Jones v. MORRISTOWN-HAMBLEN HOSPITAL ASS'N

OPINION

FRANKS, Judge.

This case presents a question of application of the Medical Malpractice Review Board and Claims Act, codified at T.C.A. § 23-3401, et seq.

Franklin N. Jones, husband and next of kin of Daphne Ann Seals Jones, deceased, brought suit for damages for the wrongful death of his wife against Dr. Eugene Rut-land and the Morristown-Hamblen Hospital Association, Inc. Following a hearing and arguments by counsel, the circuit judge granted the defendants’ joint motion for summary judgment finding the plaintiff’s cause of action barred by the three-year maximum limitations period of the Act. Plaintiff had perfected his appeal to this court, assigning as error the sustaining of the motion.

The legal and factual chronology is as follows:

On May 30,1970, the decedent underwent the surgical removal of a small mole located on her neck approximately one inch below her ear. The operation was performed at Morristown-Hamblen hospital by her per*818sonal physician, Dr. John Caldwell. Miss Seals was fourteen years old at the time of the operation.

The surgically removed specimen labeled “nevus of the neck” was taken to the pathology department where it was visually examined by Dr. Clelarid Blake, the chief pathologist working under contract with Morristown-Hamblen. A slide was then prepared from the specimen.

The following morning, June 2, the slide was microscopically examined by Dr. Rut-land, a pathologist working under Dr. Blake, and the specimen diagnosed as an “active junctional nevus, skin.” The pathological report was sent to Dr. Caldwell who interpreted the diagnosis to mean that the tissue was benign since all tissue of a person this age is active or growing. The decedent was shortly thereafter released from the hospital.

Over the next few years, decedent lived a normal life, completing her schooling, working, and getting married. During that period, she occasionally visited Dr. Caldwell for routine examinations and minor medical problems. On January 10, 1974, she attained her majority.

On December 9, 1974, the Tennessee Supreme Court decided the case of Teeters v. Currey, 518 S.W.2d 512 (Tenn.1974), which applied the “discovery” rule to medical malpractice cases in this state.

On May 1, 1975, the Medical Malpractice Review Board and Claims Act was enacted, effective July 1, 1975.

On December 15, 1975, decedent suffered a seizure and was hospitalized. Tests and exploratory surgery were performed, which revealed the existence of malignancies in the lungs and brain. This occurred on January 13, 1976. Decedent was thereafter transferred to a specialized hospital in Houston, Texas, where her condition was diagnosed as metastatic malignant melanoma. Metastatic means that the malignant cells were transported either by the blood stream or lymph system from the primary tumor to other parts of the body.

Mrs. Jones died on May 31, 1976, at the age of twenty. On January 7, 1977, the decedent’s husband filed this suit.

From the numerous depositions submitted during the argument for summary judgment, two facts appear reasonably certain. First, the tissue in the slide was malignant both when it was examined by numerous doctors after the death of the decedent and at the time of the initial diagnosis. Second, the decedent did not discover and, under the exercise of reasonable diligence, probably should not have discovered her condition prior to the exploratory surgery performed on January 13, 1976. With these two points in mind and, for the purpose of this opinion, June 2,1970, will be considered the date of the allegedly negligent act, and January 13, 1976, will be considered the date of discovery.

At the time the diagnosis of the mole was made, the law in this state, like that in the majority of jurisdictions, was that the statute of limitations for personal injury began to run or, in other words, accrued on the date that the negligent act causing the injury occurred. Hall v. DeSaussure, 41 Tenn.App. 572, 297 S.W.2d 81 (1956). This rule created illogical and often unjust results in several areas of the law, notably product liability and medical malpractice; it was possible for a plaintiff’s action to be barred before he could know if its existence, or even before an actual injury occurred.

The facts of this case illustrate that result. Under existing law, decedent had a vested right of action on June 2, 1970. Albert v. Sherman, 167 Tenn. 133, 67 S.W.2d 140 (1934); Bodne v. Austin, 156 Tenn. 366, 2 S.W.2d 104 (1928). Applying T.C.A., § 28-304, the personal injury limitation, and the minor’s saving statute, T.C.A., § 28-107, without regard to intervening changes in the law, decedent’s action would have been barred one year after her 18th birthday— January 10, 1975. This was fully one year before she had any reason to know of the existence of her “right” of action.

Recognizing the injustice of such situations the Supreme Court changed the law in *819Teeters v. Currey, supra. The holding of the Court in that case is:

We adopt as the rule of this jurisdiction the principle that in those classes of cases where medical malpractice is asserted to have occurred through the negligent performance of surgical procedures, the cause of action accrues and the statute of limitations commences to run when the patient discovers, or in the exercise of reasonable care and diligence for his own health and welfare, should have discovered the resulting injury. All cases contra are overruled. [Emphasis supplied.] 518 S.W.2d at 517.

Under this analysis, decedent’s right of action would not have been barred until one year after the discovery of malignancy, January 13, 1977. If the Medical Malpractice Act had not intervened, then, this suit would be timely filed. This result would obtain even if the statute of limitation had run on decedent’s right of action before Teeters had been decided.1 In effect, Teeters created another right of action, independent of the right of action existing under prior law, for that class of persons who do not discover their injuries during the statutory period.

However, under Teeters, that right of action did not accrue until January 13, 1976. In the interim, the Medical Malpractice Act was enacted.

T.C.A., § 23-3415(a) sets out the limitations upon malpractice actions.2

T.C.A., § 23-3420 establishes the effective date of the Act: “This chapter does not affect any malpractice actions commenced or filed before July 1, 1975.” This provision implies a clear legislative intent that the Act be given retrospective application, since any suit filed after July 1, 1975, would fall within the Act’s provisions without regard to the date of the negligent act giving rise to the cause of action.

Inasmuch as this suit was filed in January of 1977, the limitation of § 23-3415(a) is applicable to this action. However, there are limitations upon application of the Act to all cases filed after its effective date.

In the recent case of Morris v. Gross, 572 S.W.2d 902 (Tenn.1978), the Supreme Court stated:

It is well settled that a vested right of action is as much property as are tangible things and is protected from arbitrary legislation, whether such right of action be based upon the law of contracts or upon other principles of the common law. Mabry v. Baxter, [11 Heisk. 682] 58 Tenn. 682 (1872); Collins v. East Tennessee, Virginia & Georgia Railroad Company, [9 Heisk. 841] 56 Tenn. 841 (1872); Coombes v. Getz, 285 U.S. 434, 52 S.Ct. 435, 76 L.Ed. 866 (1932); Pickering v. Peskind, 43 Ohio App. 401, 183 N.E. 301 (1930); 16A C.J.S. Constitutional Law § 614 (1956). Such a vested right of action enjoys the full protection of the due process clauses of the Federal and State Constitutions. See State v. Louisiana Oil Refining Corporation, 176 So. 686 (La.App.1937), motion denied, 177 So. 476 (La.App.1937), aff’d 304 U.S. 197, 58 S.Ct. 832, 82 L.Ed. *8201287 (1938), rehearing denied, 304 U.S. 589, 58 S.Ct. 1044, 82 L.Ed. 1549 (1938).
“Vested rights include not only legal or equitable title to enforcement of a demand but also an exemption from new obligations created after the right has vested. . . . The words [vested rights] are used as implying interests which it is proper for the state to recognize and protect and of which the individual could not be deprived arbitrarily without injustice.” 16 Am. Jur.2d Constitutional Law § 421 (1964).
We recognize the general rule that no one has a vested right in a particular remedy for the enforcement of a right of action and, thus, that the legislature ordinarily may change existing remedies for the enforcement of rights, including those which have already vested, without denying due process of law, provided, a substantial remedy to redress that right by some effective procedure is given. Brandon v. Warmath, 198 Tenn. 38, 277 S.W.2d 408 (1955); Hope v. Johnson, [2 Yerg. 123] 10 Tenn. 123 (1826); Gibbes v. Zimmerman, 290 U.S. 326, 54 S.Ct. 140, 78 L.Ed. 342 (1933); 16A C.J.S. Constitutional Law § 614 (1956).
It is equally clear, however, that principles of due process forbid the legislature to abolish a remedy that has been so far carried into operation that the substantive rights of the litigants would be adversely affected if the remedy, as to them, were abolished. Fisher’s Negroes v. Dabbs, [6 Yerg. 119] 14 Tenn. 119 (1834); Mabry v. Baxter, supra; Ruecking Const. Co. v. Withnell, 269 Mo. 546, 191 S.W. 685 (1917), aff’d 249 U.S. 63, 39 S.Ct. 200, 63 L.Ed. 479 (1919); McSurely v. McGrew, 140 Iowa 163, 118 N.W. 415 (1908); Commonwealth v. Brown, 327 Pa. 136, 193 A. 258 (1937); Koger v. Ball, 497 F.2d 702 (4th Cir. 1974).

A statute of limitation, therefore, may not be given retrospective application so as to bar an accrued right of action, but may bar a cause of action which has not yet accrued or vested. See generally 16 C.J.S. Constitutional Law § 254 at p. 1242. The key question, therefore, is the status of decedent’s action on the effective date of the Act, July 1, 1975.

As outlined supra, the right of action which had accrued under pre-Teeters law was barred after January 10, 1975 — almost six months before the effective date of the Act. We do not read Teeters to extend that right. The effect of Teeters was to create another potential right of action — one which might accrue even after the limitation had run under prior law.

The argument that Teeters tolled the statute of limitations neither comports with the accrual language of the case nor, if deemed the appropriate rationale, would it extricate this case from the operation of the Act, since no right of action, i. e., a present right to sue, would exist under that theory on the effective date of the Act.

Teeters gave decedent only a potential right of action. The opinion states clearly that a right of action does not accrue until discovery of the injury. At the time of the Teeters opinion, and on the effective date of the Act, decedent had no reason to know of the injury caused on June 2, 1970.

The following discussion, taken from 1 Am.Jr.2d, Actions, § 2, illustrates the difference between a vested or accrued “right of action” and an unaccrued “cause of action”:

Although the courts sometimes confuse the term “cause of action” and “right of action” and state that a right of action at law arises from the existence of a primary right in the plaintiff, and an invasion of that right by some delict on the part of the defendant, in a legal sense, these terms are not synonymous or interchangeable. A right of action is the right to presently enforce a cause of action — a remedial right affording redress for the infringement of a legal right belonging to some definite person; a cause of action is the operative facts which give rise to such right of action. The right of action does not arise until the performance of all conditions precedent to the action, and may be taken away by the running of the statute of limitations, through an estop-*821pel, or by other circumstances which do not affect the cause of action. There may be several rights of action and one cause of action and rights may accrue at different times from the same cause.

Under Teeters, decedent had only a “cause of action” which had the potential to ripen into a “right of action”. She had no present right to sue until her action accrued, discovery being a condition precedent to the action. On the effective date of the Act, decedent had not discovered her injury; her right of action under Teeters had not accrued. The right of action which had been vested under prior law had expired.

Application of § 23-3415(a) to this suit does not impair any vested right of action existing at the time of its effective date and is, therefore, constitutionally permissible. The plain language of § 23-3420 requires the courts to apply the Act retrospectively, i. e., to any suits filed after July 1, 1975, wherever permissible. This suit is, therefore, barred.3

This result is not pleasant. Nevertheless, the clear intent of the legislature in enacting the Medical Malpractice Review Board and Claims Act dictates it. As the Supreme Court recognized in Harrison v. Schrader, 569 S.W.2d 822 (Tenn.1978), the Act was passed in an atmosphere of crisis. The medical profession and insurance industry were demanding that definite limits be imposed upon the period of a health care provider’s potential liability for any given act. The Court recognized some harsh results would flow from the legislature’s action, such was the intent of the Act.

In effect, the legislature struck a compromise between the humane and logical results of the discovery rule on the one hand and the social cost of potentially unlimited periods of liability for medical malpractice on the other. Under § 23-3415(a), it once again is possible for an individual’s right to sue to expire before its existence is known.

The judgment is affirmed with costs incident to the appeal assessed against appellant.

SANDERS, J., concurs. PARROTT, P. J., dissents.

. For example, Doe, an adult, receives negligent medical treatment in January ’73, but does not discover it until February ’75. The right of action under prior law was barred on January '74. Under Teeters, Doe could timely sue until February '76.

. 23-3415. Statute of limitations—Exceptions— (a) The statute of limitations in malpractice actions shall be one (1) year as set forth in § 28-304; provided, however, that in the event the alleged injury is not discovered within the said one (1) year period, the period of limitation shall be one (1) year from the date of such discovery; provided further, however, that in no event shall any such action be brought more than three (3) years after the date on which the negligent act or omission occurred except where there is fraudulent concealment on the part of the defendant in which case the action shall be commenced within one (1) year after discovery that the cause of action exists, and provided still further that the time limitation herein set forth shall not apply in cases where a foreign object has been negligently left in a patient’s body in which case the action shall be commenced within one (1) year after the alleged injury or wrongful act is discovered or should have been discovered.

. The three-year ceiling is merely superimposed on T.C.A., § 28- 304. “The discovery rule of the latter statute still applies subject only to the three-year ceiling, which is unrelated to the accrual of the cause of action.” Harrison v. Schrader, supra.