Day on Torts
Woodruff v. Walker, No. W2016-01895-COA-R3-CV (Tenn. Ct. App. May 26, 2017) is anHCLA case that addressed the timeliness of plaintiffs’ claims.
Plaintiffs, a mother and child, filed suit alleging that “both plaintiffs suffered permanent injuries resulting from the defendant health care providers’ negligent care during the child’s birth in June 2012.” Mother suffered from a neuromuscular condition both before and during her pregnancy, which necessitated various treatments during her pregnancy, including treatment with a maternal fetal medicine specialist. The specialist met with mother five times during her pregnancy. Approximately three weeks before she delivered, mother was admitted to the hospital “with exacerbated symptoms” of her neuromuscular condition, where she stayed for approximately six days.
When mother eventually went into labor, she was admitted to the hospital around 3:42 a.m. She was monitored, given Pitocin, and eventually given small doses of an epidural. The medical team eventually determined that mother’s “exacerbated” symptoms of her condition “made it unsafe to continue the labor and deliver the child vaginally.” Mother’s oxygen was low, and she reported trouble breathing, but one defendant doctor “insisted on doing a vaginal exam” before the caesarian section. During this exam, “Mother stopped breathing and went into respiratory and cardiac arrest.” An emergency c-section was performed, and mother and child both suffered “serious permanent injuries and brain damage resulting from the lack of oxygen during the delivery.”
The delivery, and thus the injury, occurred on June 21, 2012. Plaintiffs gave pre-suit notice of this suit on April 17, 2015 and filed the complaint on September 29, 2015. Defendants filed motions to dismiss, asserting that mother’s claims were barred by the one-year statute of limitations and that child’s claims were barred by the three-year statute of repose. The trial court granted the motions, which the Court of Appeals affirmed as to mother but reversed as to child.
Mother’s claim was inarguably filed more than one-year after the injury. Tenn. Code Ann. § 29-26-116(a)(1) provides a one-year statute of limitations for HCLA claims, but mother argued that dismissal was inappropriate due to both the discovery rule and tolling for incompetency. “Under the discovery rule, a claim accrues and the statute of limitations begins to run when the plaintiff discovers (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.” Plaintiffs attempting to use the discovery rule, though, cannot “delay…filing their complaints until they know the full extent of the damages, the specific type of legal claim they have, or all of the facts that affect the merits of the claim.”
Here, plaintiff argued that her claims against the maternal fetal medicine specialist and his employer were not discovered until March 2015, and that her complaint against them was therefore timely. Accordingly to plaintiff, the specialist “testified in a May 2013 deposition that he did not have any involvement in Mother’s treatment on June 21, 2012,” and that he stated he was only in her room that day for a “social visit.” Later, in March 2015, another doctor’s deposition revealed the “true extent of [the specialist’s] involvement in Mother’s treatment,” as the other doctor testified that the specialist was consulted and recommended certain medication. Plaintiffs asserted that only during that March 2015 deposition did they discover their claim against the specialist. The Court rejected this argument, finding:
Plaintiffs do not dispute that they were aware of their injuries on [June 21, 2012]. Additionally, Plaintiffs do not dispute that they were aware of [the specialist’s] presence in the hospital room during Mother’s labor on that date. Those two facts alone were sufficient to alert a reasonable person of the need to investigate any potential wrongful conduct by [the specialist]. …[T]he discovery rule did not delay the accrual of Plaintiffs’ claims in this case.
Next, mother argued that her claims were tolled under Tennessee’s legal incapacity statute, Tenn. Code Ann. § 28-1-106. That statute, though, “requires an individual to be ‘adjudicated incompetent’ at the time his or her cause of action accrued in order to toll the statute of limitations.” The Court found this language to be “clear and unambiguous,” and since plaintiff mother had not been adjudicated incompetent at the time the injury occurred, this statute did not apply to toll the limitations period. Further, the Court specifically rejected plaintiff’s argument that this case should be viewed differently because “mother was rendered incompetent by the wrongful conduct on which her claims are based.”
Because the discovery rule did not apply and mother did not fall within the parameters of the legal incapacity tolling statute, her claims were time-barred by the statute of limitations and dismissal of her claims was affirmed.
Next, the Court analyzed the dismissal of child’s claims under the three-year statute of repose found in Tenn. Code Ann. § 29-26-116(a)(3). While the statute of repose for HCLA claims is not tolled by a plaintiff’s minority like the statute of limitations is, it is subject to the 120-day extension of the limitations period if the plaintiff has given proper pre-suit notice. Here, if child was entitled to the 120-day extension, his filing was within the statute of repose; if not, however, his claim was also time barred.
Defendants argued that the pre-suit notice was insufficient because the HIPAA authorization left out relevant medical records. The authorization only covered the records from the actual day of the injury/birth, one day of treatment following the injury, and one of mother’s prenatal visits. Defendants asserted that the authorizations should have included all prenatal treatment, specifically the treatment when mother was hospitalized approximately three weeks before giving birth. For the purposes of the child’s claim, however, the Court of Appeals held that the additional records sought were mother’s separate records, and that “Defendants [had] not cited any legal authority that would authorize Child or Child’s guardian to release medical records that belong to Mother.” The Court stated that “the medical authorizations provided with Child’s pre-suit notice cannot be deemed insufficient solely because they do not authorize the release of medical records that Child had no authority to release.”
Defendants also argued that child’s HIPAA release was insufficient because it did not include all the treatment child received in the hospital following his birth. The Court also rejected this assertion, finding that because “Plaintiffs’ claims are related to Defendants’ failure to recognize and take action in response to Mother’s deteriorating condition during her labor on June 21, 2012,” records related to the child’s following hospitalization “were not relevant to Defendants’ evaluation of Plaintiffs’ claims.” The pre-suit notice was thus deemed sufficient, meaning that child was entitled to the 120-day extension of the statute of repose and his claims were timely filed. Dismissal of child’s claims was accordingly reversed.
This case highlights an important change in Tennessee law made in 2011—the addition of the term “adjudicated incompetent” to the statute governing the tolling of limitations periods due to incapacity. In cases like this one, where the plaintiff is rendered incapacitated by the very injury at the heart of the suit, the plaintiff’s conservator must be diligent and understand that the one-year statute of limitations for an HCLA claim (or another personal injury claim) will not be tolled. In the view of this writer, the new law is unjust and puts an undue burden on the family members of incompetents.
This case also makes the interesting point that when there are multiple HCLA plaintiffs, whether pre-suit notice is sufficient should be judged individually. Just because the notice might be insufficient as to one plaintiff does not necessarily mean that it is insufficient as to all the plaintiffs.
One last point. There needs to be a serious discussion about the interplay of the discovery rule and the pre-suit notice / certificate of good faith requirements in health care liability cases. In these cases, it is often difficult to understand the role played by health care providers – the chart is silent or incomplete or sometimes just wrong. Thus, you often cannot learn the real facts until suit is filed and discovery is taken. It often takes months to set up depositions in a health care liability action because multiple parties (and thus multiple lawyers) are involved. And it is hard to find a qualified doctor to give a certificate of good faith against a doctor who, on the record, appears to have limited involvement in the care of the patient. So, there is a real tension between the ability to get the proper defendants in the action, the one-year statute of limitation, the financial penalties for suing someone who should not have been sued, etc.
Look for an effort to ask the Tennessee Supreme Court to look at this case.