The opinion
10/07/2019
IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
August 22, 2019 Session
TERESA M. DAFFRON, AS DAUGHTER, NEXT OF KIN TO AND AS
THE ADMINISTRATOR OF THE ESTATE OF WILEY E. DAFFRON v.
MEMORIAL HEALTH CARE SYSTEM, INC.
Appeal from the Circuit Court for Hamilton County
No. 15C1011 Ward Jeffrey Hollingsworth, Judge
No. E2018-02199-COA-R3-CV
This appeal arises from a wrongful death action based on health care liability. Wiley E.
Daffron (“Decedent”) received medical treatment from Memorial Health Care System,
Inc. (“Memorial”) in 2013. During his stay at Memorial, Decedent developed a pressure
ulcer. Decedent died a few months after he was discharged from Memorial. Teresa M.
Daffron (“Ms. Daffron”), Decedent’s adult daughter, obtained Decedent’s medical
records from Memorial. Some 13 months later, Ms. Daffron sent pre-suit notice of her
intent to sue Memorial. A few months after that, Ms. Daffron filed suit against Memorial
in the Circuit Court for Hamilton County (“the Trial Court”). Memorial filed a motion
for summary judgment asserting the statute of limitations, which the Trial Court granted.
The Trial Court held that Ms. Daffron knew or should have known of Decedent’s injury
and its possible cause more than one year before the pre-suit notice was sent and,
therefore, her complaint was filed outside the statute of limitations. On appeal, Ms.
Daffron argues that the statute of limitations did not begin to run until an expert informed
her that Decedent’s injury was caused by Memorial. We hold that, pursuant to the
discovery rule, and, as evidenced by, among other things, her seeking through counsel
Decedent’s medical records, Ms. Daffron had constructive knowledge of Decedent’s
claim more than one year before she sent pre-suit notice and, therefore, the complaint was
not timely filed. Ms. Daffron’s claim brought on behalf of her father is barred by the
statute of limitations. We affirm the judgment of the Trial Court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed;
Case Remanded
D. MICHAEL SWINEY, C.J., delivered the opinion of the court, in which JOHN W.
MCCLARTY and THOMAS R. FRIERSON, II, JJ., joined.
G. Brent Burks and Tim O. Henshaw, Chattanooga, Tennessee, for the appellant, Teresa
M. Daffron, as daughter, next of kin to and as the administrator of the estate of Wiley E.
Daffron.
Arthur P. Brock and Jamieson Brock, Chattanooga, Tennessee, for the appellee,
Memorial Health Care System, Inc.
OPINION
Background
Decedent, who suffered from diabetes, began living with Ms. Daffron in
November 2011. Ms. Daffron assisted her father closely in managing his health issues.
Decedent signed a health care power of attorney allowing Ms. Daffron to make medical
decisions on his behalf. Of particular relevance, Ms. Daffron knew that Decedent could
develop sores without proper skincare.
On November 1, 2013, Decedent was admitted to Memorial for an arthroscopic
procedure. After three days, Decedent suffered complications for which he was
intubated. On November 10, 2013, Decedent was extubated. On November 11, Ms.
Daffron discovered that Decedent had two sores on his buttocks. Ms. Daffron consented
to a debridement.1 On November 20, Decedent was transferred to Kindred Hospital,
where he stayed for several days. Decedent then returned to Memorial for a second
debridement. Decedent went back to Kindred Hospital before being discharged to
hospice and, finally, his home.
In December 2013, Ms. Daffron had a chance conversation with a nurse at
Memorial who advised her to look into her father’s care. Ms. Daffron shortly thereafter
contacted the McMahan Law Firm, which represents her now on appeal. In February
2014, Ms. Daffron, through counsel, requested Decedent’s medical records from
Memorial. On March 17, 2014, Ms. Daffron obtained Decedent’s medical records. On
April 28, 2014, Decedent died allegedly due to Memorial’s health care negligence.
According to Ms. Daffron, she became aware of Memorial’s alleged negligence only
when informed by her expert, Dr. Sexson, in March 2015.
On April 21, 2015, Ms. Daffron sent Memorial pre-suit notice of a pending health
care liability action. On August 24, 2015, Ms. Daffron sued Memorial in the Trial Court.
In its answer, Memorial asserted the statute of limitations as a defense. In July 2018,
1
Debridement means “the usually surgical removal of lacerated, devitalized, or contaminated tissue.”
Merriam-Webster Online Dictionary, https://www.merriam-webster.com/dictionary/debridement (last
visited October 1, 2019).
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Memorial filed a motion for summary judgment. In its brief in support of its motion for
summary judgment, Memorial detailed its argument as to why Ms. Daffron’s suit was not
timely filed, stating in part:
The statute of limitations for health care liability actions is one year.
T.C.A. § 29-26-116. If prior to one year notice of a claim is sent to a
defendant in a health care liability action, the statute of limitations is
extended for one hundred twenty (120) days pursuant to T.C.A. § 29-26-
121. A claim is barred by the statute of limitations if no notice is sent
within a year of the accrual of the action or — presuming timely notice —
if the lawsuit is filed four hundred eighty five (485) days after cause
accrues. Id.; T.C.A. § 29-26-116. Mr. Daffron was discharged from
Memorial on December 20, 2013, and was not treated there again before his
death on April 28, 2014. Exhibit 1 of Affidavit of Dawn Walker, Attached
to Memorial’s Motion for Summary Judgment as Exhibit B (hereinafter
“Memorial Records”), at MH03656. Notice was sent on April 21, 2015,
and this lawsuit was filed on August 24, 2015. Compl. Memorial’s Motion
seeks dismissal of this action because, as stated in the Complaint, Mr.
Daffron developed these complications while he was at Memorial;
therefore, notice was not sent within a year and the Complaint was not filed
within 485 days as required by statute, and should be dismissed with
prejudice as a matter of law.
In her response to interrogatories, Ms. Daffron stated the following as to her
understanding of how Decedent was injured:
8. Please described [sic] in detail your* understanding of how the alleged
occurrence* happened, presenting all the events leading up to Mr.
Daffron’s alleged injuries in the order in which they occurred.
ANSWER: He was admitted on November 1, 2013, to Memorial for an
endoscope and it was discovered that he had aspiration pneumonia and he
was treated for such over the weekend. On November 4, 2013, he was
cleared by respiratory and anaesthesia for the endoscope procedure. The
procedure was performed with no complications to my knowledge. Later
the same evening he had issues maintaining his O2 saturations and he was
intubated and transferred to the CCU unit. He remained on the ventilator
until November 10, 2013, and once it was removed he was doing well. On
November 11, 2013, it was discovered by me that while on the ventilator
and not receiving proper skin care, he developed 2 separate bed sores on his
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buttocks. The wound care physician was called in the same day to assess
the wounds and a rectal catheter was placed that day as well.
In her deposition, Ms. Daffron testified in detail as to her first realization that
something was wrong with her father’s medical care, as well as what steps she took upon
this realization:
Q. Okay. I know this will sound like a silly question, but you were upset
because of what you saw.
A. I was upset because of what I saw and that, all the years that I’d worked
hard for that not to happen while he was at home, for that to happen in a
hospital.
***
Q. Okay. Did you discuss what you saw with [Decedent]?
A. I asked him did his back hurt, and he said: “I’ve been telling y’all for
days my back hurt.”
Q. Okay.
A. And I said: “Well, you’ve got some kind of sore back there that the
doctor’s going to come look at.” And he’s like: “Why do I have a sore?”
And I’m like: “Daddy, I don’t know.”
***
Q. Okay. “On November 11, 2013, it was discovered by me that, while on
the ventilator and not receiving proper skin care, he developed two separate
bedsores on his buttocks.” Now, we’ve talked about that as well. Right?
A. Yes.
Q. I just want to make sure I understand. When you say it was discovered
by you --
A. From the nurse telling me they needed to clean his wound.
Q. Okay. And then you went in there and actually saw it.
A. Correct.
Q. Okay. The part about “discovered by me that, while he was on the
ventilator,” that information came to you from the physician, or did you just
--
A. From the nurse.
Q. From the nurse.
A. That told me she needed to clean his wounds.
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Q. Okay. But this part about, “while on the ventilator and not receiving
proper skin care,” did that come from -- how did that -- you discover that
information?
A. Common sense.
Q. Okay.
A. On the 4th, after his procedure, he had no skin tears, no skin wounds, no
pressure sores. I helped him clean up because his catheter was leaking,
which is why it needed to be replaced on the 4th before we left to go home
after visiting him. I helped clean up the urine, lotioned his back, lotioned
his legs. There were no sores. On the 10th, there’s two.
Q. Okay. And that -- one of the reasons you had been doing all that stuff at
home was to help prevent something like this?
A. Yes.
Q. Then it says: “The wound-care physician was called in the same day to
assess the wounds, and a rectal catheter was placed that day.” We’ve talked
about that. Right?
A. Dr. Barnett.
Q. Okay. And he continued to see Dr. Barnett for quite a while for this
wound.
A. Until he was transferred to Kindred.
Q. Okay. He went from Memorial to Kindred. Correct?
A. Yes.
Q. And then back to Memorial.
A. Yes.
***
Q. When did you first approach an attorney about looking into your father’s
situation?
A. After a chance meeting on an elevator.
Q. When was that?
A. After his major debridement surgery, I had run into the nurse that
actually told me, by accident, that he had the wound; and she asked me how
he was doing. I told her he was still here, that he’d just had a major
surgery. And she said: “Sweetie, you need to really go talk to somebody
about what happened to your dad.”
Q. Is this while he was in Memorial --
A. No.
Q. -- in December?
A. Yes.
Q. Do you know this nurse’s name?
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A. I don’t.
Q. Do you know what she looks like?
A. Blondish, I guess. I don’t -- I don’t remember.
Q. Okay.
A. Whoever was taking care of him on the 11th. It was the same nurse.
Q. Okay. So this was the nurse who first told you that they needed to clean
the wound --
A. Correct.
Q. -- on November 11th?
A. Correct.
Q. And then, in December of 2013, on the elevator, she told you you really
needed to do what?
A. “You need to talk to somebody about what happened to your dad.”
Q. Okay. And you took that to mean you really needed to go talk to a
lawyer?
A. No. I took that to mean I needed to find out what was going on. And
when I got no answers from everybody I talked to is when I decided I
needed to talk to a lawyer.
Q. And when did you first speak to a lawyer?
A. I don’t remember.
Q. Was it in December?
A. I don’t remember.
Q. Who was the first lawyer you spoke with?
A. Mr. Poole.
Q. Did you speak to Mr. Poole by phone?
A. Initially, yes.
Ms. Daffron later filed an affidavit seeking to clarify her deposition testimony,
particularly the part where she stated that she knew from “common sense” that Decedent
had received improper skincare at Memorial. In her affidavit, Ms. Daffron stated:
1. I am over eighteen (18) years of age and of sound [mind].
2. This Affidavit is based upon my own personal knowledge.
3. I am [the] daughter of Wiley Daffron, whose death I believe was caused
by the negligent acts and omissions of Memorial Health Care System, Inc.
4. As I have testified under oath in a deposition, I discovered on November
11, 2013, that my father Wiley Daffron, had been diagnosed with a pressure
ulcer.
5. At that time, I asked numerous questions about how the ulcer had
occurred.
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6. No one, between my father’s doctors, hospital staff or nurses would
explain to me how the pressure ulcer had occurred and how it had gotten so
bad so quickly.
7. As result of their silence, I could not ascertain any of the following:
a. Who if, anyone, initially documented the pressure ulcer;
b. Who, if anyone, continued to document the pressure ulcer;
c. Who, if anyone, ordered preventative or interventional measures;
d. Who, if anyone, provided preventative or interventional measures;
e. Who, if anyone, called in to Dr. Barnett to debride the pressure ulcer;
f. Who, if anyone, made the decision to transfer him out of the hospital.
8. Generally, although I knew that my father had a pressure ulcer, I did not
know why it occurred or who was responsible at any point in 2013 or 2014.
9. It was not until Dr. James Sexson, the expert who reviewed my father’s
medical records from his stays at Memorial, Kindred and Hospice Care,
finished his evaluation and made his conclusions in March 2015 that I knew
Memorial Health Care System, Inc. was the entity and/or person
responsible for my father’s injuries and untimely death.
10. In my deposition, my response that it was “common sense” to Mr.
Brock’s question about my interrogatory response number 8 was only
intended to mean it was common sense he got the sore while at Memorial in
the CCU because it did not exist on November 4, 2013, prior to his entry
into the CCU.
11. I did not know in November 2013 or at any time prior to March 2015
that my father’s injuries were caused by the negligence of Memorial
Hospital.
12. Specifically, if I had known in November 2013 or December 2013 that
Memorial’s negligence caused my father’s injuries I would not have
consented to his continued care at that hospital and would have insisted on
his removal to another facility.
13. I acted with reasonable care and diligence to discover the entity and/or
person responsible for my father’s injuries and death.
14. All phone conversations, written communications and/or any other
communications of any type between myself and McMahan Law Firm at
any point in time were related to legal advice I sought out. I refuse to
disclose the contents of those discussions and the nature of any advice I
received because this would violate my civil rights to seek legal advice
from any attorney of my choosing. Additionally, I do not consent to the
attorneys and/or staff at McMahan Law Firm from disclosing the contents
or nature of any of my privileged communications with them.
Further, the affiant sayeth not.
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Memorial’s motion for summary judgment was heard in October 2018. In
November 2018, the Trial Court granted Memorial’s motion on the basis of the
“discovery rule.” The Trial Court stated in its order, in pertinent part:
The Defendant argues that the undisputed facts show that Ms.
Daffron knew her father had developed pressure sores on November 11,
2013. She knew that those sores developed while her father was in the care
of the Defendant, Memorial Hospital. Therefore, she knew of the injury,
that the injury was or could have been caused by a failure to provide proper
skin care, and it was employees of Memorial who failed to provide that
care.
Therefore, on November 11, 2013, she knew the injury, the manner
by which the breach of duty occurred and the identity of the Defendant who
breached the duty in November, 2013. Then, in December 2013, a nurse at
Memorial told her to talk to someone about what had happened to her
father. In her deposition, Ms. Daffron said it was after that conversation
and her inability to get anyone at Memorial to tell her anything that she
contacted a lawyer. It is undisputed that the first telephone call was on
December 9, 2013. Although it was not included in the undisputed facts
listed in this Memorandum Order, it does not seem to be disputed that Ms.
Daffron and her lawyers had Wiley Daffron’s medical records in March,
2014. As noted, it is undisputed that the pre-trial notice was sent on April
21, 2015, more than one (1) year after all of the events listed above.
In her response, Ms. Daffron argues that Memorial tried to conceal
their negligence. However, in her brief, she states that on November 11,
2013, nurses tried to keep her from entering her father’s room. She says
“only after pressing did the same nurse tell Teresa that her father had a
wound they needed to clean.” It is undisputed that Ms. Daffron saw the
wound on that day. If the incident outside the room occurred as described
by Ms. Daffron, that should have heightened her suspicion that something
was amiss. She goes on to say that no one told her the severity of the
wound. However, she was aware that same day a debridement of the
wound occurred. She says in her brief that she had “. . . a million
questions, including several that her father’s physicians would not answer.”
She goes on to argue that she had no way of confirming Memorial’s
negligence until April 24, 2014.
***
Although Ms. Daffron may not have had all the details, she knew on
November 11, 2013 that her father developed pressure sores while in the
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care of Memorial and that her father had not developed such sores in the
two years he had been in her care, because she provided appropriate skin
care. At the outside, she knew she had a right of action after the Memorial
nurse told her to talk to someone about her father’s care in December, 2013
and she, as a result of that conversation, contacted a lawyer that same
month.
The statute of limitations began to run no later than December, 2013.
The pre-suit notice required by T.C.A. § 29-26-121 extends the statute only
if the pre-suit notice is sent within the original [one] year statute. It was
not. Therefore, the statute had expired.
Summary judgment is Granted to the Defendant and the Plaintiff’s
complaint is Dismissed with prejudice.
Ms. Daffron timely appealed to this Court.
Discussion
Although not stated exactly as such, Ms. Daffron raises the following issue on
appeal: whether the Trial Court erred in granting Memorial’s motion for summary
judgment on grounds that Ms. Daffron knew or should have known of Decedent’s cause
of action more than one year prior to her sending pre-suit notice of the health care
liability action.
This case was resolved on a motion for summary judgment. As our Supreme
Court has instructed as to our standard of review:
Summary judgment is appropriate when “the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact
and that the moving party is entitled to a judgment as a matter of law.”
Tenn. R. Civ. P. 56.04. We review a trial court’s ruling on a motion for
summary judgment de novo, without a presumption of correctness. Bain v.
Wells, 936 S.W.2d 618, 622 (Tenn. 1997); see also Abshure v. Methodist
Healthcare–Memphis Hosp., 325 S.W.3d 98, 103 (Tenn. 2010). In doing
so, we make a fresh determination of whether the requirements of Rule 56
of the Tennessee Rules of Civil Procedure have been satisfied. Estate of
Brown, 402 S.W.3d 193, 198 (Tenn. 2013) (citing Hughes v. New Life Dev.
Corp., 387 S.W.3d 453, 471 (Tenn. 2012)).
***
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[I]n Tennessee, as in the federal system, when the moving party does not
bear the burden of proof at trial, the moving party may satisfy its burden of
production either (1) by affirmatively negating an essential element of the
nonmoving party’s claim or (2) by demonstrating that the nonmoving
party’s evidence at the summary judgment stage is insufficient to establish
the nonmoving party’s claim or defense. We reiterate that a moving party
seeking summary judgment by attacking the nonmoving party’s evidence
must do more than make a conclusory assertion that summary judgment is
appropriate on this basis. Rather, Tennessee Rule 56.03 requires the
moving party to support its motion with “a separate concise statement of
material facts as to which the moving party contends there is no genuine
issue for trial.” Tenn. R. Civ. P. 56.03. “Each fact is to be set forth in a
separate, numbered paragraph and supported by a specific citation to the
record.” Id. When such a motion is made, any party opposing summary
judgment must file a response to each fact set forth by the movant in the
manner provided in Tennessee Rule 56.03. “[W]hen a motion for summary
judgment is made [and] . . . supported as provided in [Tennessee Rule 56],”
to survive summary judgment, the nonmoving party “may not rest upon the
mere allegations or denials of [its] pleading,” but must respond, and by
affidavits or one of the other means provided in Tennessee Rule 56, “set
forth specific facts” at the summary judgment stage “showing that there is a
genuine issue for trial.” Tenn. R. Civ. P. 56.06. The nonmoving party
“must do more than simply show that there is some metaphysical doubt as
to the material facts.” Matsushita Elec. Indus. Co., 475 U.S. at 586, 106 S.
Ct. 1348. The nonmoving party must demonstrate the existence of specific
facts in the record which could lead a rational trier of fact to find in favor of
the nonmoving party. If a summary judgment motion is filed before
adequate time for discovery has been provided, the nonmoving party may
seek a continuance to engage in additional discovery as provided in
Tennessee Rule 56.07. However, after adequate time for discovery has
been provided, summary judgment should be granted if the nonmoving
party’s evidence at the summary judgment stage is insufficient to establish
the existence of a genuine issue of material fact for trial. Tenn. R. Civ. P.
56.04, 56.06. The focus is on the evidence the nonmoving party comes
forward with at the summary judgment stage, not on hypothetical evidence
that theoretically could be adduced, despite the passage of discovery
deadlines, at a future trial.
Rye v. Women’s Care Cntr. of Memphis, MPLLC, 477 S.W.3d 235, 250, 264-65 (Tenn.
2015).
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For wrongful death actions rooted in health care liability, Tennessee courts apply a
one year statute of limitations as adopted by our General Assembly. Tenn. Code Ann. §
29-26-116(a)(1) (2012); Holliman v. McGrew, 343 S.W.3d 68, 74 (Tenn. Ct. App. 2009).
“When notice is given to a provider as provided in this section, the applicable statutes of
limitations and repose shall be extended for a period of one hundred twenty (120) days
from the date of expiration of the statute of limitations and statute of repose applicable to
that provider.” Tenn. Code Ann. § 29-26-121(c) (2012). “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.” Tenn. Code Ann. § 29-26-116(a)(2) (2012). Our
Supreme Court has outlined the discovery rule as follows:
In summary, 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. 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 v. Souder, 325 S.W.3d 584, 595 (Tenn. 2010). The cause of action accrues and
the statute of limitations begins not only when a plaintiff acquires actual knowledge of a
claim but also upon a plaintiff’s constructive or inquiry notice of a claim. Redwing v.
Catholic Bishop for the Diocese of Memphis, 363 S.W.3d 436, 459 (Tenn. 2012). While
the question of whether a plaintiff had constructive knowledge typically is for the trier of
fact to decide, judgment on the pleadings or dismissal is appropriate where the
undisputed facts demonstrate that no reasonable trier of fact could conclude that a
plaintiff should not have known through the exercise of reasonable care and diligence
that she was injured as a result of a defendant’s wrongful conduct. Young ex rel. Young
v. Kennedy, 429 S.W.3d 536, 557-58 (Tenn. Ct. App. 2013).
In a wrongful death health care liability action, Tennessee courts have considered
whether the plaintiff bringing the suit, rather than the decedent, was put on notice of an
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actionable wrong. Holliman, 343 S.W.3d at 75; Young, 429 S.W.3d at 559.2 We are
therefore tasked with determining whether Ms. Daffron, rather than Decedent, had actual
or constructive knowledge of the claim at the pertinent times. Elaborating further upon
the discovery rule, our Supreme Court stated:
[T]he discovery rule does not delay the accrual of a cause of action and the
commencement of the statute of limitations until the plaintiff knows the full
extent of the damages, or until the plaintiff knows the specific type of legal
claim it has. The discovery rule is not intended to permit a plaintiff to
delay filing suit until the discovery of all the facts that affect the merits of
his or her claim.
Redwing, 363 S.W.3d at 459 (internal citations omitted).
Ms. Daffron cites to Luna v. St. Thomas Hosp., 272 S.W.3d 577 (Tenn. Ct. App.
2007) for the proposition that, when a plaintiff is confronted with multiple possible
defendants, the question of notice lends itself to determination by the trier of fact. In the
present case, Decedent spent some time at Kindred Hospital in addition to Memorial and
had numerous individual providers over the course of his medical episode. In Luna, the
plaintiff suspected that a delay in surgery caused her husband’s death but did not initially
grasp the hospital’s role. Id. at 583. This Court noted that “[w]hen a plaintiff suspects
wrongful conduct that could have originated from any of several potential defendants, the
constructive knowledge analysis becomes more complex.” Id. at 582. We then discussed
as follows:
To establish that Mrs. Luna should have discovered the residents’
alleged wrongful acts more than a year prior to filing her lawsuit, St.
Thomas Hospital relies on paragraph twenty-three from her complaint
against Doctors Pruitt and Cohen, which states as follows:
After Mr. Luna’s death, Mrs. Luna and some of her husband’s
kin became concerned about why Mr. Luna had died while in
the hospital and under the constant care of physicians and
hospital staff personnel. They wanted to know if any of Mr.
2
The parties never broach the question of Decedent’s knowledge. We have misgivings about an analysis
centered on Ms. Daffron’s knowledge when, from the record before us, she had no authority to file a
health care liability suit on her Father’s behalf while he was alive. This also raises the question of when
the statute of limitations would have started to run if an individual other than Ms. Daffron had brought
this wrongful death health care liability action. Nevertheless, both parties agree that Ms. Daffron’s
knowledge is what is at issue, and, based on the applicable precedents, that is the state of the law. We
proceed on that basis.
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Luna’s healthcare providers were negligent in any way that
caused or substantially contributed to his death. Accordingly,
later in December 2003, Mrs. Luna sought and received from
St. Thomas Hospital what is presumed to be most of Mr.
Luna’s hospital records. It was after those records were
reviewed, and within one year prior to the filing of this
Complaint, that Mrs. Luna discovered the facts, as alleged
above, which she feels evidence causative negligence by Drs.
Pruitt and Cohen, as alleged below.
Nothing in this paragraph indicates that Mrs. Luna possessed facts beyond
the obvious one, that her husband died from complications associated with
a bleeding ulcer while under the continuous care of hospital staff and
physicians. St. Thomas Hospital would have this Court hold that Mrs.
Luna had constructive notice of the hospital’s potential negligence by virtue
of the fact that the alleged tortious conduct occurred while her husband was
a patient there. We decline to conclude as a matter of law that this
information, without more, commenced the running of the statute of
limitations.
***
If a board certified general surgeon detected nothing in the medical records
themselves to suggest wrongful conduct on the part of the residents, we
find it difficult to expect Mrs. Luna to have done so. We hold that the
affidavit placed into dispute the factual question of Mrs. Luna’s
constructive knowledge of her cause of action against the hospital. The
trial court should have denied the hospital’s motion for summary judgment
and allowed the trier of fact to determine whether or not Mrs. Luna should
have discovered her cause of action against the hospital more than a year
before she filed suit against it.
Luna, 272 S.W.3d at 583-84.
With the relevant Tennessee law in mind, we turn to the present case. Ms. Daffron
sent her pre-suit notice on April 21, 2015. Ms. Daffron filed her complaint on August 24,
2015. The complaint was timely filed only if the pre-suit notice was filed within the
statute of limitations. The dispositive question is whether Ms. Daffron discovered or
should have discovered Decedent’s cause of action before April 21, 2014. If Ms. Daffron
discovered or should have discovered the claim before April 21, 2014, her claim is barred
by the statute of limitations because pre-suit notice was not given within one year of the
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date of discovery and, therefore, the complaint was not filed timely, all as held by the
Trial Court. Ms. Daffron contends that the question is unsuitable for resolution on
summary judgment. To resolve the issue, we review the undisputed material facts.
The record reflects that Ms. Daffron was deeply familiar with her father’s medical
condition and assisted him in his final years. Ms. Daffron lived with Decedent as of
2011. On November 11, 2013, Ms. Daffron discovered the sores on Decedent. She knew
these sores could have resulted from improper skincare. When asked at her deposition
how she knew this, Ms. Daffron replied: “common sense.” While Ms. Daffron also
testified that she told Decedent she did not know why he had the sores, she explained in
her testimony that she knew improper skincare led to such sores and that she had worked
hard to prevent them. Indeed, Ms. Daffron rightfully was upset.
Ms. Daffron later sought to clarify her deposition testimony by means of an
affidavit. In this affidavit, Ms. Daffron stated that her “common sense” testimony was
“intended to mean it was common sense he got the sore while at Memorial in the CCU
because it did not exist on November 4, 2013, prior to his entry into the CCU.”
Memorial argues that Ms. Daffron should not be able to manufacture a question of
material fact by contradicting herself. When a party introduces an affidavit contradicting
her earlier deposition testimony, “[i]n the absence of a satisfactory explanation for this
change in testimony, we are justified in ignoring the affidavit.” Sampson v. Wellmont
Health System, 228 S.W.3d 124, 138 (Tenn. Ct. App. 2007).
To the extent Ms. Daffron contradicted herself, we find her explanation
unavailing. Ms. Daffron’s deposition testimony was crystal clear. She knew Decedent’s
sores could have been caused by improper skincare. Ms. Daffron was deeply familiar
with her father’s health problems, having lived with him and assisted him. She was upset
when she saw the sores because she had worked hard to prevent them herself. Ms.
Daffron’s affidavit does nothing to negate her deposition testimony.
Notwithstanding all of this, sores of the type developed by Decedent can occur
even in the absence of negligence. While Ms. Daffron arguably was put on notice of a
claim when she discovered the sores given her deep familiarity with her father’s
condition, in our judgment this alone does not establish Ms. Daffron’s knowledge such
that no reasonable trier of fact could find otherwise. Ms. Daffron’s actions in the weeks
and months that followed, however, are another matter.
In December 2013, Ms. Daffron was advised by a nurse that she ought to look into
her father’s treatment. She testified that this nurse was “[w]hoever was taking care of
him on the 11th. It was the same nurse.” After this encounter, Ms. Daffron reached out
to a law firm. Ms. Daffron argues that whatever communications she may have had with
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a lawyer are privileged and should not be considered. However, we need not consider the
content of her communications. The only relevant point for our analysis is that the
communications showed, objectively, that Ms. Daffron knew her father had a claim
warranting investigation. When asked at her deposition when she first talked to a lawyer,
Ms. Daffron answered that it occurred after the chance meeting with the nurse. Ms.
Daffron thus related her awareness of a potential legal issue to her conversation with the
nurse. Despite these undisputed facts, Ms. Daffron asserts that she only truly discovered
Memorial’s role when informed by her expert in March 2015, and, according to her, only
then did the statute of limitations begin to run. Ms. Daffron relies heavily on the Luna
case for her position.
We find this case distinguishable from Luna. Unlike the situation in Luna, Ms.
Daffron has pointed to no facts indicating that her knowledge of Memorial’s alleged
wrongful conduct was premised on the later discovery of new facts. We do not interpret
Luna to mean that a claim accrues only when an expert gives a plaintiff the go ahead.
Our Supreme Court has made it clear that “[N]either . . . nor diagnosis of the injury by
another medical professional is a prerequisite to the accrual of a [health care liability]
cause of action.” Sherrill, 325 S.W.3d at 595. It is conceivable that a plaintiff could first
become aware of her claim for purposes of the discovery rule in this manner, but that is
not what happened here. Here, there was a succession of events reflecting Ms. Daffron’s
awareness that her father had been injured by Memorial’s wrongful acts long before she
received an expert’s opinion.
Nevertheless, Ms. Daffron states that the medical records she obtained were
thousands of pages long and she needed extra time to review them. We understand how,
between the discovery rule and the good faith certificate requirement of Tenn. Code Ann.
§ 29-26-122, a plaintiff may be pressed for time between the accrual of her claim and the
expiration of the statute of limitations. Respectfully, however, every health care liability
plaintiff confronts time constraints under the statute of limitations. The question is when
Ms. Daffron was put on notice of a claim, not when she secured expert support necessary
for her suit. In addition, the standard is an objective one. “Plaintiffs’ subjective reactions
are not controlling of whether the statute of limitations should be tolled under the
discovery rule.” Burk v. RHA/Sullivan, Inc., 220 S.W.3d 896, 902 (Tenn. Ct. App. 2006).
Ms. Daffron’s position effectively would grant plaintiffs the ability to determine
unilaterally when the statute of limitation begins to run. That would render the statute of
limitations hollow.
We agree with Ms. Daffron that her discovery of Decedent’s sores alone does not
establish her knowledge beyond a reasonable trier of fact’s ability to find otherwise since
such sores can develop even in the absence of negligence. However, in December 2013,
the same nurse who treated Decedent on November 11, 2013 told Ms. Daffron that she
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ought to look into her father’s care. Ms. Daffron subsequently did just that. Already
upset by Decedent’s sores when she knew improper skincare could lead to them and that
she had worked hard to prevent her father from getting them, the advice from the nurse
and Ms. Daffron’s seeking an attorney establishes that she was, by then, on notice. It
does not matter if Ms. Daffron was not aware of every detail regarding her father’s cause
of action. Insofar as Ms. Daffron alleges fraudulent concealment on the part of
Memorial, that argument is subsumed into our analysis concluding that she was “aware of
facts sufficient to place a reasonable person on notice that the injury was the result of the
wrongful conduct of another.” Sherrill, 325 S.W.3d at 595. Ms. Daffron then sought, via
counsel, Decedent’s medical records from Memorial in February 2014. In March 2014,
Ms. Daffron obtained the records. At that point, Ms. Daffron was, at the absolute latest,
on notice of a claim against Memorial. This was 13 months before she sent pre-suit
notice, outside the statute of limitations. Ms. Daffron possessed constructive if not actual
knowledge of her father’s claim against Memorial more than one year before sending her
pre-suit notice, and the complaint was filed outside the statute of limitations. We agree
with the Trial Court that no reasonable trier of fact could determine otherwise.
Courts prefer to resolve cases on their merits. We acknowledge this is a harsh
result, especially when one considers that Ms. Daffron’s knowledge triggering the statute
of limitations came about, to a large extent, as a result of her commendable closeness to
her father in his last months. Nevertheless, we are constrained to adhere to Tennessee
law. By December 2013, when Ms. Daffron sought out a lawyer after the conversation
with the nurse, and certainly no later than March 2014 when she obtained Decedent’s
medical records, Ms. Daffron had everything she needed to ascertain the injury, the
wrongful actions, and the responsible party. Applying either date, Ms. Daffron’s pre-suit
notice and the lawsuit were untimely filed. We hold that Memorial is entitled to
judgment as a matter of law. We affirm the judgment of the Trial Court.
Conclusion
The judgment of the Trial Court is affirmed, and this cause is remanded to the
Trial Court for collection of the costs below. The costs on appeal are assessed against the
Appellant, Teresa M. Daffron, as daughter, next of kin to and as the administrator of the
estate of Wiley E. Daffron, and her surety, if any.
____________________________________
D. MICHAEL SWINEY, CHIEF JUDGE
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