Stanbury v. Bacardi

IN THE SUPREME COURT OF TENNESSEE

AT NASHVILLE

THERESA STANBURY and spouse, ) FOR PUBLICATION
JOHN STANBURY, )
) Filed: October 20, 1997
Plaintiffs-Appellants, )
) DAVIDSON COUNTY
v. )
) Hon. Hamilton V. Gayden, Jr.,
BRIAN E. BACARDI, ) Judge
)
Defendant-Appellee. ) Appeal No.
) 01S01-9609-CV-00178
FILED
October 20, 1997

Cecil W. Crowson
Appellate Court Clerk

For Plaintiffs-Appellants: For Defendant-Appellee:
Helen Sfikas Rogers Lela M. Hollabaugh
JONES, ROGERS & FITZPATRICK MANIER, HEROD, HOLLABAUGH & SMITH
Nashville, Tennessee Nashville, Tennessee

OPINION

COURT OF APPEALS AFFIRMED. DROWOTA, J.
 In this appeal we must determine whether the common law “continuing

medical treatment doctrine” remains viable in Tennessee and operates to toll the

statute of limitations in medical malpractice cases until the termination of treatment

or the physician/patient relationship. Relying upon that doctrine, the plaintiffs,

Theresa and John Stanbury, argue that the Court of Appeals erred by dismissing this

medical malpractice action which was filed within one year of Theresa Stanbury’s last

office visit with the defendant Dr. Brian E. Bacardi, a podiatrist. The Court of

Appeals found the doctrine inapplicable under the facts of this case, and, in addition

observed that its applicability has been eroded or eliminated in this State by judicial

and legislative adoption of the discovery rule.1 In a separate opinion, Judge Koch

concluded that the doctrine has been completely subsumed into the discovery rule,

and he urged that its abolition be expressly recognized.

We conclude that the common law doctrine of continuing medical treatment

has been completely abrogated by adoption of the discovery rule in Tennessee.

Accordingly, for the reasons explained hereafter, we affirm the decision of the Court

of Appeals dismissing the plaintiffs’ complaint.

BACKGROUND

In 1991, Theresa Stanbury worked on the assembly line at the Saturn

Corporation in Spring Hill, Tennessee. She developed a corn on the fifth toe of her

right foot which caused discomfort while she stood during her ten hour shift. A

1
Teeters v. Currey, 518 S.W.2d 512, 517 (Tenn. 1974); Tenn. Code Ann. § 29-26-
116(a)(2)(1980).

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physician removed the corn and recommended that Stanbury consult a podiatrist.

On November 22, 1991, Stanbury met with Dr. Brian Bacardi. After a cursory

examination, Dr. Bacardi recommended a minor surgical procedure to prevent the

fifth toe on Stanbury’s right foot from lying on top of her fourth toe. Dr. Bacardi

assured Stanbury that recovery time following the surgery would be short and her

work schedule would not be interrupted.

Stanbury signed two consent forms prior to the December 11, 1991 surgery.

One document on Dr. Bacardi’s stationery entitled “Surgery Informer” contained a

brief discussion of the general risks and complications of surgery, but did not identify

the type of surgery Dr. Bacardi planned to perform. The second document was a

Centennial Medical Center form entitled “Consent for Operation, Administration of

Anesthesia and Other Procedures.” In the space provided for describing the

operation to be performed, someone hand wrote: ”Bilateral Osteotomy, Bilateral

Repair Tailor Bunion, Bilateral Arthroplasty, Bilateral Realignment Digit 4 and 5,

Bilateral Removal 5th Toenail.” Stanbury asserts that she was not informed about

the nature of these procedures and that she did not know that she had consented to

surgical procedures on both her feet. Stanbury said that she did not knowingly

consent to anything other than the minor procedure Dr. Bacardi had described in his

office on November 22.

On December 11, 1991, Dr. Bacardi performed extensive surgery on both of

Stanbury’s feet while she was under a general anesthetic. During the mid-afternoon,

Stanbury was released from the hospital, and exited in a wheelchair with both feet

heavily bandaged. Although she could remember very little about the afternoon

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following surgery, Stanbury said that over the following days she realized that surgery

had been performed on both her feet, and she described her feet as “[t]wo big white

blobs.” When Dr. Bacardi removed the surgical dressing during her first office visit

on December 20, 1991, nine days after surgery, Stanbury said she was in “complete

and utter shock” and that she “couldn’t believe all that had been done. There were

so many stitches and so many things, it was just unbelievable.” Stanbury also

noticed that the fifth toe of her right foot was not touching the floor but rather was

pointing straight up in the air. Stanbury said she did not specifically ask Dr. Bacardi

why he had performed surgery on her left foot; however, she asked him generally

what he had done to her feet. According to Stanbury, Dr. Bacardi was very vague

and told her the surgery was necessary to correct hereditary problems.

Stanbury had four more office visits with Dr. Bacardi between January 10 and

March 17, 1992. On April 3, 1992, Dr. Bacardi performed additional surgery to

correct the misalignment of the fifth toe on Stanbury’s right foot. During a post-

operative visit on May 5, 1992, Dr. Bacardi told Stanbury that there was nothing more

he could do for her and that it would take approximately one year for her feet to fully

heal.

Theresa Stanbury2 filed a malpractice action against Dr. Bacardi and Hospital

Corporation of America3 on April 30, 1993. She alleged that Dr. Bacardi had been

negligent in advising her to have surgery, in performing the surgery, and in providing

2
John Stanbury claimed loss of consortium.

3
On June 9, 1993, the plaintiffs voluntarily dismissed all claims against Hospital Corporation
of Am erica , d/b/a Cen tenn ial Ho spita l, and it is not a par ty to this appe al.

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her post-operative care. Stanbury also alleged that Dr. Bacardi had performed

unnecessary surgery, that he had failed to obtain her consent to the surgery

performed on December 11, 1991, that he had ignored her complaints of pain and

infection, and that he had falsified office notes to conceal her actual condition. Dr.

Bacardi responded, denying all wrongdoing and asserting that the claims were barred

by the statute of limitations.

At the close of the plaintiffs’ proof in the jury trial, the trial court directed a

verdict in favor of Dr. Bacardi on the theories of negligent post-operative care,

ignoring Stanbury’s complaints of pain and infection, and intentionally falsifying office

notes to conceal her true condition. The defendant moved for a directed verdict on

the basis that all claims were barred by the one year statute of limitations of the

Tennessee Medical Malpractice Act,4 but the trial court denied that motion finding that

Dr. Bacardi had provided continuing care to Stanbury through the final office visit on

May 5, 1992, which was within one year of the date she filed suit. The trial court

submitted to the jury the plaintiff’s claims concerning lack of informed consent,

advising and performing unnecessary surgery, and negligently performing the

surgeries. In response to a question which arose during jury deliberations, however,

the trial court withdrew the claim for negligently performing the surgeries. The jury

returned a general verdict in favor of the plaintiffs awarding Theresa Stanbury

$211,000 and John Stanbury $10,000.

4
Tenn. Code A nn. § 29-26-116(1980).

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 The defendant appealed, and the Court of Appeals reversed the judgment in

favor of the plaintiffs and dismissed the complaint, finding that the claims were barred

by the one year statute of limitations. The intermediate court found the continuing

medical treatment doctrine inapplicable under the facts of this case, and, in addition,

observed that its applicability has been eroded or eliminated in this State by judicial

and legislative adoption of the discovery rule. Judge Koch, in a separate opinion,

agreed with the majority that the informed consent claims were barred by the statute

of limitations. Finding that the continuing medical treatment doctrine has been

completely subsumed into the discovery rule, Judge Koch urged that its abolition be

expressly recognized. However, he dissented from dismissal of the entire case.

Since Stanbury’s unnecessary surgery claim was filed within one year of the time she

was informed by another health care professional that the initial surgery was

unnecessary, Judge Koch opined that it had been timely filed within one year of its

discovery.

Thereafter, we granted the plaintiffs permission to appeal to determine

whether the common law “continuing medical treatment doctrine” remains viable in

Tennessee. For the reasons that follow, we conclude that the common law doctrine

has been subsumed by the discovery rule and therefore affirm the judgment of the

Court of Appeals dismissing the complaint.

CONTINUING MEDICAL TREATMENT DOCTRINE

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 Until December 1974,5 negligence actions against health care providers, like

all other actions for injuries to the person in Tennessee, were required to be filed

within one year after the date of the wrongful act that caused the plaintiff’s injury.

Albert v. Sherman, 167 Tenn. 133, 135, 67 S.W.2d 140, 141 (1934); Bodne v. Austin,

156 Tenn. 353, 364-65, 2 S.W.2d 100, 103 (1928); Tenn. Code Ann. § 28-304. The

two most common exceptions to this rule involved continuing torts and fraudulent

concealment of the injury.6

In 1938, the intermediate appellate court adopted the continuing tort principle

in a case involving an employee who had become disabled by breathing chemical

particles in his employer’s plant over an extended period of time. Noting that the

employer had a duty to protect its employees from breathing these particles, the court

held that the employer had committed “one continuous tort, beginning with the

employment and ending only at the time of total disability of the employee and the

termination of his employment.” Tennessee Eastman Corp. v. Newman, 22 Tenn.

5
Teete rs v. Currey, 518 S.W .2d 512, 5 17 (Te nn. 1974 ); Tenn . Code A nn. §29-26-
116(a)(2)(1980).

6
As Judg e Ko ch re cog nized , the fa cts o f this c ase do no t sup port th e pla intiff’s claim of
fraudulent conc ealm ent. T o est ablish frau dulen t con cea lme nt a p laintiff must prove (1) that the
defendant took aff irmative action to co nceal the cause of action o r rem ained silen t and failed to
disclose essen tial facts des pite a duty to do so and (2) the plaintiff could not have discovered the cause
of action de spite exe rcising rea sonab le diligence. Benton v. Snyder, 825 S.W.2d 409, 414 (Tenn.
1992). Because Dr. Bacardi affirmatively and repeatedly advised the plaintiff to wait a year (the precise
statutory time period within which she had to file a malpractice action) for he r fee t to co mp letely h eal,
the proo f in this record supports the first prong of the fraudulent concealment exception. However, the
defense does not a pply because, as we hold, the plaintiff could have discovered the injury through the
exercise of reaso nable diligen ce. Comp are Hall v. De Saussure, 297 S.W.2d 81 (Tenn. App. 1956)
(A physician performed surgery upon the spine of the plaintiff which had not been authorized. The
physician did not inform the plaintiff about the unauthorized procedure. The plaintiff did not discover
the injury until after the expiration of the one year statute of limitations when another physician made
an x-ra y and in form ed th e plain tiff of th e true char acte r of th e sur gery. T he pla intiff b roug ht su it and
the defendant alleged that th e suit was barred by the statute of limitations. Finding that the physician
had a duty to disclose the nature of the surgery because of the confidential physician-patient
relatio nsh ip and conc luding that th e plain tiff could not have discovered the cause of action by
reaso nab le diligence, the intermediate court applied the fraudulent concealment exception and held
that the su it had bee n timely filed.)

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App. 270, 279, 121 S.W.2d 130, 135 (1938). Accordingly, the employee’s action filed

within one year of the onset of his disability and the termination of his employment

was held to be timely filed. Id.; see also Steiner v. Spencer, 24 Tenn.App. 389, 145

S.W.2d 547 (1940).

Several years later, the intermediate appellate court extended the continuing

tort principle to medical malpractice actions. In Frazor v. Osborne, 57 Tenn.App. 10,

414 S.W.2d 118 (1966), the plaintiff brought a medical malpractice action against her

physician and the hospital in which she had undergone surgery over ten years earlier.

During the operation, in 1952, a surgical sponge was placed in her body and

negligently left there upon the operation’s completion. Over the next ten years, the

plaintiff was under the defendant doctor’s care and throughout that time, the incision

from plaintiff’s operation remained open and infected, and as a result, she suffered

severe pain and was eventually totally disabled. On May 2, 1961, some members

of the plaintiff’s family noticed that threads were beginning to work out of the incision.

When Frazor’s family was unable to locate Dr. Osborne, one of his associates made

a house call, probed the incision, and removed portions of the embedded sponge.

The remainder of the embedded sponge was removed shortly thereafter, and within

a few days, the incision completely healed and never caused the plaintiff further

problems.

The plaintiff brought suit in 1962, within one year of the date the sponge was

discovered and removed. The trial court directed a verdict for the defendant doctor

and hospital finding the action barred by the one year statute of limitations. The

Court of Appeals affirmed the trial court’s judgment as to the hospital, but reversed

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as to the doctor, finding that the plaintiff’s cause of action did not accrue until the

physician/patient relationship terminated. Accordingly, in the context of medical

malpractice cases, the continuing tort principle became known as the continuing

medical treatment doctrine.

Six years after Frazor was decided, this Court, in Teeters v. Currey, 518

S.W.2d 512 (Tenn. 1974), adopted the discovery rule for determining when the

statute of limitations begins to run in medical malpractice actions. In that case, the

continuing treatment doctrine was unavailable because the doctor-patient relationship

had terminated approximately three years before the suit was filed. Teeters,

following the birth of a normal child, developed medical complications which led Dr.

Currey, her attending physician, to recommend a tubal ligation to prevent future

pregnancies. Teeters followed his advice and Dr. Currey performed the procedure

on June 6, 1970. On December 6, 1972, Teeters was informed that she was

pregnant, and on March 9, 1973, Teeters gave birth to a premature child with severe

complications. Following a second bilateral tubal ligation, Teeters brought suit

against Dr. Currey on November 15, 1973, almost three and one-half years after the

initial surgery, but only eleven months after discovering her pregnancy.

In concluding that the plaintiff’s claim was timely filed, this Court held that “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.” Teeters, 518

S.W.2d at 515. In choosing to adopt the discovery rule, this Court refused to

embrace a rule of law which would require a plaintiff to sue to vindicate a non-existing

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wrong at a time when the injury is “unknown and unknowable.” Id. This Court did not

address the relationship between the newly adopted discovery rule and the

continuing medical treatment doctrine.

Approximately six months later, the General Assembly included the discovery

rule as part of the Medical Malpractice Claims Act of 1975. Now codified at Tenn.

Code Ann. § 29-26-116, the legislative statute of limitations provides, in pertinent

part, as follows:

(a)(1) The statute of limitations in malpractice actions shall be one (1)
year as set forth in § 28-3-104.
(2) In the event the alleged injury is not discovered within the said one
(1) year period, the period of limitation shall be one (1) year from the
date of such discovery.
(3) 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.
(4) 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.

Tenn. Code Ann. § 29-26-116 (1980). The statute of limitations has several key

elements. Section 1 grants an injured party one year within which to bring suit after

the cause of action has accrued. If an injury is not discovered within the one year

time period, Section 2 allows the injured party one year within which to bring suit from

the date of discovery, but Section 3 (a statute of repose) imposes a three-year ceiling

upon that right. If there is fraudulent concealment on the part of the physician or if

a foreign object has been negligently left in a patient’s body by the physician, as was

the case in Frazor, supra, the injured party is entitled to commence a lawsuit within

one year after discovery of the fraudulent concealment or foreign object. Hoffman

v. Hospital Affiliates, Inc, 652 S.W.2d 341 (Tenn. 1983).

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 Neither this Court in Teeters, nor the General Assembly in the statute,

explicitly addressed the viability of the continuing medical treatment doctrine.

Therefore, the dispositive inquiry in this appeal is whether the common law continuing

medical treatment doctrine has been abrogated by judicial and legislative adoption

of the discovery rule in this State. We join the intermediate appellate court and

conclude that the doctrine has been abrogated.7

The common law doctrine has been described as follows:

[I]f the facts show continuing medical or surgical treatment for a
particular illness or condition in the course of which there is malpractice
producing or aggravating harm, the cause of action of the patient
accrues at the end of the treatment for that particular illness, injury or
condition, unless the patient sooner knew or reasonably should have
known of the injury or harm. . . .”

Hecht v. Resolution Trust Corp., 635 A.2d 394, 401 (Md. 1994); Robinson v. Mount

Sinai Medical Center, 402 N.W.2d 711, 716 (Wis. 1987). The rationale underlying

the rule is that a patient must trust a physician to remain in his care and during that

care, the patient is not likely to suspect negligent treatment. “It is the trust

relationship that may make discovery of a claim difficult.” Wheeler v. Schmid

Laboratories, Inc., 451 N.W.2d 133, 138 (N.D. 1990).

Considering the formulation of the doctrine, and the rationale upon which it is

based, it is clear that the continuing medical treatment doctrine is merely a

particularized application of the discovery rule. The rule presumes, for policy

reasons, that a patient has not discovered an injury during the time medical treatment

continues. If there is actual proof that the patient knows or reasonably should know

7
See also Hou sh v. M orris , 818 S.W .2d 39, 43-44 (Tenn. App. 199 1).

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of the injury or harm before termination of medical treatment, the statute of limitations

is not tolled. The rule has outlived its necessity in light of the comprehensive medical

malpractice statute of limitations which requires that suit be brought within one year

of the negligent act or within one year of discovery. The statute contains explicit

exceptions for fraudulent concealment and foreign objects which more often result

in lengthy delays. Although the common law doctrine still is recognized in some

jurisdictions,8 it has been judicially or legislatively abrogated in many states following

adoption of the discovery rule. See e.g. Jones v. McDonald, 631 So.2d 869, 873

(Ala. 1993); Ewing v. Beck, 520 A.2d 653 (Del. 1987); Cunningham v. Huffman, 609

N.E.2d 321 (Ill. 1993); Hecht v. First National Bank & Trust Co., 490 P.2d 649 (Kan

1971); Hill v. Fitzgerald, 501 A.2d 27 (Md. 1985); Crumpton v. Humana, Inc., 661

P.2d 54 (N.M. 1983); Russo v. Diethrick, 617 P.2d 30, 35 (Ariz. Ct. App. 1980). The

time for its express abolition has arrived in Tennessee as well.

Having decided that the continuing medical treatment doctrine has been

abrogated by adoption of the discovery rule, we must next determine whether the

Court of Appeals erred in concluding that the plaintiff’s claims are time-barred.

Without question, the plaintiff’s lawsuit was not filed within one year of the alleged

negligent act, the surgery on December 11, 1991. We must therefore determine

whether suit was filed within one year of discovery of an injury.

8
Com men t, When Your Doctor Says, “You Have Nothing to Worry About” Don’t Be So Sure:
The Effect of Fabio v. Bellomo on Medical Malpractice Actions in Minnes ota, 78 Minn. L. Rev. 943, n.53
(Apr il, 1994). Several of the jurisdictions which continue to apply the doctrine have not adopted the
discovery rule. See e.g. Healy v. Langdon, 511 S.W.2d 498 (N eb. 1994 ); Aubin v. Burke, 434 N.W.2d
282 (Minn. Ct. App. 1989).

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 We begin our analysis of this issue with the principle that the statute of

limitations commences to run when the patient knows or in the exercise of

reasonable care and diligence should know, that an injury has been sustained.

Teeters, 518 S.W.2d at 515; see also Wyatt v. A-Best, Co., Inc., 910 S.W.2d 851,

854 (Tenn. 1995). In other words, the statute of limitations in a medical malpractice

case is tolled until the plaintiff “discovered, or reasonably should have discovered, (1)

the occasion, the manner, and the means by which a breach of duty occurred that

produced his injuries; and (2) the identity of the defendant who breached the duty.”

Foster v. Harris, 633 S.W.2d 304 (Tenn. 1982). However, it is not necessary that the

plaintiff

actually know that the injury constitutes a breach of the appropriate
legal standard in order to discover that he has a ‘right of action;’ the
plaintiff is deemed to have discovered the right of action if he is aware
of facts sufficient to put a reasonable person on notice that he has
suffered an injury as a result of wrongful conduct.

Roe v. Jefferson, 875 S.W.2d 653, 657 (Tenn. 1994); see also Carvell v. Bottoms,

900 S.W.2d 23, 29 (Tenn. 1995).

Applying that standard to the facts in this case, it is clear that the plaintiff’s

medical malpractice lawsuit is time-barred. Dr. Bacardi performed surgery on

Theresa Stanbury’s feet on December 11, 1991. A few days after surgery, Stanbury

realized that both feet were bandaged and she described them as “[t]wo big white

blobs.” Stanbury maintains that she knowingly consented to surgery on her right foot

only. According to Stanbury, she had no medical problems with her left foot prior to

the surgery performed by Dr. Bacardi. When she questioned Dr. Bacardi about the

reason for the surgery, Stanbury said she received a very vague response. Based on

the record, it appears that shortly after the surgery, Stanbury was aware of facts

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sufficient to put a reasonable person on notice that she had suffered an injury as a

result of wrongful conduct. Not only was she aware of the occasion, manner, and

means by which the breach of duty producing her injuries occurred, she also knew

the identity of the person who breached the duty.

Even assuming that her claim for lack of informed consent is barred by the

statute of limitations, the plaintiff maintains that she had not discovered her claim of

unnecessary surgery until she was informed by another health care professional that

Dr. Bacardi deviated from the standard of care for podiatrists by failing to follow a

conservative treatment regime before recommending surgery. Since she filed suit

within one year of receiving that information, Stanbury argues that her claim was

timely filed. We disagree.

We emphasize that under the discovery rule, the statute begins to run when

the plaintiff knows or in the exercise of reasonable care and diligence should know,

that an injury has been sustained. It is knowledge of facts sufficient to put a plaintiff

on notice that an injury has been sustained which is crucial. Again, a plaintiff need

not “actually know that the injury constitutes a breach of the appropriate legal

standard in order to discover that he has a ‘right of action.’” Roe, 875 S.W.2d at 657;

see also Carvell v. Bottoms, 900 S.W.2d at 29. In other words, a plaintiff need not

actually know the specific type of legal claim he or she has so long as the plaintiff is

“aware of facts sufficient to put a reasonable person on notice that he has suffered

an injury as a result of wrongful conduct.” Id. In this case, the plaintiff was aware of

facts sufficient to put a reasonable person on notice that she had suffered an injury

as a result of the surgery. Advice from another health care professional that a claim

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exists is not a prerequisite to accrual of a medical malpractice cause of action. In

fact, we have specifically rejected such a requirement in the context of medical and

legal malpractice actions. Roe, 857 S.W.2d at 658; Carvell, 900 S.W.2d at 29. Even

assuming Tennessee applied such a rule, which it does not, in this case the plaintiff’s

assertion that she was unaware of her claim for unnecessary surgery until advised

by another health care professional is unpersuasive because she was not so advised

until after she filed the complaint in this case alleging unnecessary surgery.

Stanbury knew or reasonably should have known that she had a right of action

against the defendant, at the latest, by the time of the February, 1992 office visit,

when she realized that the fifth toe on her foot was not in a normal position. However,

more than fourteen months had passed before suit was filed on April 30, 1993.

Accordingly, the plaintiff’s lawsuit is time-barred.

CONCLUSION

Because we conclude that the continuing medical treatment doctrine was

abrogated by adoption of the discovery rule, and the plaintiff’s action was not

instituted within one year of discovery, the lawsuit is time-barred by the statute of

limitations. Accordingly, we affirm the judgment of the Court of Appeals dismissing

the complaint.

_______________________________________
FRANK F. DROWOTA III
JUSTICE

Concur:
Anderson, C. J.
Reid, Birch, Holder, JJ.

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