429 S.W.3d 536
Tenn. Ct. App.2013Background
- Decedent Cecil C. Young was hospitalized March–June 2001 and treated by Dr. Lisa Kennedy; complications included a suspected nosocomial infection (May 9, 2001), a coma (June 6, 2001), and death (June 12, 2001).
- Julia Young filed an initial wrongful-death complaint on June 11, 2002; that action was non-suited and re-filed against Dr. Kennedy on December 12, 2003 (summons issued July 28, 2004).
- Dr. Kennedy filed pre-answer motions and later an answer and motions asserting the one-year medical-malpractice statute of limitations (Tenn. Code Ann. § 29-26-116).
- The trial court found: (1) Dr. Kennedy did not waive the statute-of-limitations defense by failing to raise it in an early pre-answer motion; (2) the defense was pleaded sufficiently; and (3) the undisputed record showed the plaintiff had constructive notice by May 9 or June 6, 2001, so the June 11, 2002 filing was untimely. Summary judgment was entered for Dr. Kennedy and vicariously for Methodist.
- The Court of Appeals affirmed, applying Tennessee discovery-rule accrual law and Rule 8.03/12 waiver doctrines.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether statute-of-limitations defense was waived because Dr. Kennedy did not raise it in her first pre-answer motion | Young: failing to plead the defense in the initial pre-answer motion waived it under Tenn. R. Civ. P. 12.08 | Kennedy: pre-answer motions are not “responsive pleadings”; Rule 12.02 limits which defenses can be raised pre-answer, so failure to include SOL in a pre-answer motion does not waive it | Held: No waiver. Rule 12.02/12.08 read together do not require raising SOL in a pre-answer motion; SOL may be raised later in answer or Rule 12.02(6) motion. |
| Whether the SOL defense was insufficiently pleaded (Rule 8.03 specificity) | Young: Dr. Kennedy’s early motion lacked specific affirmative facts and later reliance on a memorandum was too late or deficient | Kennedy: her filings and memorandum set out specific dates and facts (e.g., last alleged acts May 9 / June 6, 2001), giving fair notice | Held: No waiver. The memorandum and later pleadings affirmatively and sufficiently pleaded facts placing plaintiff on notice, satisfying Rule 8.03 (no prejudice shown). |
| Whether summary judgment was improper because material factual disputes existed about accrual/discovery | Young: disputed facts about when she (and decedent) knew the injury and cause (infection vs. cancer, communications) preclude summary judgment | Kennedy: undisputed record facts (plaintiff’s awareness of infection/isolation May 9; confrontation re: overmedication June 6) show constructive notice before death | Held: Summary judgment affirmed. Undisputed facts show plaintiff had, at latest, notice by June 6, 2001 (and of the infection by May 9), so the June 11, 2002 suit was untimely under § 29-26-116. |
Key Cases Cited
- Denny v. Webb, 281 S.W.2d 698 (Tenn. 1955) (defendant may waive statute-of-limitations defense by failing to plead it timely)
- Barker v. Heekin Can Co., 804 S.W.2d 442 (Tenn. 1991) (Rule 8.03 requires affirmative, specific factual averments to preserve certain defenses)
- Teeters v. Currey, 518 S.W.2d 512 (Tenn. 1974) (adoption of the discovery rule for accrual in medical-malpractice actions)
- Sherrill v. Souder, 325 S.W.3d 584 (Tenn. 2010) (explaining accrual: discovery of injury and identity of responsible person starts limitations period)
- Holliman v. McGrew, 343 S.W.3d 68 (Tenn. Ct. App. 2009) (affirming summary judgment where undisputed facts showed plaintiff had notice before decedent’s death)