JEANNIE FARROW,                    )    Appeal No.
     PLAINTIFF/APPELLANT,          )    03A01-9603-CV-00084
v.                                 )
CHARLES F. BARNETT AND FORT        )    Knox Circuit Court No.
SANDERS PARKWEST MEDICAL CENTER,   )    2-546-95
     DEFENDANTS/APPELLEES.         )

                                               FILED
                                                October 3, 1996

             COURT OF APPEALS OF TENNESSEE Crowson, Jr.
                                       Cecil
                                               Appellate C ourt Clerk

             WESTERN SECTION AT KNOXVILLE

         APPEAL FROM THE KNOX CIRCUIT COURT

                 AT KNOXVILLE, TENNESSEE

        THE HONORABLE HAROLD WIMBERLY, JUDGE




CARL R. OGLE, JR.
P.O. Box 129
Jefferson City, TN 37760
     ATTORNEY FOR PLAINTIFF/APPELLANT


ROBERT H. WATSON, JR.
JOHN C. DUFFY
Watson, Hollow and Reeves, P.L.C.
1700 First Tennessee Plaza Tower
800 South Gay Street
Post Office Box 131
Knoxville, Tennessee 37901-0131
     ATTORNEYS FOR DEFENDANT/APPELLEE
     CHARLES F. BARNETT, M.D.


F. MICHAEL FITZPATRICK
Arnett, Draper & Hagood
2300 First Tennessee Plaza
Knoxville, Tennessee 37929-2300
     ATTORNEY FOR DEFENDANT/APPELLEE
     FORT SANDERS PARKWEST MEDICAL CENTER




                    AFFIRMED AND REMANDED




                                   SAMUEL L. LEWIS, JUDGE
                        MEMORANDUM OPINION1
      This is an appeal by plaintiff/appellant, Jeannie Farrow, from

two orders of the trial court which granted the motion to dismiss

filed     by   defendant/appellee,    Charles    F.    Barnett,    M.D.     (“Dr.

Barnett”),      and   the   motion   for    summary     judgment    filed     by

defendant/appellee, Fort Sanders Parkwest Medical Center (“the

Medical Center”).       In its orders, the trial court concluded that

plaintiff failed to file her action within the applicable statute

of limitations.       The facts out of which this controversy arose are

as follows.



        On 17 August 1995, plaintiff filed a complaint for medical

malpractice and alleged the following.                Plaintiff visited Dr.

Barnett's office on 10 August 1994.          He ordered plaintiff to have

an MRI performed at the Medical Center. Dr. Barnett gave plaintiff

a prescription for Xanax and told her to take the Xanax thirty

minutes prior to having the MRI performed.            Plaintiff went to the

Medical Center on 18 August 1994 to have the MRI performed.2                   As

ordered by Dr. Barnett, plaintiff ingested the prescribed dosage of

Xanax and the Medical Center performed the MRI.            Employees of the

Medical Center placed plaintiff in a chair following the MRI

procedure and left her unattended. Plaintiff passed out because of

the effects of the Xanax and fell from the chair.            She was injured

when her shoulder and other parts of her body struck the floor.



        On 18 September 1995, Dr. Barnett filed a motion to dismiss

and an alternative motion for summary judgment.             He claimed that

      1

Court of Appeals Rule 10(b):
      The 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. When a case is decided by memorandum opinion it
      shall be designated "MEMORANDUM OPINION," shall not be published,
      and shall not be cited or relied on for any reason in a subsequent
      unrelated case.

      2
         Appellants later established the actual date of the procedure was 13
August 1994.

                                       2
plaintiff filed her claim outside the statute of limitations and

that he was entitled to a judgment as a matter of law.     He also

alleged that he did not deviate from the recognized standard of

acceptable professional practice.     In support of his motion, he

filed his own affidavit and a memorandum.



     On 21 September 1995, the Medical Center filed a motion for

summary judgment.   The Medical Center provided affidavit testimony

and numerous exhibits proving that it actually performed the MRI on

13 August 1994, not 18 August as alleged in plaintiff's complaint.

Because plaintiff filed her complaint on 17 August 1995, the

Medical Center contended she filed it outside the applicable

statute of limitations.



     On 3 January 1996, the trial court entered an order dismissing

plaintiff's claims against the Medical Center.     The trial court

stated: “The Court considered the . . . record as a whole, and

found that the motion was well taken and should be sustained on the

basis that the statute of limitations had expired prior to the

filing of the plaintiff's lawsuit.”     On the same day, the court

entered a second order that addressed Dr. Barnett's motion to

dismiss.   The court stated:   “After hearing arguments of counsel,

and considering the record as a whole, the Court found the Motion

to be well taken and ruled that Plaintiff had failed to file her

action within the applicable statute of limitations.”   Thereafter,

the court dismissed plaintiff's claims against both defendants.



     Plaintiff filed her notice of appeal on 30 January 1996.

Plaintiff notified the court that she was appealing both the

court's orders entered on 3 January 1996.     On appeal, plaintiff

raised the following issue: “Whether the circuit judge erred in

finding that the Plaintiff's complaint was barred on the statute of

limitation grounds.”

                                  3
I.    STANDARD OF REVIEW



      Pursuant   to    the   Tennessee     Rules   of    Civil    Procedure   and

Tennessee case law, we must review the court's orders as if both

had granted defendants summary judgment.                To explain, Rule 12 of

the Tennessee Rules of Civil Procedure provides as follows:

      If, on a motion asserting the defense numbered (6) to
      dismiss for failure to state a claim upon which relief
      can be granted, matters outside the pleading are
      presented to and not excluded by the court, the motion
      shall be treated as one for summary judgment and disposed
      of as provided in Rule 56, and all parties shall be given
      reasonable opportunity to present all material made
      pertinent to such a motion by Rule 56.

TENN. R. CIV . P. 12.02 (West 1996).        Moreover, the Tennessee Supreme

Court has held that a trial court converts a Rule 12.02(6) motion

into a Rule 56 motion when it considers matters outside the

pleadings.    Knierim v. Leatherwood, 542 S.W.2d 806, 808 (Tenn.

1976).   A trial court, however, can “prevent a conversion from

taking place by declining to consider extraneous matters.” Pacific

E. Corp. v. Gulf Life Holding Co., 902 S.W.2d 946, 952 (Tenn. App.

1995).   A matter outside the pleadings is “'any written or oral

evidence in support of or in opposition to a pleading that provides

some substantiation for and does not merely reiterate what is said

in the pleadings.'” Kosloff v. State Auto. Mut. Ins. Co., Ch. App.

No.   89-152-II,      1989   WL   144006,    at    *2    (Tenn.   App.   1    Dec.

1989)(quoting 5 CHARLES A. WRIGHT & ARTHUR R. MILLER , FEDERAL PRACTICE        AND

PROCEDURE § 1366 (1969)).



      It is clear that the trial court considered matters outside

the pleadings when ruling on both the motion for summary judgment

and the motion to dismiss.        Thus, the court converted the motion to

dismiss into a motion for summary judgment.                In both orders, the

trial court stated that it had considered the entire record.                   The

record in this case contained numerous matters which did more than

reiterate what was in the pleadings.               For example, the Medical

                                       4
Center   attached   the    affidavit       of   Lisa   Little,   the   radiology

technologist who performed the MRI, and three other exhibits to its

motion for summary judgment.           The affidavit and the exhibits

provided information that was not in plaintiff's complaint and

corrected information, the date of the MRI procedure, which was

stated incorrectly in plaintiff's complaint.              This evidence became

part of the record.       Because the trial court considered the entire

record, we must review this case and address appellant's issue

pursuant to summary judgment standards.



      A trial court must grant a motion for summary judgment when

there are no genuine issues of material fact and the law entitles

the moving party to a judgment.        Byrd v. Hall, 847 S.W.2d 208, 214

(Tenn. 1993).   “In making its determination, the court is to view

the evidence in a light favorable to the nonmoving party and allow

all reasonable inferences in his favor.”               Id. at 215.     These same

principles apply to this court's review of a trial court's decision

to grant summary judgment.       See Gonzales v. Alman Constr. Co., 857

S.W.2d 42, 44 (Tenn. App. 1993).



II.   STATUTE OF LIMITATIONS



      The applicable statute of limitations provides that medical

malpractice cases “shall be commenced within one (1) year after the

cause of action accrued . . . .”            TENN . CODE ANN . § 28-3-104 (a)(1)

(Supp. 1996).   In addition, the statutes also provide:

         (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.

Id. § 29-26-116(a)(1)&(2) (1980).           The Tennessee Supreme Court has

had numerous occasions to interpret and apply the language of this

                                       5
statute.



     Prior to the codification of the discovery rule, the Tennessee

Supreme Court recognized its importance in medical malpractice

cases.     Teeters v. Currey, 518 S.W.2d 512 (Tenn. 1974).                   The

Teeters court defined when the cause of action accrues as “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.”      Id. at 517.



     Since the codification of the discovery rule, the Tennessee

Supreme Court has defined when the statute of limitations begins to

run in cases similar to the one currently before this court.                  As

recognized by the Tennessee Supreme Court, Tennessee Code Annotated

section    29-26-116(a)   does   not       “specifically    address   what   the

appropriate period of limitations would be if the alleged negligent

act is discovered within the one year period but after the date of

injury.” Hoffman v. Hospital Affiliates, Inc., 652 S.W.2d 341, 344

(Tenn. 1983).    In Hoffman, the Court used the common law to “fill

in the crack left by the legislature's silence.”3                 The Hoffman

court relied on Teeters and concluded that the interpretation of

when a cause of action accrues found in Teeters “fits squarely with

both the wording of the statute and prior case law.”                  Id.    The

court then held that the discovery rule applies only when the

“plaintiff does not discover and reasonably could not be expected

to discover that he has a right of action.”           Id.    In addition, the

court held that the statute is tolled only when “the plaintiff has



     3
         Id. At the intermediate level, the Middle Section of the Court of
Appeals held that Tennessee Code Annotated section 29-26-116(a)(2), the
“savings statute,” did not apply because the plaintiff discovered the injury
within one year of the negligent act. Thus, the court concluded that the
plaintiff had one year from the negligent act in which to file his or her
complaint. Hoffman v. Hospital Affiliates, Inc., slip op. at 3-4 (Tenn. App.
1 Feb. 1982), rev'd, 652 S.W.2d 341 (Tenn. 1982). The facts of Hoffman are
similar to the present case. In this case, plaintiff claimed that she
discovered her injuries twelve to thirteen days after the negligent act.

                                       6
no knowledge at all that a wrong has occurred, and, as a reasonable

person is not put on inquiry.”    Id.



       In another case, the Tennessee Supreme Court defined the date

of discovery.    Foster v. Harris, 633 S.W.2d 304, 305 (Tenn 1982);

see Hoffman, 652 S.W.2d at 343.       Specifically, discovery occurs

when the plaintiff discovers or reasonably should have discovered:

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

occurred that produced his injury; and (2) the identity of the

defendant who breached the duty.”       Foster, 633 S.W.2d at 305.   In

a more recent opinion, the Tennessee Supreme Court held that a

plaintiff does not have to have actual knowledge “that the injury

constitutes a breach of the appropriate legal standard.”       Roe v.

Jefferson, 875 S.W.2d 653, 657 (Tenn. 1994).       Instead, the Court

held that the plaintiff only needs to be “aware of facts sufficient

to put a reasonable person on notice that he has suffered an injury

as a result of wrongful conduct.”       Id.



       To summarize, Tennessee's discovery rule prevents the statute

of limitations in medical malpractice case from beginning to run

until the plaintiff discovers or in the exercise of reasonable care

and diligence should have discovered: 1) facts sufficient to put a

reasonable person on notice that he has suffered an injury as a

result of wrongful conduct and 2) the existence or identity of a

wrongdoer.   Id.; Hoffman, 652 S.W.2d at 343; Foster, 633 S.W.2d at

305.    Moreover, this rule applies even if the plaintiff discovers

the injury within one year of the negligent act.         Hoffman, 652

S.W.2d at 344.    Finally, the rule will not apply if the plaintiff

could have reasonably been expected to discover that he or she had

a cause of action.    Id.



       The dates relevant to a determination of the issue in this


                                  7
case are as follows.        The first date, 10 August 1994, is the date

that Dr. Barnett prescribed what plaintiff claims was an excessive

dosage of Xanax.      Next, plaintiff claims the Medical Center was

negligent on 13 August 1994, the date it performed the MRI.

Plaintiff contended that her shoulder and back were sore and that

she called the hospital on 25 August 1994.             The hospital called

plaintiff back on 26 August 1994 and requested she come in for x-

rays.4   Plaintiff filed her complaint on 17 August 1995.



     It is the opinion of this court that the trial court correctly

determined that the statute of limitations bars plaintiff's claims.

As previously stated, the discovery rule tolls the statute until a

person discovers or in the exercise of reasonable care should have

discovered certain facts. Assuming that plaintiff had no knowledge

of the fall, it is reasonable to expect that plaintiff would

discover the injury, at least the soreness, within a few days after

the fall.     Had plaintiff exercised reasonable care and diligence

for her own health and welfare, she would have discovered facts

sufficient to place her on notice prior to 17 August 1994.              Note,

the record     does   not   contain   any   evidence   that   plaintiff   was

unconscious other than when she passed out on 13 August 1994.

Plaintiff was admitted as an out-patient, and as such, she did not

remain in the hospital overnight.           The record also reveals that

plaintiff claims to remember nothing about the MRI or the period

she claims Medical Center employee's left her unattended, yet she

never inquired into the reasons for her blackout.               There is no

evidence that plaintiff expected the Xanax to have such an affect.

Thus, the simple fact that plaintiff did not remember the MRI or

the period thereafter should have, at the very least, put her on

notice that something was wrong and caused her to inquire further.

See Housh v. Morris, 818 S.W.2d 39, 42-43 (Tenn. App. 1991).



     4
         There is no evidence in the record as to what the x-rays revealed.

                                      8
     For these reasons, the trial court correctly determined that

plaintiff's claims were barred by the statute of limitations.   The

judgment of the trial court is affirmed and remanded for any

further necessary proceedings.   The costs on appeal are taxed to

plaintiff/appellant, Jeannie Farrow.




                                     ___________________________
                                     SAMUEL L. LEWIS, JUDGE



CONCUR:


_____________________________
W. FRANK CRAWFORD, JUDGE


_____________________________
DAVID R. FARMER, JUDGE




                                 9
