McNeary v. Baptist Memorial Hospital
2011 Tenn. App. LEXIS 121
| Tenn. Ct. App. | 2011Background
- The McNearys sued Baptist Memorial Hospital and others for alleged negligent delivery resulting in Kayla's brain damage.
- Harmon (CRNA) was identified as the care provider during Kayla's birth; service of process on Harmon became contested.
- Initial summons issued June 25, 2005; service on Harmon never occurred; amended complaint filed August 18, 2005 adding more defendants.
- Calaway v. Schucker stayed proceedings in 2005 but excluded service issues from the stay; later, service issues resurfaced.
- Harmon moved to dismiss in 2008 for lack of personal jurisdiction, insufficiency of process/service, and statute of repose; trial court granted dismissal.
- Appellants pursued Rule 9 and Rule 60.02 relief, alleging fraud/misrepresentation by defense counsel; trial court denied relief, and the appeal followed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether lack of proper service/personal jurisdiction warranted dismissal | McNeareys argue service complied after multiple reissues and tolling. | Harmon contends service never validly issued/served; lack of personal jurisdiction. | Dismissal affirmed for improper service and lack of personal jurisdiction. |
| Whether the medical malpractice statute of repose bars the claim | Calaway tolls repose due to minority and pre-Dec 9, 2005 commence date. | Calaway tolling applies only to cases commenced before Dec 9, 2005; here not properly commenced. | Statute of repose bars the claim; minority tolling not applicable; action not commenced before Dec 9, 2005. |
| Whether Rule 60.02 relief for fraud was appropriate | Fraudulent filings by defense counsel misled theMcNearys and impacted service. | No clear and convincing evidence of fraud; filings were in good faith beliefs. | Trial court did not err in denying Rule 60.02 relief for fraud. |
| Whether judicial estoppel is applicable | Defendants should be estopped from denying facts based on prior positions. | Estoppel not properly raised below; not ripe on appeal. | Judicial estoppel issue not reviewable on this record. |
Key Cases Cited
- Calaway ex rel. Calaway v. Schucker, 193 S.W.3d 509 (Tenn. 2005) (minority tolling does not toll the three-year repose after Dec. 9, 2005)
- Frye v. Blue Ridge Neuroscience Center, 70 S.W.3d 710 (Tenn. 2002) (saving statute tolling requires compliance with Rule 3 for commencement)
- Black v. Black, 166 S.W.3d 699 (Tenn. 2005) (standard for clear and convincing evidence in Rule 60.02 relief)
- Goff v. Elmo Greer & Sons Constr. Co., 297 S.W.3d 175 (Tenn. 2009) (admonition on evaluating evidence and discretionary rulings)
- New York Life Ins. Co. v. Nashville Trust Co., 292 S.W.2d 749 (Tenn. 1956) (extrinsic/intrinsic fraud delineation in Rule 60)