holding that the plaintiff’s due diligence was jury question when the plaintiff was aware of neither the injury nor the identity of the tortfeasor during the disputed time period
How later courts described this case
- holding that the plaintiff’s due diligence was jury question when the plaintiff was aware of neither the injury nor the identity of the tortfeasor during the disputed time period
- “[W]hether due diligence . . . required an examination of public records or any other particular form of investigation is properly a question for the trier of fact after hearing all of the evidence, rather than a question of law to be determined by summary judgment based upon the limited evidence in this record.”
- trial court granted summary judgment for defense on wrongful-death claim on ground that it was time-barred, and appeals court reversed
- “A deceased’s personal representative is charged with the same duty of discovery that would have been imposed on the deceased had he survived.”
Written by the judges who cited it.
The opinion
KOCH, Judge,
concurring opinion.
The sole issue in this case is whether the “discovery rule” generally applied in personal tort actions is available in medical malpractice cases in which the injured party has died as a result of the negligent act. The majority has concluded that it does, and I concur with this result. It was foretold in Gosnell v. Ashland Chemical, Inc., 674 S.W.2d 737, 739 (Tenn.Ct.App.1984). Notwithstanding the appellees’ criticism of this case, it has been approved by the Tennessee Supreme Court. 1
At common law, every right of action for personal injury abated with the death of the injured person. Trafford v. Adams Express Co., 76 Tenn. 96, 97-98 (1881) and Griffith v. Beasly, 18 Tenn. (10 Yer.) 434 , 437 (1837). This rule was changed in Tennessee when the General Assembly enacted Chapter 17, Public Acts of 1851 which is now codified at Tenn.Code Ann. § 20-5-106. This statute creates no new right of action but merely keeps alive the right the deceased would have had and passes it to his personal representatives. Southeastern Aviation, Inc. v. Hurd, 209 Tenn. 639, 653 , 355 S.W.2d 436, 442 (1962). After the adoption of Tenn.Code Ann. § 20-5-106, a deceased’s cause of action must be treated as if the injured party brought it. Memphis Street Railway Co. v. Cooper, 203 Tenn. 425, 432 , 313 S.W.2d 444, 448 (1958). Thus, whatever procedural rights an injured person has in life, the person’s representatives have after his death.
Tenn.Code Ann. § 20-5-106, commonly known as Tennessee’s “wrongful death statute,” has no statute of limitations of its own. Of necessity it incorporates the statute of limitations applicable to the cause of action that survives after the death of the injured party. This explains why many decisions refer to a one year statute of limitations in “wrongful death actions.” Since these actions actually stem from deaths caused by negligent acts, the one year statute of limitations applicable to personal tort actions, Tenn.Code Ann. § 28-3-104(a), is applicable in these cases. Tenn. Code Ann. § 29-26-116 (a)(l) provides that this statute of limitations is also applicable in medical malpractice actions.
The Tennessee Supreme Court has applied the “discovery rule” to all personal tort actions including medical malpractice cases. Foster v. Harris, 633 S.W.2d 304, 305 (Tenn.1982); McCroskey v. Bryant Air Conditioning Co., 524 S.W.2d 487, 491 (Tenn.1975); and Teeters v. Currey, 518 S.W.2d 512, 517 (Tenn.1974). If “the discovery rule” is available to an injured person in life, it should be equally available to an injured person in death but only to the extent that the injured person could assert it if he were still living.
A deceased person’s personal representative is charged with the same duty of discovery that would have been imposed upon the deceased had he survived. I am not prepared to find that Cora Odell Hathaway, in the exercise of reasonable care and diligence, should have discovered that a tortuous act caused her father’s death any earlier than she actually discovered it. The summary judgment should have been denied for this reason.
. The Tennessee Supreme Court denied the Tenn.R.App.P. 11 application for permission to appeal on May 21, 1984. This action indicates that the Court approves of the opinion's reasoning and result. Pairamore v. Pairamore, 547 S.W.2d 545, 548 (Tenn.1977) and Beard v. Beard, 158 Tenn. 437, 442 , 14 S.W.2d 745, 747 (1929).