’ injury was reasonably discoverable given Mr. Matz’
knowledge and circumstances is a question of fact inappropriate for determination by summary
judgment. As our Supreme Court has recognized, summary judgment is not the appropriate vehicle
for resolving conflicting inferences reasonably drawn from the facts - rather, its purpose is to resolve
controlling issues of law. Bellamy v. Federal Express Corp., 749 S.W.2d 31 (Tenn. 1988). Whether
Matz knew or reasonably should have known of his injury and its cause is not an issue of law, but
of fact. Since the facts and inferences in this case support more than one reasonable conclusion,
summary judgment was improperly granted. Shadrick v. Coker, 963 S.W.2d 726 (Tenn. 1998).

                Defendants rely on the case of Crawford v. Beatty, 2003 WL 113122 (Tenn. Ct. App.
Jan. 14, 2003), wherein the defendant physicians were granted summary judgment based on the
statute of limitations. Crawford is distinguishable from the case at bar because the plaintiff in
Crawford had an objectively verifiable basis for her knowledge, which she then tried to conceal. Id.
Plaintiff in this case was forthright about his belief that he had cancer even though he was told
otherwise, but he had no objective basis for this belief. Plaintiff also suffered mental problems for
which he was hospitalized at around the time of the biopsy of the second lesion, which further


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militates in favor of allowing his suit to go forward, because his subjective belief was obviously an
irrational fear with no factual basis.

                We vacate the summary judgment and remand to the Trial Court for determination
of the fact finder when plaintiff reasonably could and should have discovered his injury and its
cause.2

                The cause is remanded, with the cost of the appeal assessed to defendants.




                                                        _________________________
                                                        HERSCHEL PICKENS FRANKS , J.




       2
          Defendants allege that the summary judgment was proper because plaintiff failed to properly
respond to the statement of undisputed material facts pursuant to Tenn. R. Civ. P. 56. This issue was
not raised at the Trial Court level and a review of the record demonstrates that plaintiff did, in fact,
file a response to the statement, along with a brief and numerous exhibits which set forth plaintiff’s
position.

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