Julia Young, on behalf of the estate of Cecil C. Young v. Lisa Kennedy, M.D. and Methodist Health Systems, Inc.

IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

July 16, 2013 Session

JULIA YOUNG, on behalf of the estate of CECIL C. YOUNG v. LISA

KENNEDY, M.D. and METHODIST HEALTH SYSTEMS, INC.

Direct Appeal from the Circuit Court for Shelby County

No. CT-003278-02, Div. I John R. McCarroll, Judge

No. W2012-00836-COA-R3-CV - Filed August 13, 2013

This case involves the application of the medical malpractice statute of limitations. The trial

court granted summary judgment to the defendant doctor, finding that the statute of

limitations defense was not waived by her failure to raise it in her first pre-answer motion,

that the defense was sufficiently pleaded, and that the undisputed facts in the record

supported a finding that the statute of limitations had expired at the time of filing the initial

complaint. Affirmed and remanded.

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

Remanded

J. S TEVEN S TAFFORD, J., delivered the opinion of the Court, in which A LAN E. H IGHERS, P.J.,

W.S., and H OLLY M. K IRBY, J., joined.

Amanda K. Strange, Memphis, Tennessee, for the appellant, Julia Young, on behalf of the

estate of Cecil C. Young.

Andrea N. Malkin and Tiffany Taylor Bowders, Memphis, Tennessee, for the appellees, Lisa

Kennedy, M.D. and Methodist Health Systems, Inc.

OPINION

I. Background

Cecil C. Young was admitted to Methodist North Hospital on March 27, 2001. At the

time, he was in remission from lymphoma but was experiencing radiation pneumonitis and

a pulmonary infection that were not responding to oral antibiotics. Upon admission, Mr.

Young was seen by Defendant/Appellant Dr. Lisa Kennedy, a pulmonary specialist. Dr.

Kennedy prescribed oral steroids, which initially caused Mr. Young’s condition to improve.

Dr. Kennedy later performed a fibrotic bronchoscopy on Mr. Young on April 3, 2001.

According to the Complaint in this case, Mr. Young was discharged from the hospital on the

same day, despite tests that allegedly revealed the presence of pseudomonas aeruginosa.1

According to the Complaint, Dr. Kennedy failed to prescribe any medication specifically to

treat that infection.

On April 18, 2001, Mr. Young appeared at his primary care physician’s office,

complaining of a worsening in his condition. Office tests showed that Mr. Young’s blood

pressure was low. Mr. Young’s doctor ultimately sent him to the emergency room at

Methodist North Hospital. Upon arrival on April 18, 2001, Mr. Young was admitted into the

Intensive Care Unit and was prescribed an array of medications. After a period of treatment

in the Intensive Care Unit, Mr. Young was transferred to the Transitional Care Unit, which

is a rehabilitation wing of the hospital. On May 9, 2001, however, Mr. Young’s condition

began to deteriorate and he was transferred back to the Intensive Care Unit. According to the

Complaint, staff at Methodist Hospital attempted to contact Dr. Kennedy on May 9, 2001,

but Dr. Kennedy failed to respond for several hours, despite multiple telephone calls. While

in the Intensive Care Unit, Mr. Young was seen by Dr. Kerry Cleveland, an infectious

disease doctor. Although Dr. Cleveland placed Mr. Young on a ventilator and Mr. Young

later underwent a tracheotomy, his condition continued to worsen. Mr. Young was then

heavily medicated and sedated.

Mr. Young’s wife, Plaintiff/Appellant Julia Beth Young, later described Mr. Young’s

condition on May 9, 2001, stating: “The day Mr. Young was to be discharged he developed

a high fever. It was a remarkable appearance that I’ve never seen. His face was red like it was

scalded. He was vomiting, and it was dramatic, very dramatic.” Ms. Young also testified that

although she was unsure at the time of Mr. Young’s exact diagnosis, she was aware that he

had acquired an infection. With regard to this infection, Ms. Young testified: “It was just an

obvious thing from watching what happened. I mean, and the isolation that happened

afterwards, I knew it was a hospital acquired infection.” Ms. Young clarified that she

suspected that Mr. Young had acquired a hospital infection “at the time.” Ms. Young also

testified that any treatment was seriously delayed by Dr. Kennedy’s failure to respond to their

calls.

Ms. Young testified that she questioned Dr. Kennedy twice during Mr. Young’s

hospitalization regarding his treatment. First, Ms. Young expressed concern that the

1

Pseudomonas areruginosa is a “species of . . . . bacteria that may cause various human diseases

ranging from purulent meningitis to nosocomial infected wounds.” Mosby’s Medical, Nursing, and Allied

Health Dictionary 1343 (5th ed. 1998).

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antibiotic prescribed to Mr. Young was causing an adverse reaction. According to Ms.

Young, Dr. Kennedy refused to change the antibiotic. Ms. Young further testified about

another incident in which she confronted Dr. Kennedy regarding Mr. Young’s course of

treatment. This second confrontation occurred while Mr. Young was still lucid (prior to Mr.

Young slipping into a coma on June 6, 2001). During the argument, as Ms. Young described

the confrontation, Ms. Young expressed her displeasure with Dr. Kennedy’s suggested

course of treatment and requested that Mr. Young be transferred to another hospital to allow

him to be treated by another doctor, as Ms. Young was “unhappy with Dr. Kennedy.”

Specifically, Ms. Young took issue with Dr. Kennedy’s belief that Mr. Young was dying of

lymphoma, and her suggestion to just make Mr. Young comfortable. Indeed, Ms. Young

testified that Mr. Young shared her concerns about Dr. Kennedy, indicating that he was

displeased with the level of care he was receiving and asking to be moved to a different

hospital. Ms Young testified:

He was afraid to stay at night, and he expressed that. I felt like

the entire staff and Dr. Kennedy included in that had the opinion

that he was dying from lymphoma and that there was not much

reason to do more than just make him comfortable. That was my

feeling at the time.

Instead, Ms. Young believed that a more aggressive course of treatment was warranted. Ms.

Young also testified that she informed the hospital staff that she believed that Mr. Young was

being prescribed too much medication, which was causing his blood pressure to decrease.

Dr. Kennedy’s patient notes also evidence this confrontation, which she notes took place on

June 6, 2001. Dr. Kennedy’s notes state:

Family not happy [with] my care. They feel that I am keeping

him too sedated, not allowing him to participate in physical

therapy. They also question my management of his fluids and

pressors. Furthermore, they do not accept my assessment of his

prognosis. They would like another pulmonologist to assume his

care.

Despite this argument, Mr. Young stayed in the Intensive Care Unit of Methodist North

Hospital. Mr. Young slipped into a coma on June 6, 2001 and passed away on June 12, 2001.

On July 22, 2001, Ms. Young filed a Quality Incident Report Form and Appeal

request with the Joint Commission on Accreditation of Healthcare Organization (“JCAHO”).

In the complaint, Ms. Young alleged that Dr. Kennedy’s negligence “sent [Mr. Young]

spiraling into a decline.” Specifically, Ms. Young alleged that Dr. Kennedy and the hospital

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staff were negligent in failing to prevent Mr. Young from acquiring a hospital infection on

May 9, 2001, and that Dr. Kennedy failed to treat the infection properly. The complaint

further alleged that due to Dr. Kennedy’s failure to return to the hospital despite repeated

calls, “[t]here was a delay in discovery of the [hospital acquired] infection with valuable time

lost as a result. Dr. Kennedy did not inform us [Mr. Young’s] transfer back to the [the

Intensive Care Unit] was due to an in-house acquired staph infection.” In addition, Ms.

Young alleged that Dr. Kennedy and the hospital staff were negligent in over-medicating Mr.

Young, causing him to slip into a coma, stating:

Specific negligent behavior by RN [] Harvey on June 6, 2001,

through medication abuse or mismanagement, resulting in a

crisis event, precipitating a coma from which [Mr. Young] never

recovered. I repeatedly requested Dilaudid be reduced or another

drug substituted. . . . Dr. Kennedy continued to order Dilauidid.

Ms. Young also filed a complaint with the Tennessee Department of Health, Division

of Health Related Boards. She was interviewed in connection with her complaint on

September 5, 2001. In the interview, Ms. Young reiterated her view that Dr. Kennedy was

negligent in allowing Mr. Young to acquire an infection. The interviewer drafted a report of

Ms. Young’s interview. According to the interviewer:

[Ms. Young] stated that around May 9th [or] 10th she

called Dr. Kennedy after a sudden onset of change in her

husband[‘s] condition. . . . She stated that Dr. Kennedy was

summoned by the nurse to come and she refused to come. She

stated that it was sometime that night before they were able to

diagnose that her husband had contracted a nasocomial

staphylococcal infection. . . . She stated that she didn’t find that

out until much later on because by midnight they had put her

husband back in [the Intensive Care Unit].

* * *

She stated something drastic happened. . . . She stated she was

so in the dark that she really didn’t know what happened and she

couldn’t get anyone to tell her what happened. Except she stated

she felt there was a good deal of negligence and problems going

on there that needed to be addressed.

I asked her what caused her to feel that something

happened. She stated that the day whatever happened happened

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[N]urse [] Harvey told her that she had given her husband some

Dilaudid, Tylenol, and Diprivan. She stated she expressed some

concern about that because it had taken her husband’s blood

pressure down. She stated that Nurse Harvey stated that they had

to keep her husband sedated because he was on the ventilator. .

. . She stated that she repeatedly tried to get the doctor to lower

the amount of Dilaudid administered to her husband but they

wouldn’t listen. She stated when she came in that day that

whatever happened happened there were several nurses in the

room . . . She stated he never woke up after that. . . . they (her

family) kn[e]w that something happened and they tried to find

out what.2

On June 11, 2002, Ms. Young, individually and as next of kin for Mr. Young, along

with the couple’s children,3 filed a wrongful death action (“the initial Complaint”) against

the Defendants/Appellees Dr. Kennedy, and Methodist Health Systems, Inc. (“Methodist”),

which operated Methodist North Hospital.4 The initial Complaint alleged that Dr. Kennedy

and Methodist caused Mr. Young’s death due to their medical negligence surrounding a

period of treatment from March 27, 2001 to June 12, 2001. Specifically, the initial Complaint

alleged that Mr. Young acquired an infection on May 9, 2001, that he slipped into a coma on

June 6, 2001, and that he died on June 12, 2001.

On August 14, 2002, Dr. Kennedy filed a Motion for Judgment on the Pleadings,5

2

Nothing in the record indicates the resolution of either Ms. Young’s JCAHO complaint or the

Tennessee Department of Health investigation.

3

Ms. Young’s individual claims and the claims of her children were eventually non-suited and are

not at issue in this appeal.

4

The Complaint also named Olympus America, Inc. (“Olympus”), the company that manufactured

the endoscopic equipment used in Mr. Young’s fibrotic bronchoscopy, and Dr. Cleveland, the infectious

disease doctor who treated Mr. Young at Methodist North. According to the parties, Ms. Young ultimately

nonsuited her case against Dr. Cleveland and the claim against Olympus was removed to the United States

District Court for the Western District of Tennessee. Accordingly, neither are a party to this appeal.

5

As a point of practice, we note that the Rule governing Motions for Judgment on Pleadings

specifically states that such motions are to be filed “[a]fter pleadings are closed.” At the time Dr. Kennedy’s

motion was filed, the pleadings had not closed. Accordingly, this motion was untimely, and should have been

considered a Motion to Dismiss for failure to state a claim upon which relief can be granted. See Timmins

v. Lindsey, 310 S.W.3d 834, 838 (Tenn. Ct. App. 2009) (“When a motion for judgment on the pleadings is

made by the defendant, it is in effect a motion to dismiss for failure to state a claim upon which relief can

(continued...)

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which motion did not raise the issue of the expiration of the statute of limitations. Methodist

filed an Answer to the Complaint on September 23, 2002. Ms. Young entered a Notice of

Voluntary Non-suit as to Dr. Kennedy on January 6, 2003. The case against Methodist

remained pending.

On January 8, 2003, Methodist filed a Motion for Summary Judgment alleging that

Ms. Young’s failure to designate an expert witness was fatal to her claim. Methodist filed the

affidavit of its own expert, who opined that Mr. Young’s death was not caused by any

negligence on the part of Methodist.

Ms. Young re-filed her Complaint against Dr. Kennedy on December 12, 2003 (“the

Complaint”). The Complaint alleged the same factual scenario as the first action. Summons

was not issued to Dr. Kennedy until July 28, 2004. Dr. Kennedy filed a Motion to Dismiss

the Complaint, or in the Alternative for Judgment on the Pleadings (“Motion to Dismiss”),

on August 24, 2004. Dr. Kennedy alleged that Ms. Young’s Complaint was barred by the

expiration of the one-year statute of limitations. On April 22, 2005, Dr. Kennedy filed a

Memorandum in Support of her Motion to Dismiss, alleging the acts of negligence occurred

on May 9, 2001 and June 6, 2001, and the Complaint was filed more than one year later, on

June 11, 2002.

The case against Dr. Kennedy was consolidated by consent order on June 3, 2005 with

the Complaint pending against Methodist. On June 7, 2005, Dr. Kennedy re-filed the Motion

to Dismiss and accompanying Memorandum in the consolidated case. On August 17, 2005,

Dr. Kennedy filed an Answer to Ms. Young’s Complaint, again raising the defense that the

claim was barred by the expiration of the statute of limitations. The case was then stayed due

to Ms. Young’s bankruptcy proceeding. The stay was lifted on March 18, 2009. At some

point, Ms. Young’s initial attorney withdrew. Ms. Young’s current attorney entered a notice

of appearance on her behalf on March 25, 2011.

On June 10, 2011, Methodist renewed its Motion for Summary Judgment, based on

Ms. Young’s failure to disclose an expert witness. At the hearing on July 12, 2011, Ms.

Young admitted she had not timely disclosed the name of an expert witness regarding

Methodist’s negligence, but the trial court allowed Ms. Young an additional sixty (60) days

to disclose an expert witness. An order to that effect was entered on July 26, 2011.

5

(...continued)

be granted.”); see also State v. NV Sumatra Tobacco Trading Co., ––– S.W.3d ––––, 2013 WL 1248285,

at *9 (Tenn. 2013) (“Courts should give effect to the substance of motions rather than their form or title.”).

-6-

On December 12, 2011, Dr. Kennedy filed a Motion for Summary Judgment based

on the expiration of the statute of limitations. Dr. Kennedy later submitted depositions from

fact witnesses, including Ms. Young, to support her statute of limitations defense. Methodist

filed a joinder to this Motion on December 13, 2011.

The trial court eventually denied Methodist’s Motion for Summary Judgment on

January 5, 2012, noting that the theory of liability against Methodist was for vicarious

liability for the acts or omissions of Dr. Kennedy.

The trial court held a hearing on Dr. Kennedy’s Motion for Summary Judgment on

January 12, 2012. At the hearing, the trial court directed the parties to submit additional

briefs. According to Dr. Kennedy, Ms. Young did not argue that there were material factual

disputes that prevented granting summary judgment. Another hearing was held on March 6,

2012, in which the trial court orally granted Dr. Kennedy’s Motion for Summary Judgment

on the issue of the expiration of the statute of limitations. The trial court further ruled that

Summary Judgment should be granted in favor of Methodist, as it was only vicariously liable

for any negligence found to have been committed by Dr. Kennedy. An order to that effect

was entered on March 22, 2012, in which the trial court specifically found that Dr. Kennedy

had not waived the defense of the expiration of the statute of limitations for failure to raise

it in her initial Motion for Judgment on the Pleadings and that Ms. Young had notice that

the injury occurred, for purposes of the statute of limitations, on May 9, 2001 and June 6,

2001. Thus, the Complaint was filed beyond the one-year statute of limitations. Specifically,

the trial court stated:

[T]he Court finds that the Motion for Summary Judgment on

behalf of Dr. [] Lisa Kennedy and Methodist [] is well taken and

should be granted.

The Court finds as a matter of law that Dr. Kennedy did

not waive the statute of limitations defense. The Court finds that

Dr. Kennedy adequately pled the statute of limitations defense

in this action.

The Court finds as to Dr. Kennedy that the one year

statute of limitations, set forth in [Tennessee Code Annotated

Section] 29-26-116, accrued on May 9, 2002, because Ms. []

Young has notice that her husband, Mr. [] Young, suffered an

alleged injury on May 9, 2001, while a patient as Methodist

Hospital-North in Memphis, Shelby County, Tennessee. The

Court finds further that Ms. Young had notice of a second

alleged injury on June 6, 2001 at Methodist Hospital-North . . .

. Because [the] Complaint in this matter was not filed until June

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11, 2002, the statute of limitations set forth in [Tennessee Code

Annotated Section] 29-26-116 barred the claim. The action was

not filed within one year of Ms. Young’s notice on May 9, 2001

or on June 6, 2001. The cause of action as to Dr. Kennedy

should be dismissed, and summary judgment should be granted.

The Court further finds that because the action was

dismissed as to Dr. [] Kennedy, summary judgment should also

be granted as to Methodist []. Methodist [] is a Defendant in this

action only on a theory of vicarious liability for the action of the

Defendant Dr. [] Kennedy. Dr. Kennedy has been exonerated by

an adjudication of non-liability, and, therefore, the action against

Methodist [] is extinguished. Summary Judgment as to the

Defendant, Methodist [] should be granted. The Court finds as

a matter of law, based on the undisputed facts set forth herein,

that there are no genuine issues of material fact, and the

Defendants are entitled to summary judgment as a matter of law.

The trial court certified its ruling as final pursuant to Rule 54.02 of the Tennessee Rules of

Civil Procedure.6 Ms. Young filed a timely notice of appeal.

II. Issues Presented

Ms. Young raises the following issues, which are restated from her brief:

1. Whether the trial court erred in finding that Dr. Kennedy

6

Rule 54.02 of the Tennessee Rules of Civil Procedure Provides:

When more than one claim for relief is present in an action, whether as a

claim, counterclaim, cross-claim, or third party claim, or when multiple

parties are involved, the Court, whether at law or in equity, may direct the

entry of a final judgment as to one or more but fewer than all of the claims

or parties only upon an express determination that there is no just reason

for delay and upon an express direction for the entry of judgment. In the

absence of such determination and direction, any order or other form of

decision, however designated, that adjudicates fewer than all the claims or

the rights and liabilities of fewer than all the parties shall not terminate the

action as to any of the claims or parties, and the order or other form of

decision is subject to revision at any time before the entry of the judgment

adjudicating all the claims and the rights and liabilities of all the parties.

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did not waive the statute of limitations affirmative

defense under Rule 8.03 of the Tennessee Rules of Civil

Procedure?

2. Whether the trial court erred in finding that Dr. Kennedy

did not fail to prosecute the affirmative defense of the

statute of limitations?

3. Whether the trial court abused its discretion in finding

that Ms. Young failed to meet the appropriate statute of

limitations?

III. Analysis

A. Waiver

1. Waiver by Failure to Raise Affirmative Defense in First Motion

Ms. Young first argues that the trial court erred in concluding that Dr. Kennedy had

not waived the defense of the statute of limitations by failing to raise the defense in her first

Motion for Judgment on the Pleadings, filed on August 14, 2002, prior to the non-suit. Rule

8.03 of the Tennessee Rules of Civil Procedure governs affirmative defenses, such as the

statute of limitations. Rule 8.03 provides: “In pleading to a preceding pleading, a party shall

set forth affirmatively facts in short and plain terms relied upon to constitute . . . statute of

limitations, . . . and any other matter constituting an affirmative defense.” In addition, Rule

12.08 provides, in pertinent part, that any defenses not properly raised may be waived:

A party waives all defenses and objections which the party does

not present either by motion as hereinbefore provided, or, if the

party has made no motion, in the party’s answer or reply, or any

amendments thereto, (provided, however, the defenses

enumerated in 12.02(2), (3), (4) and (5) shall not be raised by

amendment), except (1) that the defense of failure to state a

claim upon which relief can be granted, the defense of failure to

join an indispensable party, the defense of lack of capacity, and

the objection of failure to state a legal defense to a claim may

also be made by a later pleading, if one is permitted, or by

motion for judgment on the pleadings or at the trial on the

merits, and except (2) that, whenever it appears by suggestion of

the parties or otherwise that the court lacks jurisdiction of the

subject matter, the court shall dismiss the action.

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Specifically, Ms. Young argues that Dr. Kennedy was required to either include her statute

of limitations defense in her first motion, i.e., the initial Motion for Judgment on the

Pleadings filed prior to the non-suit, or waive the defense. Because Dr. Kennedy failed to

raise the expiration of the statute of limitations in the August 14, 2002 motion, Ms. Young

contends that any argument regarding the alleged expiration of the statute of limitations is

waived.

To support this argument, Ms. Young relies on the Tennessee Supreme Court case of

Denny v. Webb, 281 S.W.2d 698 (Tenn. 1955). In Denny, the plaintiff filed a wrongful death

action against the defendant. The defendant filed an answer, but nothing in the record

suggested that the defendant pleaded the expiration of the statute of limitations. The

Complaint was later non-suited and re-filed within one-year of the non-suit. The defendant

then raised the issue of the expiration of the statute of limitations. The trial court entered

judgment for the plaintiff and the defendant appealed. The Court of Appeals held that the

claim was barred by the one-year statute of limitations for personal injuries. The Supreme

Court reversed the Court of Appeals and reinstated the trial court verdict, finding that the

issue of the expiration of the statute of limitations had been waived by the failure to properly

and timely plead it. Id. at 701. The Court explained:

In order to rely on the bar of the statute of limitations an

affirmative plea must be affirmatively plead[ed] by some

appropriate plea. If the statute is not plead[ed] in proper time

and manner it is deemed waived and cannot be set up as a

defense. Henderson v. Henderson, 158 Tenn. 452, 14 S.W.2d

714. Since the stipulation shows that to this first suit a plea of

the general issue had been filed, and there is no claim or

showing that a plea of the statute of limitations was filed in this

suit, then the inference clearly is to be drawn that the first suit

was filed within the year. Able counsel certainly would have

plead[ed] the statute to the first suit if it had not been filed in

time.

When the defendant was required to plead specially he

was required to expressly state all substantive facts relied on as

a defense. He stated in his first pleas or denied every

conceivable thing that one might think of. Some of these pleas

were stricken because they were merely doing what could be

done under the general issue. Even in the amended pleas

pleading specifically there is no mention anywhere at all that the

first suit was not filed within a year from the date of the

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accident. The only thing at all in these special pleas concerning

the statute of limitations is this plea of the statute of limitations

which is that suit was not brought within ‘one year before this

suit was brought’ clearly referring to the present suit.

Denny v. Webb, 281 S.W.2d at 701. Thus, the Court noted that: (1) the defendant failed to

raise the issue of the expiration of the statute of limitations in its initial answer after the first

suit was commenced; and (2) even after the non-suit, the defendant failed to properly plead

that the statute of limitations barred the claim due to its being filed more than one year after

the discovery of the injury; instead, the defendant merely pleaded that the second action was

filed more than one year from the non-suit. Accordingly, the Tennessee Supreme Court held

that the defense alleging that the one-year personal injury statute of limitations had expired

at the time the original suit was filed was waived by the defendant’s failure to timely and

properly plead it.

Dr. Kennedy argues that the Denny case is not analogous to the case-at-bar; therefore,

she contends that application of Denny should not result in a waiver of her statute of

limitations defense. Specifically, Dr. Kennedy points out that the defendant in Denny failed

to raise the expiration of the statute of limitations in its answer to the first complaint, rather

than in any pre-answer motion. Dr. Kennedy argues that the affirmative defense of the

expiration of the statute of limitations cannot be waived by failing to include the defense in

a pre-answer motion, as a motion is not a “responsive pleading,” and, therefore, waiver does

not apply. See Tenn. R. Civ. P. 12.02 (requiring that defenses be raised “in a responsive

pleading”). Dr. Kennedy cites this Court’s opinion in Mosby v. Colson, No. W2006-00490-

COA-R3-CV, 2006 WL 2354763 (Tenn. Ct. App. Aug. 14, 2006). In Mosby, this Court

stated that “[a] motion to dismiss is not a responsive pleading . . . .” Id. at *11. This

reasoning appears to be consistent with federal treatises on the subject. See 27 Fed. Proc., L.

Ed. § 62:98 (“Failure to raise an affirmative defense in a motion to dismiss does not mean

that the defense has been waived, since a motion to dismiss is not a pleading as defined by

the applicable rule, and therefore is not, in most cases, a responsive pleading.”). We note,

however, that the Mosby opinion concerned the issue of an amendment pursuant to Rule

15.01 of the Tennessee Rules of Civil Procedure, rather than waiver of affirmative defenses.

Mosby, 2006 WL 2354763, at *11. Indeed, Dr. Kennedy cites no cases in which Tennessee

courts have held that a motion to dismiss is not a responsive pleading for purposes of waiver

of defenses under Rule 12.08. Regardless, Dr. Kennedy argues that she was only required

to raise the issue of the expiration of the statute of limitations in her Answer, rather than in

any pre-answer motion.

In contrast, Ms. Young argues that Rule 12.08 does not require a “responsive

pleading” in order for waiver to apply. Instead, Ms. Young points to the plain language of

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the Rule, which states that defenses may be raised by answer “if the party has made no

motion.” Tenn. R. Civ. P. 12.08. Because Dr. Kennedy did make a motion, without raising

the affirmative defense of the statute of limitations, Ms. Young argues that such defense is

waived.

We agree with Dr. Kennedy’s interpretation of Rule 12.08, though we rely on different

reasons than those posited by Dr. Kennedy in her brief. Instead, we find Rule 12.02 of the

Tennessee Rules of Civil Procedure instructive on this issue. Rule 12.02 provides, in

pertinent part:

Every defense, in law or fact, to a claim for relief in any

pleading, whether a claim, counterclaim, cross-claim, or

third-party claim, shall be asserted in the responsive pleading

thereto if one is required, except that the following defenses

may at the option of the pleader be made by motion in writing:

(1) lack of jurisdiction over the subject matter, (2) lack of

jurisdiction over the person, (3) improper venue, (4)

insufficiency of process, (5) insufficiency of service of process,

(6) failure to state a claim upon which relief can be granted, (7)

failure to join a party under Rule 19, and (8) specific negative

averments made pursuant to Rule 9.01. A motion making any of

these defenses shall be made before pleading if a further

pleading is permitted. No defense or objection is waived by

being joined with one or more other defenses or objections in a

responsive pleading or motion.

(emphasis added). Accordingly, by the plain language of Rule 12.02, only certain defenses

may be raised by pre-answer motion. The defense of the expiration of the statute of

limitations is not among the defenses that may be raised by pre-answer motion. Thus, it

would be illogical to conclude that a defendant could waive its statute of limitations defense

by failing to raise such defense in a pre-answer motion, when Rule 12.02 does not permit the

expiration of the statute of limitation to be raised in a pre-answer motion.

Instead, the only way to raise the defense of the expiration of the statute of limitations

by pre-answer motion is on the basis of Rule 12.02(6) for “failure to state a claim upon which

relief can be granted.” Indeed, courts of this State have consistently referred to a motion to

dismiss based on the expiration of the statute of limitations as being a motion to dismiss for

failure to state a claim upon which relief can be granted under Rule 12.02(6). See, e.g.,

Redwing v. Catholic Bishop for Diocese of Memphis, 363 S.W.3d 436, 463–64 (Tenn.

2012) (considering a Rule 12.02(6) motion on the basis of the alleged expiration of the

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statute of limitations); Swafford v. Comm’r of Revenue, No. M2011-00913-COA-R3-CV,

2012 WL 840648, at *1 (Tenn. Ct. App. March 13, 2012) (noting that the defendant filed a

motion to dismiss for failure to state a claim upon which relief can be granted on the ground

that the statute of limitations had expired); McConnell v. Fuller, No.

E2010-00530-COA-R3-CV, 2011 WL 538855, at *1 (Tenn. Ct. App. Feb. 15, 2011)

(considering the defendant’s motion to dismiss for failure to state a claim upon which relief

can be granted on the ground that the statute of limitations had expired); Cunningham v.

Jones, 274 S.W.3d 659, 662 (Tenn. Ct. App. 2008) (determining whether the trial court erred

in granting the defendant’s motion to dismiss for failure to state a claim upon which relief

can be granted on the basis that the one-year medical malpractice statute of limitations had

expired). Rule 12.08 provides that a motion for failure to state a claim upon which relief can

be granted is not waived by failure to raise such defense in a pre-answer motion. Instead, the

Rule provides that a motion to dismiss for failure to state a claim “may also be made by a

later pleading, if one is permitted, or by motion for judgment on the pleadings or at the trial

on the merits.” Tenn. R. Civ. P. 12.08. Thus, the defense of the statute of limitations is not

waived by the failure of the defendant to raise the defense in a pre-answer motion.

Our decision is in accord with both federal law, as discussed above, and Tennessee

jurisprudence. See also United States v. Valdez, 195 F.3d 544, 548 (9th Cir. 1999)

(“government only filed a motion to dismiss . . . and never filed an answer to the . . . motion.

We thus deem it premature, at this stage, to hold that the government has waived any possible

procedural default defense.”); U.S. v. Burzynski Cancer Research Institute, 819 F.2d 1301

(5th Cir. 1987) (holding that because the defendants initial motions were not “responsive,”

the defendant had not waived their affirmative defense by failing to include it in the initial

motions); Serrano v. Torres, 764 F.2d 47, 49 (1st Cir. 1985) (“There is . . . no requirement

under Rule 12 to affirmatively raise the statute of limitations defense by motion.”); Bennett

v. Mueller, 364 F. Supp. 2d 1160 (C.D. Cal. 2005) (“[A] a motion to dismiss is not a

pleading as defined by Fed. R. Civ. P. 7(a), and therefore is not, in most cases, a responsive

pleading as defined by Fed. R. Civ. P. 12. Accordingly, failure to raise an affirmative defense

in a motion to dismiss does not mean that the defense has been waived.”); Daingerfield

Island Protective Soc'y v. Lujan, 797 F.Supp. 25, 29 (D.D.C.1992) (“While it is the general

practice to raise a statute of limitations defense by motion under Rule 12(b)(6), it is not an

error to fail to do so . . . . [T]his defense cannot be waived by the failure to interpose it in a

motion under Rule 12.”). Tennessee Civil Procedure discusses the application of Rule 12.08

in this context in detail:

Just as federal courts did with Rule 12.08’s federal

predecessor, Tennessee courts have generally applied Tennessee

Rule 12.08 without strict adherence to its text. In fact, although

courts have cited the rule frequently, they have almost never

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attempted to construe the precise language of Rule 12.08. This

latter phenomenon, given the rule, is simply carrying to a higher

level the maxim that “Equity will not do a vain act.”

On the assumption that Rule 12.08 should have some

meaning, we suggest that it be read to give effect to its intent

and, to the extent possible, its text. If Rule 12.08 is not to

produce absurd results, the provision for waiver of defenses

should be read as referring only to those defenses that may

be raised by a Rule 12.02 pre-answer motion. When Rule

12.08 is so limited, its natural and probable meaning is as

follows:

A. A party may raise the following "defenses" by answer or

by pre-answer motion:

1. lack of jurisdiction over the subject matter;

2. lack of jurisdiction over the person;

3. improper venue;

4. insufficiency of process;

5. insufficiency of service of process;

6. failure to state a claim on which relief can be granted;

7. failure to join an indispensable party; and

8. the lack of capacity of a party to sue or be sued.

B. A party who files a pre-answer motion pursuant to Rule

12.02 waives any of the following defenses that are not included

in the motion:

1. lack of jurisdiction over the person;

2. improper venue;

3. insufficiency of process; and

4. insufficiency of service of process.

C. A party who does not file a pre-answer motion pursuant to

Rule 12.02 waives any of the following defenses by not

including them in his first answer:

1. lack of jurisdiction over the person;

2. improper venue;

3. insufficiency of process; and

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4. insufficiency of service of process.

* * *

E. The defenses of failure to state a claim, failure to join a

party required to be joined by Rule 19, and lack of capacity may

be raised by pre-answer motion or by answer, and none of

the three defense[s] is irrevocably waived by failure to raise

it in a previous motion or pleading. These defenses may also

be presented by post-answer motion, such as one for judgment

on the pleadings, or at the trial on the merits.

Robert Banks, Jr., & June F. Entman, Tennessee Civil Procedure, § 5-6(v) (3d ed. 2012)

(footnotes omitted) (emphasis added). Tennessee Civil Procedure acknowledges, however,

that:

[The above interpretation of Rule 12.08] is inconsistent with a

literal reading of Rule 12.08’s first proposition. As pointed out,

subject to three exceptions, Rule 12.08 read literally permits a

party to raise any defense by answer or reply, or by amendment

thereto, only if the party has filed no motion. Thus, if a

defendant responds to the complaint by filing a pre-answer

motion to dismiss on grounds of lack of personal jurisdiction

and insufficiency of service of process, the defendant has (with

three exceptions) waived all other defenses, including statute of

limitations, res judicata, estoppel, and lack of capacity to sue or

be sued (except to the extent those defenses can be assimilated

under the umbrella of “failure to state a claim”). Having

previously filed a motion not raising the defenses of failure of

consideration and res judicata, for example, the defendant may

not present those defenses in an answer filed after the motion to

dismiss has been denied. Or, when a party has made a

post-answer motion for judgment on the pleadings based upon

the defendant's failure to state a claim, the party cannot amend

his or her answer to plead the defense of estoppel if it had not

previously been raised.

Tennessee Civil Procedure, at § 5-6(w) (footnotes omitted). According to Tennessee Civil

Procedure, however: “Such a reading of Rule 12.08, although literally correct, would lead

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to absurd results and the Tennessee courts have largely ignored the literal text of the rule.”

Tennessee Civil Procedure, at § 5-6(w). As explained by the treatise:

The troublesome phrase in Rule 12.08, “all defenses and

objections which the party does not present either by motion as

herein above provided, or, if the party has made no motion, in

the party's answer or reply, or amendments thereto,” is qualified

by the parenthetical providing that the four dilatory defenses

may not be raised by an amendment to an answer. The current

treatment in federal courts of these four defenses is now found

in Federal Rule 12(h)(1), which provides that a party waives any

of the four dilatory defenses that are omitted in a pre-answer

motion or, if the party filed no pre-answer motion, in the party's

answer or an amendment thereto permitted to be filed as a

matter of course.

The apparent intent of Rule 12.08 was to provide a

similar provision for waiver, while eliminating the option of

raising any of these four defenses by amendment to the answer.

A pleader should assume, therefore, that the defenses of lack of

personal jurisdiction, improper venue, insufficiency of process,

and insufficiency of service of process will be waived if not

included in the pleader’s first response to the complaint, whether

it be by answer or a Rule 12.02 motion. A party who has raised

one or more of these defenses in the party's original response to

the complaint, whether by motion or by answer, does not waive

the defense by defending on the merits.

Tennessee Civil Procedure, at § 5-6(w) (footnotes omitted).

Based on the foregoing, we likewise conclude that a party does not waive its statute

of limitations defense by failing to raise such defense in its pre-answer motion. Instead, the

defense may be raised by a motion to dismiss for failure to state a claim upon which relief

can be granted, or in the party’s answer to the complaint, regardless of whether a pre-answer

motion has been filed. Turning to the record, we conclude that Dr. Kennedy timely raised her

statute of limitations defense. Not only did Dr. Kennedy raise the defense in her first Answer

to Ms. Young’s Complaint, but she also raised the defense in a Motion to Dismiss for failure

to state claim upon which relief can be granted prior to filing her Answer in this case.

Accordingly, the trial court correctly concluded that Dr. Kennedy had not waived the defense

by failing to timely raise it.

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2. Waiver by Failure to Affirmatively Plead Short and Plain Facts

Ms. Young next argues that Dr. Kennedy waived the defense of the expiration of the

statute of limitations by failing to sufficiently plead the defense. As previously discussed,

Rule 8.03 requires that in order to adequately plead all affirmative defenses, including the

statute of limitations, “a party shall set forth affirmatively facts in short and plain terms relied

upon to constitute” the defense. In addition, the Tennessee Supreme Court has held that

although Rule 12.08, regarding waiver, does not contain a specificity requirement, Rule 8.03

“clearly does.” Barker v. Heekin Can Co., 804 S.W.2d 442, 444 (Tenn. 1991); see also

Pratcher v. Methodist Healthcare Memphis Hospitals, --- S.W.3d ----, 2013 WL 3270836,

at *7 (Tenn.2013) (“Rule 8.03 clearly contains a ‘specificity requirement.’”). “‘Conclusory

allegations’ do not satisfy the specificity requirements of Rule 8.03.” Pratcher, 2013 WL

3270836, at *7 (quoting ACG, Inc. v. Se. Elevator, Inc., 912 S.W.2d 163, 170 (Tenn. Ct.

App.1995)).

In this case, Ms. Young argues that Dr. Kennedy failed to set forth specific,

“affirmative facts in short and plain terms relied upon to constitute” her defense. See Tenn.

R. Civ. P. 8.03.To support her argument, Ms. Young relies on this Court’s opinion in Allgood

v. Gateway, 309 S.W.3d 918 (Tenn. Ct. App. 2009). In Allgood, the defendant, Dr. Hoffman,

filed an answer raising the defense of insufficiency of service of process. Insufficiency of

service of process, like the expiration of the statute of limitations, is an affirmative defense

pursuant to Rule 8.03 of the Tennessee Rules of Civil Procedure. Dr. Hoffman later filed a

motion for summary judgment on the same basis. The trial court granted the motion. This

Court reversed, holding that Dr. Hoffman failed to set forth sufficient facts in his answer

regarding the insufficiency of service of process defense. The Court stated:

The [plaintiffs] insist that Dr. Hoffman’s answer did not comply

with Rule 8.03’s requirement that a party “set forth affirmatively

facts in short and plain terms relied upon to constitute” that

party’s affirmative defenses. Tenn. R. Civ. P. 8.03. Although Dr.

Hoffman’s answer stated that he was challenging service of

process “on grounds that the return certifying service of process

on [Dr. Hoffman] shows that he was served by the

commissioner of insurance through the U.S. mail,” the

[plaintiffs] allege that it does not comply with Rule 8.03 because

it misstates the factual basis for the defense, and does not state

that Dr. Hoffman is challenging the attempted personal service

on the basis that no one at [Dr. Hoffman’s office] was

authorized to accept service of process on his behalf.

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Allgood, 309 S.W.3d at 923. Thus, the plaintiffs argued that the defendant had not set forth

specific facts to constitute the defense because the answer not only failed to state the specific

facts supporting the defense, but instead asserted other facts that were not pertinent to the

defense. Accordingly, the plaintiffs argued that they were not put on reasonable notice of the

defendant’s defense and that such defense should be deemed waived. The Court of Appeals

agreed, relying on the Tennessee Supreme Court case of Barker v. Heekin Can Co., 804

S.W.2d 442 (Tenn. 1991). As explained in Allgood:

In Barker, the plaintiff initiated a worker’s compensation

action against her employer, the Heekin Can Company, for an

injury allegedly sustained during the course of her employment.

The plaintiff's first summons was returned un-executed, with the

following notation by the process server: “no longer in business

here; sold out.” Between the time of the plaintif’'s purported

injury and the commencement of her action, Heekin Can sold its

Memphis plant to an entity known as Peacher Schwank Plastics.

An alias summons was then issued, directed to “Heekin Can

Company, a/k/a Pearcher [sic] and Schwank Plastics.” The

return of service had the following notation: “served process ...

by delivering . . . a copy of the summons and a copy of the

complaint to . . . Heekin Can Company, a/k/a Pearcher [sic] and

Schwank Plastics, by serving: Harold Townsend, Gen. Mgr.”

Heekin Can filed an answer and a motion to dismiss in its

answer, stating the following grounds: . . . “That there has been

an insufficiency of service of process in this cause.” The motion

included no factual allegations to support th[is] ground[].

Several years later, the defendant filed a motion for summary

judgment, alleging that Heekin Can and Peacher Schwank

Plastics were separate entities, with their only relationship being

that of buyer and seller of the Memphis plant, and therefore, the

service made on Peacher Schwank Plastics was insufficient as

to Heekin Can. The trial court granted summary judgment in

favor of Heekin Can. The plaintiff appealed.

The Tennessee Supreme Court reversed the decision of

the trial court, holding that Heekin Can waived the defense of

insufficiency of service of process by failing to include “in its

motion to dismiss a recitation of those facts, ‘in short and plain

terms,’ upon which it was relying for dismissal” as required by

Rule 8.03. It found that the defendant should have stated in the

motion to dismiss that Heekin Can and Peacher Schwank

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Plastics were separate entities, that Mr. Townsend did not have

authority to accept service of process for Heekin Can, and that

Heekin Can no longer did business in Tennessee. The Court

explained:

The reason for such a rule is obvious. As

noted in Goss [v. Hutchins, 751 S.W.2d 821

(Tenn. 1988)], the filing of a “specific negative

averment will likely result in a prompt curative

amendment by plaintiff,” thus preventing the

dismissal of an otherwise meritorious claim on

purely technical grounds.

Barker, 804 S.W.2d at 444.

Allgood, 309 S.W.3d at 923–24 (footnotes omitted) (internal citations omitted) (citing

Barker, 804 S.W.2d at 442–44).

Relying on the precedent set in Barker, the Allgood Court concluded that the

defendant doctor had likewise not set forth sufficient facts to support his insufficiency of

service of process defense. The Court of Appeals explained:

Insufficiency of service of process is an affirmative

defense that must be presented in the defendant’s answer or in

a pre-answer motion. Tenn. R. Civ. P. 12.02(5); see Eaton, 2008

WL 4963512, at *3. Although Rule 12 does not contain a

specificity requirement, Rule 8 “clearly does.” Barker, 804

S.W.2d at 444. Rule 8.03 requires that a party “set forth

affirmatively facts in short and plain terms relied upon to

constitute . . . an affirmative defense.” Tenn. R. Civ. P. 8.03.

Failure to comply with Rule 8.03 will result in a waiver of the

defense. Barker, 804 S.W.2d at 444.

Like the defendant in Barker, Dr. Hoffman sought

dismissal of the complaint in his answer, asserting the defense

of insufficiency of service of process. Unlike the defendant in

Barker, Dr. Hoffman included in his answer facts that were

known to him at the time.

Dr. Hoffman argues that he satisfied Rule 8.03 because

the facts in his answer provided the Allgoods with the same

notice that they would have received had he pled the facts that

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he later discovered, namely “that a possible defect in the manner

of service of process exists.” We respectfully disagree. This type

of general notice was clearly found inadequate by the Supreme

Court in Barker. If simply putting the plaintiff on notice that

there may be a problem with service of process were enough to

satisfy Rule 8.03, then the Barker Court would not have found

the defense to have been waived, because the defendant in

Barker stated in its answer “[t]hat there has been an

insufficiency of service of process in this cause.” [Barker, 804

S.W.2d] at 443. Barker clearly holds that mere notice of a

possible problem is insufficient to satisfy Rule 8.03. Rather,

Rule 8.03 requires that a defendant state the facts that support

the defense.

* * *

Dr. Hoffman rightly argues that he cannot be expected to

include facts in his answer that were unknown to him. However,

when the return of service was filed, Dr. Hoffman became aware

that the facts alleged in his answer to support his defense were

not accurate. As in Barker, this fact was “peculiarly within the

knowledge of” Dr. Hoffman. [Barker, 804 S.W.2d] at 444.

Despite this, there was no attempt by Dr. Hoffman to amend his

answer or otherwise correct the misimpression created. Indeed,

the misstated facts in Dr. Hoffman's answer were, from the

Plaintiffs’ perspective, worse than having stated no facts at all;

when considered with Dr. Hoffman's failure to address

insufficiency of service of process in response to the Allgoods’

interrogatory, this could have led the Plaintiffs to conclude that

the original service of process on Dr. Hoffman was in fact

effective.

Allgood, 309 S.W.3d at 925. Thus, the Allgood opinion stands for the proposition that in

order to avoid waiving an affirmative defense, the defendant must affirmatively state, with

some specificity, the facts relied upon to support that defense. Accordingly, we turn to the

record to determine whether Dr. Kennedy waived her statute of limitations defense by failing

to plead sufficient facts to support it.

As previously discussed, the first time the statute of limitations defense was raised in

this case was in Dr. Kennedy’s August 24, 2004 Motion to Dismiss, alleging, inter alia,

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failure to state a claim upon which relief can be granted. We agree with Ms. Young that there

are no facts to support the defense included in this motion. Instead, the Motion to Dismiss

merely recites that “the case is time-barred by the applicable statute of limitations.” However,

on April 22, 2005, Dr. Kennedy filed a Memorandum in support of her Motion to Dismiss.

Ms. Young cites no law in which the facts supporting a statute of limitations defense were

held insufficient simply for being included in a Memorandum filed subsequent to the motion

or answer alleging the defense. Additionally, although this Memorandum was filed nearly

a year after the filing of the Motion to Dismiss, no pleadings were filed in the interim in the

trial court. Thus, between the filing of the Motion to Dismiss and the Memorandum in

support, Ms. Young took absolutely no action in the trial court. Accordingly, Ms. Young

cannot show that she was prejudiced by the delay. Thus, we will consider whether the facts

contained in the Memorandum are sufficient to meet the requirements under Rule 8.03.

The Memorandum contains a timeline of the facts alleged in Ms. Young’s Complaint,

which facts Dr. Kennedy argues support her statute of limitations defense. Specifically, the

Memorandum states:

A timeline of significant events is as follows:

1. April 3, 2001 - Dr. Kennedy performed a bronchoscopy

on Mr. Young.

2. May 9, 2001 - According to [Ms. Young’s] complaint,

Mr. Young’s condition began to deteriorate and Dr.

Kennedy was allegedly called. [Ms. Young] alleges in

her complaint that Dr. Kennedy did not respond. There

are no allegations in either Complaint that Dr. Kennedy

saw Mr. Young after this date.

3. June 6, 2001 - Mr. Young slipped into a coma, according

to [Ms. Young’s] complaint.

4. June 12, 2001- Mr. Young died.

5. June 11, 2002 - [Ms. Young] files her original complaint.

* * *

[Tennessee Code Annotated Section] 29-26-116 provides

the statute of limitations in a malpractice action shall be one

year. The statute further provides that, in the event the alleged

injury is not discovered within the one year period, the period of

limitations shall be one year from the date of discovery.

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In the present case, the plaintiff alleges that Dr. Kennedy

performed a bronchoscopy on Mr. Young on April 3, 2001.

There are no allegations of negligence as to Dr. Kennedy after

May 9, 2001. However, the plaintiff filed her original Complaint

on June 11, 2002, over one year after the last act of alleged

negligence.

Despite these facts, Ms. Young argues that Dr. Kennedy failed to meet her burden to

plead affirmative facts in support of her statute of limitations defense. Specifically, Ms.

Young argues that Dr. Kennedy failed to include additional facts known to her at the time

of filing the Motion to Dismiss, including facts regarding the JCAHO complaint and the

Tennessee Department of Health investigation. Without setting forth some facts outside the

initial Complaint, Ms. Young argues, Dr. Kennedy has failed to set forth “affirmative facts

to support a statute of limitations defense.”

We respectfully disagree. Essentially, Ms. Young argues that Dr. Kennedy has not

asserted any “affirmative facts” to support a statute of limitations defense because Dr.

Kennedy has asserted no facts that were not contained in the Complaint. According to Ms.

Young, the only facts that are affirmative are those that have not yet been pleaded by the

plaintiff. First, we note that Ms. Young misapprehends the language of Rule 8.03. Ms. Young

contends that Rule 8.03 requires the defendant to set forth “affirmative facts,” i.e. as-yet-

unpleaded or unknown facts. However, this reading is not supported by the plain language of

the Rule. Instead, Rule 8.03 merely requires that the defendant set forth the facts supporting

the defense “affirmatively.” While subtle, this is an important distinction. From our reading

of the plain language of Rule 8.03, the term “affirmatively” describes not the facts that must

be pleaded, but the defendant’s action in pleading them. Indeed, the term “affirmative” is

defined as “that which declares positively.” Black’s Law Dictionary 55 (5th ed. 1979).

Accordingly, Rule 8.03 does not require a defendant to set forth previously unpleaded facts

to support his or her defense, but instead requires that the defendant plead facts supporting

his or her defense in an affirmative, or positive, manner. Therefore, while Rule 8.03 requires

Dr. Kennedy to set forth the facts that support her defense affirmatively, nothing in Rule 8.03

requires that these facts come from outside the Complaint. Specifically, in this case, the

Complaint contains detailed allegations regarding the dates of all acts by Dr. Kennedy alleged

to be negligent. Dr. Kennedy’s Motion to Dismiss likewise contains facts, positively set forth,

that if undisputed, would support a finding that Ms. Young failed to file her initial Complaint

within the applicable statute of limitations. Further, the allegations contained in Dr.

Kennedy’s Memorandum are facts rather than mere “conclusory allegations.” See Pratcher,

2013 WL 3270836, at *7. Thus, they are sufficient to plead a statute of limitations defense.

Further, we fail to comprehend how the omission of the facts regarding the JCAHO

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Complaint and the Tennessee Department of Health investigation prejudiced Ms. Young in

responding to Dr. Kennedy’s defense, nor do we discern how the facts that were pleaded

failed to sufficiently notify Ms. Young of the circumstances underlying Dr. Kennedy’s statute

of limitations defense. While the Tennessee Supreme Court has held that Rule 8.03 contains

a specificity pleading requirement, nothing in the Rule or in Tennessee jurisprudence suggests

that the defendant must plead every fact known to him or her that could possibly be

considered in their statute of limitations defense. Indeed, despite the specificity requirement

contained in Rule 8.03, Tennessee continues to follow a notice pleading scheme. As explained

by the Tennessee Supreme Court in George v. Building Materials Corp., 44 S.W.3d 481, 487

(Tenn. 2001):

Rule 8.03 of the Tennessee Rules of Civil Procedure

requires that a statute of limitations defense be specifically

pleaded. See also Sands v. State, 903 S.W.2d 297, 299

(Tenn.1995); Travelers Ins. Co. v. Austin, 521 S.W.2d 783, 785

(Tenn. 1975). Generally, failure to do so results in a waiver of the

defense. Tenn. R. Civ. P. 12.08; see also Denny v. Webb, 199

Tenn. 39, 44–45, 281 S.W.2d 698, 701 (1955); Steed Realty v.

Oveisi, 823 S.W.2d 195, 197 (Tenn. Ct. App. 1991). It is well

settled, however, that if the opposing party is given fair notice of

the defense and an opportunity to rebut it, failure to specifically

plead a statute of limitations defense will not result in a waiver.

Sands, 903 S.W.2d at 299. “In other words, the purpose of the

specific pleading requirement is to prevent a party from raising

a defense at the last possible moment and thereby prejudicing the

opposing party’s opportunity to rebut the defense.” Id.

George, 44 S.W.3d at 486–87. This Court, in Amber Brazilian Export Resources, Inc. v.

Crown Laboratories, Inc., No. E2011-01616-COA-R3-CV, 2012 WL 982969 (Tenn. Ct. App.

March 21, 2012) (perm. app. denied Aug. 15, 2012), noted that “the key question is generally

whether the opposing party had sufficient notice of the defense to attempt to rebut it.” Id. at

*3 (citing George, 44 S.W.3d at 486–87). Instead of requiring the defendant to plead every

fact known to it that could possibly support its defense, “[t]he specific pleading requirements

of Tenn. R. Civ. P. 8.03 are designed to prevent trial by ambush[.]” George, 44 S.W.3d at

487.

There is no doubt in this case that Ms. Young was given sufficient notice of Dr.

Kennedy’s statute of limitations defense. Dr. Kennedy pleaded specific facts that supported

her argument that any negligence on the part of Dr. Kennedy occurred, and was known to Ms.

Young, more than one year prior to the commencement of this action. Specifically, Dr.

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Kennedy noted that Ms. Young alleged no action on her part after May 9, 2001 that could be

the basis of a finding of liability against Dr. Kennedy. Based on these facts, Dr. Kennedy

argued that the statute of limitations was triggered on or around this date, and Ms. Young’s

Complaint, which was filed more than one year from May 9, 2001, was untimely. These are

essentially the same facts that were relied upon in Dr. Kennedy’s later Motion for Summary

Judgment, which was ultimately granted by the trial court. Accordingly, we decline to hold

that Dr. Kennedy waived her statute of limitations defense by failing to include other facts that

were not included in Ms. Young’s Complaint.

In addition, Dr. Kennedy pleaded the statute of limitations defense in a timely manner

and did not fail to prosecute the defense, as argued by Ms. Young. Ms. Young relies on the

Court of Appeals’ opinion in Spring Cress Realty, L.L.C. v. Brown, No. E2010-00615-COA-

R3-CV, 2011 WL 1872712 (Tenn. Ct. App. May 16, 2011). In Spring Cress, the defendant

raised the defense of the statute of limitations without including any factual allegations to

support the defense. Id. at *5. The Court concluded that the defendant waived the defense by

pleading it in “a conclusory, abstract sense without alleging any facts.” Id. The Court went

on, however, in dicta, to hold that even had the statute of limitations defense been properly

pleaded, then the defendant failed to prosecute the defense because the motion was never

scheduled for hearing or otherwise brought to the attention of the trial court. Id. at *1, 5–6.

In addition, the defendant later filed an answer and a counterclaim in the case, in which he

failed to raise the statute of limitations defense. Id. at *1–2. The case ultimately resulted in

a bench trial in which the plaintiff was awarded damages. Id. at *2–5. The defendant then

raised the expiration of the statute of limitations in his appellate brief. Id. at *5. The situation

in Spring Cress is not analogous to this case. In this case, Dr. Kennedy filed not only two

Motions to Dismiss, but also an Answer, and a Motion for Summary Judgment, all alleging

that Ms. Young’s Complaint was filed after the expiration of the statute of limitations. The

record is clear that this defense was brought to the trial court’s attention because the trial court

eventually granted Dr. Kennedy’s Motion for Summary Judgment, sustaining her statute of

limitations defense. Under these circumstances, we cannot conclude that Dr. Kennedy failed

to prosecute her defense. Accordingly, the trial court’s ruling that Dr. Kennedy sufficiently

pleaded her statute of limitations defense is affirmed.

B. Summary Judgment

Ms. Young’s final issue concerns the trial court’s grant of summary judgment to Dr.

Kennedy, and by extension, Methodist,7 on the basis of the expiration of the statute of

7

As previously discussed, the trial court granted summary judgment to Dr. Kennedy on the basis of

the expiration of the statute of limitations. After granting summary judgment to Dr. Kennedy, the trial court

(continued...)

-24-

limitations. Because this case was adjudicated by summary judgment, we first note that a trial

court’s decision on a motion for summary judgment presents a question of law. Our review

is, therefore, de novo with no presumption of correctness afforded to the trial court's

determination. Bain v. Wells, 936 S.W.2d 618, 622 (Tenn. 1997). “This Court must make a

fresh determination that the requirements of Tennessee Rule of Civil Procedure 56 have been

satisfied.” Mathews Partners, L.L.C. v. Lemme, No. M2008-01036-COA-R3-CV, 2009 WL

3172134, at *3 (Tenn. Ct. App. Oct. 2, 2009) (citing Hunter v. Brown, 955 S.W.2d 49, 50–51

(Tenn. 1977)).

When a motion for summary judgment is made, the moving party has the burden of

showing that “there is no genuine issue as to any material fact and the moving party is entitled

to judgment as a matter of law.” Tenn. R. Civ. P. 56.04. The moving party may accomplish

this by either: (1) affirmatively negating an essential element of the non-moving party’s claim;

or (2) showing that the non-moving party will not be able to prove an essential element at

trial. Hannan v. Alltel Publ'g Co., 270 S.W.3d 1, 8–9 (Tenn. 2008). However, “[i]t is not

enough for the moving party to challenge the nonmoving party to ‘put up or shut up’ or even

to cast doubt on a party's ability to prove an element at trial.” Id. at 8. If the moving party's

motion is properly supported, “[t]he burden of production then shifts to the nonmoving party

to show that a genuine issue of material fact exists.” Id. at 5 (citing Byrd v. Hall, 847 S.W.2d

208, 215 (Tenn. 1993)). The non-moving party may accomplish this by: “(1) pointing to

evidence establishing material factual disputes that were overlooked or ignored by the moving

party; (2) rehabilitating the evidence attacked by the moving party; (3) producing additional

evidence establishing the existence of a genuine issue for the trial; or (4) submitting an

affidavit explaining the necessity for further discovery pursuant to Tenn. R. Civ. P. 56.06.”

Martin v. Norfolk S. Ry. Co., 271 S.W.3d 76, 84 (Tenn. 2008) (citations omitted).

When reviewing the evidence, we must determine whether factual disputes exist. In

evaluating the trial court's decision, we review the evidence in the light most favorable to the

non-moving party and draw all reasonable inferences in the non-moving party's favor. Stovall

v. Clarke, 113 S.W.3d 715, 721 (Tenn. 2003). If we find a disputed fact, we must “determine

whether the fact is material to the claim or defense upon which summary judgment is

7

(...continued)

ruled that Ms. Young’s only cause of action against Methodist was for vicarious liability for the acts or

omissions of Dr. Kennedy. The trial court further ruled that because no liability could attach to Dr. Kennedy

due to the expiration of the statute of limitations, no liability could attach to Methodist for Dr. Kennedy’s

alleged acts or omissions. The trial court, therefore, granted summary judgment to Methodist, as well. Ms.

Young does not argue on appeal that the trial court erred in concluding that Methodist’s liability was based

on the liability of Dr. Kennedy. Instead, Ms. Young only argues that the trial court erred in granting summary

judgment to Dr. Kennedy on the basis of the statute of limitations, thereby also requiring summary judgment

be granted to Methodist.

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predicated and whether the disputed fact creates a genuine issue for trial.” Mathews Partners,

2009 WL 3172134, at *3 (citing Byrd, 847 S.W.2d at 214). “A disputed fact is material if it

must be decided in order to resolve the substantive claim or defense at which the motion is

directed.” Byrd, 847 S.W.2d at 215. A genuine issue exists if “a reasonable jury could

legitimately resolve the fact in favor of one side or the other.” Id. “Summary [j]udgment is

only appropriate when the facts and the legal conclusions drawn from the facts reasonably

permit only one conclusion.” Landry v. South Cumberland Amoco, et al., No. E2009-01354-

COA-R3-CV, 2010 WL 845390, at *3 (Tenn. Ct. App. March 10, 2010) (citing Carvell v.

Bottoms, 900 S.W.2d 23 (Tenn. 1995)). However, if there is any uncertainty concerning a

material fact, then summary judgment is not the appropriate disposition. As stated by our

Supreme Court in Evco Corp. v. Ross, 528 S.W.2d 20 (Tenn. 1975):

The summary judgment procedure was designed to provide a

quick, inexpensive means of concluding cases, in whole or in

part, upon issues as to which there is no dispute regarding the

material facts. Where there does exist a dispute as to facts which

are deemed material by the trial court, however, or where there

is uncertainty as to whether there may be such a dispute, the duty

of the trial court is clear. He [or she] is to overrule any motion for

summary judgment in such cases, because summary judgment

proceedings are not in any sense to be viewed as a substitute for

a trial of disputed factual issues.

Id. at 24–25.

As previously discussed, Ms. Young filed this action on June 11, 2001. Although the

initial case was later non-suited and re-filed pursuant to the Saving Statute,8 the dispositive

question in this case is whether factual disputes exist regarding whether the initial suit was

filed within the applicable statute of limitations. Only if the initial suit was filed within the

applicable statute of limitations will the Saving Statute operate to revive the claim. See Tenn.

8

Tennessee Code Annotated Section 28-1-105(a), commonly referred to as the Saving Statute,

provides:

If the action is commenced within the time limited by a rule or statute of

limitation, but the judgment or decree is rendered against the plaintiff upon

any ground not concluding the plaintiff's right of action, or where the

judgment or decree is rendered in favor of the plaintiff, and is arrested, or

reversed on appeal, the plaintiff, or the plaintiff’s representatives and

privies, as the case may be, may, from time to time, commence a new action

within one (1) year after the reversal or arrest.

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Code Ann. § 28-1-105(a) (requiring that the original action be “commenced within the time

limited by a rule or statute of limitation”). Accordingly, we turn to consider the applicable

statute of limitations as applied to the facts in the record.

Because this is a medical malpractice action, the applicable statute of limitations is set

forth in Tennessee Code Annotated Section 29-26-116. Section 29-26-116 provides, in

pertinent part:

(a)(1) The statute of limitations in health care liability9 actions

shall be one (1) year as set forth in § 28-3-104.10

(2) In the event the alleged injury is not discovered within such

one-year period, the period of limitation shall be one (1) year

from the date of such discovery.

As stated in subsection (2), however, the medical malpractice statute of limitations is subject

to the discovery rule. Our Supreme Court recently explained the discovery rule in medical

malpractice actions:

In Teeters v. Currey, 518 S.W.2d 512, 517 (Tenn. 1974), this

Court adopted the majority rule among the states that a medical

malpractice action does not accrue until “the patient discovers, or

in the exercise of reasonable care and diligence for his own

health and welfare, should have discovered the resulting injury.”

The Court concluded that no rule of law should require “that a

plaintiff file suit prior to knowledge of his injury or . . . sue to

vindicate a nonexistent wrong, at a time when [the] injury is

unknown and unknowable.” Id. at 515; see also Foster v. Harris,

633 S.W.2d 304, 305 (Tenn. 1982) (“The so-called ‘discovery

doctrine’ was fashioned to alleviate the intolerable result of

barring a cause of action by holding that it ‘accrued’ before the

discovery of the injury or the wrong.”).

9

In 2012, the Tennessee General Assembly saw fit to amend sections of the Medical Malpractice

Act to change the term used to describe actions against doctors and hospitals for professional negligence

from “medical malpractice” to “health care liability.” See 2012 Tenn. Pub. Acts, ch. 798, § 1–59. Because

this case was filed prior to the amendments, we will refer to this action by its previous title. The 2012

amendment to replace “medical malpractice” with “health care liability” had no substantive effect on the

operation of the statute to this case.

10

Tennessee Code Annotated Section 28-3-104 places a one-year statute of limitations on several

different causes of action, including for “[a]ctions for . . . injuries to the person[.]”

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One year after our opinion in Teeters, the General

Assembly codified the discovery rule as part of the Medical

Malpractice Review Board and Claims Act of 1975, ch. 299, §

15(a), 1975 Tenn. Pub. Acts 662, 671, which instituted both the

one-year statute of limitations and a three-year statute of repose

in medical malpractice actions. The language enacted in 1975 is

nearly identical to the current form of the discovery rule: “In the

event the alleged injury is not discovered within such one (1)

year period, the period of limitation shall be one (1) year from the

date of such discovery.” Tenn. Code Ann. § 29-26-116(a)(2).

The application of this seemingly innocuous provision has been

the focus of voluminous litigation in Tennessee since its

enactment.

Sherrill v. Souder, 325 S.W.3d 584, 592–93 (Tenn. 2010).

As a result of the “voluminous litigation” on this issue, our courts have “stake[d] out

a sensible middle ground that protects both those making claims, by ensuring that the period

during which a malpractice suit can be filed does not expire before discovery, and those

against whom claims are made, by preventing the prosecution of stale medical malpractice

claims.” Sherrill, 325 S.W.3d at 595. As such, our courts apply the following rule to

determine when a medical malpractice cause of action has accrued:

[A] medical malpractice cause of action accrues when one

discovers, or in the exercise of reasonable diligence should have

discovered, both (1) that he or she has been injured by wrongful

or tortious conduct and (2) the identity of the person or persons

whose wrongful conduct caused the injury. A claimant need not

actually know of the commission of a wrongful action in order

for the limitations period to begin, but need only be aware of

facts sufficient to place a reasonable person on notice that the

injury was the result of the wrongful conduct of another. If

enough information exists for discovery of the wrongful act

through reasonable care and diligence, then the cause of action

accrues and the tolling of the limitations period ceases.

Id.

Notice pursuant to the discovery rule may be actual or constructive. In this case, the

issue is one of constructive notice. Usually, the determination of when a plaintiff had

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constructive knowledge of facts sufficient to put him or her on notice pursuant to the

discovery rule “is . . . a question for the trier of fact.” McIntosh v. Blanton, 164 S.W.3d 584,

586 (Tenn. Ct. App. 2004). However:

[W]here the undisputed facts demonstrate that no reasonable trier

of fact could conclude that a plaintiff did not know, or in the

exercise of reasonable care and diligence should not have known,

that he or she was injured as a result of the defendant's wrongful

conduct, Tennessee case law has established that judgment on the

pleadings or dismissal of the complaint is appropriate.

Schmank v. Sonic Automotive, Inc., No. E2007-01857-COA-R3-CV, 2008 WL 2078076, at

*3 (Tenn. Ct. App. May 16, 2008). Indeed, this Court has stated:

Defenses based on a statute of limitations are particularly

amenable to summary judgment motions. See Creed v. Valentine,

967 S.W.2d 325, 327 (Tenn. Ct. App. 1997); Allied Sound, Inc.

v. Neely, 909 S.W.2d 815, 820 (Tenn. Ct. App. 1995). Most often

the facts material to a statute of limitations defense are not in

dispute. When the facts and the inferences reasonably drawn

from the facts are not disputed, the courts themselves can bring

to bear the applicable legal principles to determine whether the

moving party is entitled to a judgment as a matter of law.

Cherry v. Williams, 36 S.W.3d 78, 83 (Tenn. Ct. App. 2000).

Ms. Young contends on appeal that the trial court erred in granting summary judgment

to Dr. Kennedy because disputes of material fact exist that prevent the application of summary

judgment. As previously discussed, summary judgment is only appropriate if no material

factual disputes exist. See Evco, 528 S.W.2d at 24–25. Dr. Kennedy argues, however, that Ms.

Young never asserted at the trial level that there were material factual disputes, which

precluded summary judgment. Usually, when a litigant fails to raise an issue in the trial court,

it is deemed waived on appeal. See Powell v. Cmty. Health Sys., Inc., 312 S.W.3d 496, 511

(Tenn. 2010). However, on appeals from the grant of summary judgment, we are directed to:

[M]ake a fresh determination that the requirements of [Rule] 56

[of the Tennessee Rules of Civil Procedure] have been satisfied.

Hunter v. Brown, 955 S.W.2d 49, 50–51 (Tenn. 1997); Mason

v. Seaton, 942 S.W.2d 470, 472 (Tenn. 1997). We must consider

the evidence in the light most favorable to the non-moving party,

and we must resolve all inferences in the non-moving party's

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favor. Doe v. HCA Health Servs., Inc., 46 S.W.3d 191, 196

(Tenn. 2001); Memphis Hous. Auth. v. Thompson, 38 S.W.3d

504, 507 (Tenn. 2001). When reviewing the evidence, we must

determine first whether factual disputes exist. If a factual dispute

exists, we must then determine whether the fact is material to the

claim or defense upon which the summary judgment is predicated

and whether the disputed fact creates a genuine issue for trial.

Byrd v. Hall, 847 S.W.2d at 214; Rutherford v. Polar Tank

Trailer, Inc., 978 S.W.2d 102, 104 (Tenn. Ct. App. 1998).

Jeffries v. Tennessee Dept. of Correction, 108 S.W.3d 862, 869 (Tenn. Ct. App. 2002).

Accordingly, we will consider whether there are material factual disputes that preclude

summary judgment in this case.

Turning to the record, it is undisputed that any negligence on the part of Dr. Kennedy

occurred prior to June 6, 2001, when Mr. Young slipped into a coma. Indeed, as argued by

Dr. Kennedy in her Motion to Dismiss, Ms. Young alleged no actions on the part of Dr.

Kennedy after June 6, 2001. In addition, Ms. Young did not allege any negligence on the part

of Dr. Kennedy after June 6, 2001 in either her JCAHO Complaint or the Tennessee

Department of Health interview. Accordingly, it is undisputed that the date of Mr. Young’s

injury as a result of Dr. Kennedy’s alleged negligence was, at latest, June 6, 2001. The

question, however, is not when the injury occurred, but when the relevant person became

sufficiently aware of the injury and the wrongful conduct of the defendant to trigger the

running of the statute of limitations.

As a point of practice, we note that in a wrongful death medical malpractice action, we

will “consider [] whether the plaintiff bringing the suit, rather than the [d]ecedent, had notice

of an actionable wrong.” Holliman v. McGrew, 343 S.W.3d 68 (Tenn. Ct. App. 2009) (citing

Hathaway v. Middle Tennessee Anesthesiology, P.C., 724 S.W.2d 355, 361 (Tenn. Ct. App.

1986) (Koch, J., concurring) (“A deceased’s personal representative is charged with the same

duty of discovery that would have been imposed on the deceased had he survived.”); Gosnell

v. Ashland Chem. Co., 674 S.W.2d 737, 739–40 (Tenn. Ct. App. 1984) (imposing a duty of

reasonable care and diligence on the plaintiff to discover whether husband's death was

actionable)). The question, then, is when Ms. Young discovered, or in the exercise of

reasonable care should have discovered, that Mr. Young had been injured as a result of Dr.

Kennedy’s negligence. See Sherrill, 325 S.W.3d at 595. Thus, we will consider the knowledge

of Ms. Young for purposes of this appeal.

Ms. Young contends that she did not become aware of Mr. Young’s injury as a result

of Dr. Kennedy’s negligence until after Mr. Young’s death on June 12, 2001. Specifically, she

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asserts that both Dr. Kennedy and the Methodist staff failed to inform her that Mr. Young was

suffering from a hospital staph infection, which was allegedly caused by inadequate hygiene

in the hospital. Instead, Ms. Young contends that Dr. Kennedy informed her that Mr. Young’s

worsening condition was due to the reoccurrence of his lymphoma, rather than an infection.

First, we note that the Tennessee Supreme Court has specifically held that: “Neither actual

knowledge of a breach of the relevant legal standard nor diagnosis of the injury by another

medical professional is a prerequisite to the accrual of a medical malpractice cause of

action.” Sherrill, 325 S.W.3d at 595 (emphasis added). In addition, “mere ignorance . . . is not

sufficient to toll the running of the statute of limitations.” Soldano v. Ownes-Corning

Fiberglass Corp., 696 S.W.2d 887, 889 (Tenn. 1985). “The plaintiff may not . . . delay filing

suit until all the injurious effects and consequences of the alleged wrong are actually known

to the plaintiff.” Shadrick v. Coker, 963 S.W.2d 726, 733 (Tenn. 1998) (citing Wyatt v. A-

Best Company, 910 S.W.2d 851, 855 (Tenn. 1995)). Similarly, the statute of limitations is not

tolled until the plaintiff actually knows the “specific type of legal claim he or she has,”

Stanbury v. Bacardi, 953 S.W.2d 671, 672 (Tenn. 1997), or that “the injury constitute[d] a

breach of the appropriate legal standard.” Roe v. Jefferson, 875 S.W.2d 653, 657 (Tenn.

1994). Accordingly, the fact that Ms. Young was not informed of Mr. Young’s actual

diagnosis until after his death is not fatal to Dr. Kennedy’s claim that Ms. Young discovered

the injury prior to Mr. Young’s death.

Regardless, Ms. Young claims that the facts are disputed that she had sufficient

knowledge to put her on notice of Mr. Young’s injury and that the injury was caused by the

negligence of Dr. Kennedy prior to Mr. Young’s death. This Court was recently faced with

a similar situation in Holliman v. McGrew, 343 S.W.3d 68 (Tenn. Ct. App. 2009). In

Holliman, the defendants raised the expiration of the statute of limitations as a defense in

their answer. Id. at 70. The plaintiffs, like Ms. Young in this case, contended that they were

not on notice of any alleged injury until the decedent’s death on March 3, 2003. Id. at 71. The

trial court disagreed with the plaintiffs and granted summary judgment in favor the defendant

doctor. Id. at 72. The Court of Appeals affirmed summary judgment, concluding that the

plaintiffs were on notice of the injury and that the injury may have been caused by the

defendant doctor’s negligence, at latest, on February 27, 2004. Id. at 75. The Court of Appeals

first rejected plaintiffs’ argument that they could not have known of the decedent’s injuries

prior to his death, noting: “The date of [d]ecedent’s death is the latest, rather than only, date

from which the one-year limitation runs.” Id. at 74 (citing Johnson v. Metro. Gov't of

Nashville & Davidson County, 665 S.W.2d 717, 718 (Tenn. 1984)). The Court then

considered when the plaintiffs had sufficient notice of the wrongful actions of the defendant

doctor based on the undisputed evidence in the record. Holliman, 343 S.W.3d at 75.

According to the record, prior to his death, the decedent informed the plaintiffs that the

defendant doctor was “likely a good doctor but in [this] case, he failed to see this reaction to

the [Amiodarone medication] until it was too late.” The decedent also informed the plaintiffs

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that he felt “permanently damaged” as a result of the medication. Finally, on February 27,

2004, the decedent asked the plaintiffs to hold the defendant doctor accountable for his

actions. Id. The plaintiffs argued that the above information was insufficient because neither

the plaintiffs nor the decedent were ever told by another doctor that the defendant doctor had

done something wrong. The Court of Appeals rejected this argument, explaining:

In Stanbury v. Bacardi, 953 S.W.2d 671 (Tenn. 1997), the Court

held that “[a]dvice from another health care professional that a

claim exists is not a prerequisite to accrual of a medical

malpractice cause of action.” Id. at 678. Here, the plaintiffs were

told by other doctors prior to the decadent's death in the hospital

that the Decedent's problems were likely caused by the drug Dr.

McGrew prescribed. The notice requirement does not mean that

the plaintiffs must understand the precise legal details of their

claim. Rather, the statute of limitations is tolled “only during the

period when the plaintiff has no knowledge at all that a wrong

has occurred, and, as a reasonable person, is not put on inquiry.”

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

J., concurring).

Holliman, 343 S.W.3d at 75. Accordingly, the Court of Appeals concluded that the plaintiffs

were on sufficient notice of the wrongful act on February 27, 2003, rather than the date the

decedent died.

Ms. Young distinguishes Holliman, however, on the basis of the decedent’s statements

to his family members that the defendant doctor’s use of the drug had caused permanent

damage to the decedent. According to Ms. Young, there are no similar facts in the record to

support that she or Mr. Young knew that Mr. Young’s deteriorating condition was the result

of Dr. Kennedy’s negligence. We respectfully disagree. First, as previously stated, the

question in this case is the knowledge of Ms. Young, rather than the knowledge of Mr.

Young. See Holliman, 343 S.W.3d at 75. Accordingly, Mr. Young’s lack of knowledge will

not be fatal to Dr. Kennedy’s statute of limitations defense. Regardless, the record does show

that Mr. Young had some knowledge of his injury and that the injury was likely attributable

to Dr. Kennedy’s negligence. Specifically, Ms. Young testified in her deposition that Mr.

Young expressed displeasure with Dr. Kennedy’s treatment and indicated that he wanted to

be moved to a different hospital prior to slipping into a coma on June 6, 2001. In addition, Ms.

Young testified that Mr. Young was afraid to stay at the hospital at night. Accordingly, the

undisputed facts in the record show that Mr. Young, like the decedent in Holliman, informed

Ms. Young of his fear the treatment offered by Dr. Kennedy was not adequate.

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From our review of the record, we conclude that the undisputed facts support the trial

court’s finding that Ms. Young had sufficient notice that Mr. Young may have suffered an

injury due to Dr. Kennedy’s negligence, at the latest, on June 6, 2001. With regard to the

hospital acquired infection, Ms. Young admits in her deposition that she was aware that Mr.

Young had acquired an infection at the time he was readmitted to the Intensive Care Unit on

May 9, 2001. Specifically, Ms. Young stated that the fact that he had acquired an infection

was obvious from his condition and the fact that Mr. Young was placed in isolation at that

time. While there is a dispute regarding when Ms. Young learned that the infection was a

hospital acquired staph infection, we must conclude that the undisputed facts in the record

support the trial court’s finding that Ms. Young’s knowledge of the infection would have put

a reasonable person on notice that Mr. Young suffered an injury as a result of Dr. Kennedy’s

alleged negligence. Accordingly, by May 9, 2001, Ms. Young had “facts sufficient to place

a reasonable person on notice that the injury was the result of the wrongful conduct of

another,” regarding the alleged hospital infection. See Sherrill, 325 S.W.3d at 595.

With regard to Mr. Young’s eventual death as a result of Dr. Kennedy’s subsequent

treatment, the record shows that both Mr. Young and Ms. Young expressed their displeasure

with Dr. Kennedy’s treatment decisions prior to or on June 6, 2001. Specifically, the notes

taken of Ms. Young’s Tennessee Department of Health interview, which are undisputed in

the record, show that Ms. Young engaged in a confrontation with Dr. Kennedy on June 6,

2001. Dr. Kennedy’s notes, which are also undisputed, support that the confrontation occurred

on this date. During this confrontation, Ms. Young described her displeasure with Dr.

Kennedy’s treatment choices, specifically Dr. Kennedy’s alleged over-prescription of

sedatives and pain medication, which Ms. Young contends caused Mr. Young’s blood

pressure to drop and eventually led to Mr. Young slipping into a coma. It is the same alleged

over-medication that Ms. Young cites in her Complaint as below the standard of care and the

proximate cause of Mr. Young’s coma and death. Accordingly, Ms. Young was well aware

of what she considered to be Mr. Young’s injury and that this injury was, as alleged by her,

due to Dr. Kennedy’s negligence, on June 6, 2001.

Based on the foregoing, we must conclude that the undisputed facts in the record

support the trial court’s conclusion that the statute of limitations began to run on June 6, 2001,

at the latest. Accordingly, Ms. Young’s Complaint, which was filed on June 11, 2002, was

filed outside the statute of limitations prescribed by Tennessee Code Annotated Section 29-

26-116. The trial court’s grant of summary judgment to Dr. Kennedy and Methodist is,

therefore, affirmed.

IV. Conclusion

The judgment of the Circuit Court of Shelby County is affirmed. Costs of this appeal

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are taxed to Appellant Julia Young, on behalf of the estate of Cecil C. Young, and her surety.

_________________________________

J. STEVEN STAFFORD, JUDGE

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