THERESA STANBURY and spouse,            )
JOHN H. STANBURY,                       )
                                        )
      Plaintiffs/Appellees,             )
                                        )    Davidson First Circuit
                                        )    No. 93C-1265
VS.                                     )
                                        )    Appeal No.
                                        )    01-A-01-9509-CV-00420
BRIAN E. BACARDI and HOSPITAL           )
CORPORATION OF AMERICA, d/b/a
CENTENNIAL MEDICAL CENTER,
                                        )
                                        )
                                        )
                                                                      FILED
      Defendants/Appellants.            )
                                                                      April 26, 1996

                                                                   Cecil W. Crowson
                    IN THE COURT OF APPEALS OF TENNESSEE
                                                                  Appellate Court Clerk
                          MIDDLE SECTION AT NASHVILLE


      APPEAL FROM THE FIRST CIRCUIT COURT OF DAVIDSON COUNTY

                              AT NASHVILLE, TENNESSEE


                 HONORABLE HAMILTON V. GAYDEN, JR., JUDGE


Helen S. Rogers
JONES, ROGERS & FITZPATRICK
Suite 1550 SunTrust Bank Building
201 Fourth Avenue, North
Nashville, Tennessee 37219
ATTORNEY FOR PLAINTIFFS/APPELLEES


Lela M. Hollabaugh
MANIER, HEROD, HOLLABAUGH & SMITH
First Union Tower, Suite 2200
150 Fourth Avenue, North
Nashville, Tennessee 37219-2494
ATTORNEY FOR DEFENDANTS/APPELLANTS


REVERSED, DISMISSED AND REMANDED

                                        HENRY F. TODD
                                        PRESIDING JUDGE, MIDDLE SECTION

BEN H. CANTRELL, JUDGE, CONCURS,
WILLIAM C. KOCH, JR., JUDGE, FILES SEPARATE OPINION CONCURRING IN
PART AND DISSENTING IN PART.
THERESA STANBURY and spouse,                   )
JOHN H. STANBURY,                              )
                                               )
       Plaintiffs/Appellees,                   )
                                               )      Davidson First Circuit
                                               )      No. 93C-1265
VS.                                            )
                                               )      Appeal No.
                                               )      01-A-01-9509-CV-00420
BRIAN E. BACARDI and HOSPITAL                  )
CORPORATION OF AMERICA, d/b/a                  )
CENTENNIAL MEDICAL CENTER,                     )
                                               )
       Defendants/Appellants.                  )


                                         OPINION


       The defendant, Brian E. Bacardi, has appealed from a jury verdict and judgment

awarding plaintiff, Theresa Stanbury, $211,000 and her husband, John H. Stanbury, $10,000,

as damages for alleged malpractice in surgery and treatment of Mrs. Stanbury. The other

captioned defendant, Hospital Corporation of America, was dismissed by nonsuit and is not

involved in this appeal.



       The sole issue on appeal is whether plaintiffs’ suit is barred by the one year medical

malpractice statute of limitations, T.C.A. §29-26-116.



       The patient first saw defendant on November 22, 1991. On December 11, 1991,

defendant performed the following surgical procedures on both feet of the patient:

               (a) transpositional osteotomy fifth metatarsal with internal
               fixation bilateral;

               (b) arthroplasty proximal interphalangeal joint third, fourth and
               fifth bilateral;

               © exostectomy remodeling distal medial fifth bilateral;

               (d) middle phalangectomy fourth bilateral;

               (e) flex ortenotomy third, fourth and fifth bilateral; and

               (f) tenoplasty extensor digitorus longus bilateral.




                                               -2-
       On December 20, 1991, the surgical dressings were removed from the patient’s feet

and she was able to observe the outward evidence of the procedures performed on December

11, 1991. The patient was seen by defendant on January 10, 1992, January 17, 1992,

February 14, 1992, and March 17, 1992. On April 3, 1992, defendant performed a further

surgical procedure to correct a misalignment of the fifth toe on the right foot. On May 5,

1992, defendant removed the sutures from the site of the surgery and informed the patient

that there was nothing further he could do to relieve her problems.



       This suit was filed on April 30, 1993. The complaint alleged deviation from the

recognized standard of acceptable medical practice in the following particulars:

               A. Negligently recommending surgery to the plaintiff which
               was not indicated, given her signs, symptoms and physical
               condition;

               B. Failing to obtain the plaintiff’s informed consent to the
               surgery performed on December 11, 1991;

               C. Negligently performing the surgical procedures on
               December 11, 1991 and April 3, 1992;

               D. Performing unnecessary surgery on December 11, 1991 and
               April 3, 1992;

               E. Negligently providing post-surgical care including the
               failure to maintain antiseptic techniques;

               F. Negligently causing an infection to Theresa Stanbury’s feet
               by ignoring basic principles of antiseptic;

               G. Ignoring the patient’s complaints of pain and infection;

               H. Intentionally and falsely preparing his office notes with the
               intent to conceal from the plaintiff and anyone else her true
               condition and result.


       Defendants’ answer included the affirmative defense of statute of limitations.



       The Trial Court submitted to the jury several issues of fact, including the following:

               3(a) Did the defendant, Brian Bacardi, deviate from the
               recognized standard of care for podiatrists in this community
               by



                                              -3-
              negligently performing the surgical procedures on December
              11, 1991, and/or April 3, 1992, on the plaintiff, Theresa
              Stanbury?


       As to this question the foreman of the jury asked the following question and the Trial

Judge responded as follows:

              MR. ROBINSON: I think the misunderstanding is are we to
              decide on that question, whether or not during the actual
              surgery itself, was a mistake made?

              THE COURT: Okay. That’s what I thought you meant. No,
              that’s not part of the lawsuit. Okay. The lawsuit, “negligent”
              refers to other acts of alleged malpractice. But as far as the
              operation itself, that’s not part of the lawsuit.


       On February 14, 1995, the Trial Court entered a “Final Decree” reciting:

               . . . After deliberating on February 1 and 2, 1995, the jury
              returned a verdict in favor of the plaintiff, Theresa Stanbury, on
              the issues of recommending and performing unnecessary
              surgery, lack of informed consent and negligently performing
              surgery, and awarded Theresa Stanbury compensatory damages
              of Two Hundred Eleven Thousand ($211,000.00) Dollars. The
              jury also returned a verdict for the plaintiff, John Stanbury, for
              his claim for loss of consortium in the amount of Ten
              Thousand ($10,000.00) Dollars. . . .


Judgment was entered accordingly.



       On February 24, 1995, the Trial Court entered an order containing the following:

               . . . At the close of the plaintiff’s case in chief, the defendant
              moved for a directed verdict on the entire cause on the grounds
              that the plaintiff’s cause of action was barred by the one year
              statute of limitations of the Tennessee Medical Malpractice
              Act. Defendant’s Motion for Directed Verdict was denied and
              the Court held that as a matter of law, plaintiff’s claim was not
              barred by the Statute of Limitations of the Medical Malpractice
              Act.

               Further, defendant moved for a directed verdict on the
              following issues:

                      1. Negligently providing post-surgical care, including
              the failure to maintain antiseptic techniques;

                     2. Negligently causing an infection to Theresa
              Stanbury’s feet by ignoring basic principles of antiseptic;



                                              -4-
                        3. Ignoring the patient’s complaints of pain and
                infection;

                        4. Intentionally and falsely preparing his office notes
                with the intent to conceal from the plaintiff and anyone else her
                true condition and result. The Court was of the opinion that
                defendant’s Motion for Directed Verdict on these issues was
                well taken.

                 Defendant also moved for a directed verdict on the issue of
                negligently performing the surgical procedures on December
                11, 1991 and April 3, 1992. The Court was of the opinion that
                defendant’s motion on this issue was not well taken and was
                overruled.

                 At the close of all of the proof, the defendant moved for
                directed verdict on the grounds that plaintiff failed to present
                competent expert testimony concerning the standard of care for
                podiatrists practicing in the Nashville, Davidson County
                community during the years 1991 and 1992.

                  The Court was of the opinion that this motion was not well
                taken and it was denied.


        On appeal to this Court, defendant states the issue as follows:

                 Whether the Trial Court erred in denying defendant’s motion
                for directed verdict on the statute of limitations and holding as
                a matter of law that plaintiffs’ cause of action was not time
                barred.


        It is undisputed that this suit was filed more than a year after all services rendered by

defendant except the final office visit on May 5, 1992. Nevertheless, plaintiffs insist that the

statute of limitations had not expired on April 30, 1993, when this suit was filed, upon

theories of continuing treatment and fraudulent concealment. In support of these theories,

plaintiffs cite the following:

        1. Defendant continued to treat Mrs. Stanbury to and including May 5, 1992, when he

removed the sutures from her last surgery.

        2. On May 5, 1992, defendant told the patient that healing would take about a year.

In this respect, Mrs. Stanbury testified:

                 Q. Did Dr. Bacardi talk to you about how long it was going to
                take you to recover after he did surgery on your right toe?




                                               -5-
                A. Only at the last visit where he decided that I wasn’t
               pleased with it so he didn’t like my response and he just said,
               “You’ve got to give it at least a year and then worry about it.”

               ....

                Q. Now, at this last office visit, did you complain to Dr.
               Bacardi about what was going on?

                A. Oh, yes. Of course.

                Q. And what did he tell you about what to expect from your
               feet?

                A. He said that I was trying to resolve something that needed
               more time. Needed time. To give yourself a year and see what
               you feel after that.

               ....

                Q. Well, was there any length of time mentioned or any
               indication given by him of how long you were going to be off
               work?

                A. Not until after everything was done. When he said he
               couldn’t do nothing for me he said, “Give it a year and see if
               you’re happy then.”


       Defendant testified as follows:

                Q. Dr. Bacardi, you’re telling the jury from here to here is
               straight?

                A. I also said that the digit is bandaged purposely in some
               over-correction at the time of surgery, and that’s routine with
               the little toe, because they do tend to pull back in towards the
               fourth.

                Sometimes we get that pulling in of the fifth toe towards the
               fourth toe down the road, a half year or a year later. That’s not
               unusual. And what we do during the surgery is to bandage that
               toe in a little over-correction purposely. And as time goes on,
               you will see the toe remains straight.


       No other evidence is cited or found which would defeat the defense of statute of

limitations.




                                              -6-
       T.C.A. Section 29-26-116 provides in pertinent part as follows:

               Statute of limitations. - Counterclaim for damages. - (a)
               (1) The statute of limitations in malpractice actions shall be one
               (1) year as set forth in § 28-3-104.

                (2) In the event the alleged injury is not discovered within the
               said one (1) year period, the period of limitation shall be one
               (1) year from the date of such discovery.

                (3) In no event shall any such action be brought more than
               three (3) years after the date on which the negligent act or
               omission occurred except where there is fraudulent
               concealment on the part of the defendant in which case the
               action shall be commenced within one (1) year after discovery
               that the cause of action exists.


       “Discovery” means the discovery of the existence of a right of action, that is, facts

which would support an action for tort against the tortfeasor. Such facts include not only the

existence of an injury, but the tortious origin of the injury. Hathaway v. Middle Tenn.

Anaesthesiology, Tenn. App. 1986, 724 S.W.2d 355.



       This rule was previously followed by Tennessee Courts, Teeters v. Curry, Tenn. 1974,

518 S.W.2d 512, 93 A.L.R.3rd 207; but was codified by the quoted section of the Code.

Housh v. Morris, Tenn. App. 1991, 818 S.W.2d 39.



       The gravamen of plaintiffs’ action is that, on December 11, 1991, defendant

performed surgery negligently, without actual or informed consent, and without advising the

patient of the lengthy recovery period to follow the surgery. The evidence is uncontradicted

that plaintiffs discovered or should have discovered facts supporting each of these complaints

more than a year prior to the institution of this suit on April 30, 1993.



       As stated above, the complaint alleged the performance of unnecessary surgery.

There is expert evidence that at least some of the surgery was unnecessary, but the claim for

same is barred unless saved by the “discovery rule.” No evidence is cited or found that

plaintiff did not discover or should not reasonably discovered that the surgery was



                                               -7-
unnecessary at least one year before this suit was filed. The brief of appellee does not rely

upon this aspect of the rule.



       There is no evidence that any fact necessary to support plaintiffs’ suit was

fraudulently concealed from them at such a time and under such circumstances as would

extend the statutory time for bringing suit until April 30, 1993.



       Plaintiffs rely upon the “continuing treatment doctrine.” In Frazor v. Osborne, 57

Tenn. App. 10; 414 S.W.2d 118 (1966), a surgeon left a surgical sponge imbedded in the

patient and thereafter continued to treat the unhealed incision without probing the incision for

a foreign object. The Trial Court directed a verdict for the surgeon on the ground of the

statute of limitations. This Court reversed and remanded for a new trial stating:

                 Bearing in mind that there is evidence in this case to indicate
               that the professional relationship between the decedent and the
               defendant, Dr. J. W. Osborne, did not cease until the discovery
               of the imbedded sponge in May, 1961, or sometime after that, it
               is our view that the evidence is such that the question of
               whether or not this professional relationship did continue until
               within one year of the filing of the suit is one that should have
               been submitted to the jury, and, if found by the jury that said
               relationship continued until within the statutory period of one
               year, the question of liability for negligence would have been
               for the jury to decide.

Frazor, 57 Tenn. App. at 20.

In Frazor, the negligence included failure to discover the cause of the unhealed wound. So

long as Dr. Osborne continued as the treating physician, his duty to discover and his failure to

discover continued. Thus, under the circumstances of Frazor, the continuance of the

physician relationship resulted in the continuance of the negligent failure to discover the

sponge.



       No such set of circumstances are shown in the present case. The professional

relationship did continue, but there is no evidence that the negligence, if any, of defendant

continued into the one year period preceding the filing of this suit. The only professional



                                               -8-
services rendered within one year preceding suit was the removal of sutures on May 5, 1993;

and there is no showing of any negligence in the removal of the sutures, or, for that matter, in

the performance of the last surgery on April 3, 1992, which included the insertion of the

sutures which were removed on May 5, 1992.



       The opinion in Frazor contains some language which may be interpreted as

supporting a rule that no statute of limitations or malpractice begins to run until the

termination of the doctor-patient relationship. This Court does not so interpret such language

which referred only to breach of duties (such as duty to discover) which continued so long as

the physician continued to treat the disorder which resulted from the continued failure to

discover the cause.



       Moreover, since the recognition of the continuing treatment doctrine in Frazor, its

applicability has been eroded or entirely eliminated by the above cited statute and subsequent

decisions.



       In Housh v. Morris, supra, this Court affirmed a summary judgment dismissing a

medical malpractice suit and said:

                Since the holding in Frazor, our courts have adopted and
               continuously applied the “discovery rule.” This rule is codified
               and made applicable to malpractice actions by T.C.A. § 29-26-
               116. The present action is governed by T.C.A. § 29-26-116.


       For the foregoing reasons, this Court finds that the Trial Court erred in failing to

direct a verdict for the defendant on the ground of the bar of the statute of limitations.



       The judgment of the Trial Court in favor of both plaintiffs is reversed and vacated,

and plaintiffs’ suit is dismissed at their cost. The cause is remanded to the Trial Court for

entry in conformity with this opinion and such other proceedings as may be necessary.




                                               -9-
     Reversed, Dismissed and Remanded.



                                         _______________________________________
                                         HENRY F. TODD
                                         PRESIDING JUDGE, MIDDLE SECTION




_____________________________________
BEN H. CANTRELL, JUDGE, CONCURS



WILLIAM C. KOCH, JR., JUDGE, FILES SEPARATE
OPINION CONCURRING IN PART AND DISSENTING IN PART.




                                         -10-
