Myrtle Robinson v. Baptist Memorial Hospital, 2014 Tenn. App. LEXIS 404

Background

In July 2006 Fannie Zinn, diagnosed with terminal metastatic cancer, was treated for pleural effusions and underwent left-sided VATS pleurodesis; she died from postoperative complications on July 27, 2006.
Pulmonologist Dr. Kenneth Okpor dictated a July 20, 2006 consult noting a "large left-sided pleural effusion," then later (authenticated Aug. 7, 2006) amended the consult to reflect bi-lateral effusions.
Plaintiffs (Zinn’s daughters/personal representatives) sued various providers on July 27, 2007 but did not add Dr. Okpor and his practice until a second amended complaint filed Feb. 1, 2012.
Defendants moved for summary judgment asserting the one-year statute of limitations and the three-year statute of repose for medical malpractice (Tenn. Code Ann. §29-26-116) barred the belated claim, absent fraudulent concealment tolling.
Plaintiffs argued Okpor’s post-event amendment of the medical record was an affirmative fraudulent concealment that tolled the repose; defendants said the edit was routine/authentication and not intended to conceal.
Trial court granted summary judgment, finding no adequate evidence of fraudulent concealment and that plaintiffs were not reasonably diligent (they had or received relevant records by July 22, 2010 but did not timely act); the Court of Appeals affirmed on timeliness grounds.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Okpor’s alteration of the consult note constitutes fraudulent concealment sufficient to toll the 3‑year statute of repose	The change erased the original diagnosis and therefore was an affirmative concealment of the cause of action	The authentication/editing of medical records is routine and not done to hide wrongdoing	Edit could support an inference of concealment (trial court erred to the extent it held no genuine issue), but not dispositive because of diligence failure
Whether plaintiffs exercised reasonable diligence in discovering the amended record (inquiry/constructive notice)	Plaintiffs did not know of the amendment until they examined a CD produced in 2010 and so were not chargeable earlier	Plaintiffs had received records (including the unauthenticated report) by Dec. 17, 2008 (or at least had the 7/22/2010 CD) and should have inspected them sooner	Plaintiffs are chargeable with constructive notice as of July 22, 2010 (date CD was created/received); they failed to act with reasonable diligence
Whether plaintiff’s notice under Tenn. Code Ann. §29-26-121 (July 21, 2011) preserved the claim	Notice was timely and extended the limitations period 120 days beyond expiration	Even with 120‑day extension, plaintiffs still filed after the extended deadline	Notice extended the limitations window to Nov. 19, 2011, but the complaint against Okpor was filed Feb. 1, 2012—untimely
Whether summary judgment was proper overall given disputed facts about concealment and expert testimony	Expert testimony that editing violated the standard of care creates a material factual dispute precluding summary judgment	Even if factual dispute exists on motive/standard, plaintiffs’ lack of diligence is dispositive	Summary judgment affirmed because, even accepting concealment inference, plaintiffs failed to timely discover and file within the extended deadline

Key Cases Cited

BellSouth Adver. & Publ’g Co. v. Johnson, 100 S.W.3d 202 (Tenn. 2003) (standard of review for summary judgment)
Hannan v. Alltel Publ’g Co., 270 S.W.3d 1 (Tenn. 2008) (summary judgment burden-shifting principles)
Calaway v. Schucker, 193 S.W.3d 509 (Tenn. 2005) (three-year statute of repose is almost absolute in medical malpractice)
Redwing v. Catholic Bishop for Diocese of Memphis, 363 S.W.3d 436 (Tenn. 2012) (discovery rule and fraudulent concealment doctrine explained)
Mills v. Wong, 155 S.W.3d 916 (Tenn. 2005) (legislative intent to impose absolute three-year bar)
Benton v. Snyder, 825 S.W.2d 409 (Tenn. 1992) (elements required to prove fraudulent concealment)