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Green v. Sacks3/15/2001
This appeal involves a dispute between a patient and her physician regarding the surgical insertion of an Angelchik prosthesis to control a chronic gastric reflux condition. Almost five years after her surgery, the patient filed suit in the Circuit Court for Davidson County against her physician and the Angelchik's manufacturer. The case was removed to federal court, but the federal proceedings were eventually dismissed after the patient voluntarily dismissed her claims against the manufacturer. After the case was returned to the trial court, the physician moved for a summary judgment on the ground that the patient's claim was barred by the statute of repose in Tenn. Code Ann. § 29-26- 116(a)(3) (2000) and the statute of limitations in Tenn. Code Ann. § 29- 26-116(a)(1), (2). The patient responded that her physician's fraudulent concealment tolled the running of the statute of repose and that she filed suit within one year of discovering her injury. The trial court granted the physician's summary judgment motion. The patient asserts on this appeal that the physician has not demonstrated that he is entitled to a judgment as a matter of law on either defense. We agree. There is a material factual dispute regarding whether the physician's failure to inform his patient of the manner in which he inserted the Angelchik device amounts to fraudulent concealment for the purpose of tolling the statute of repose. Likewise, the patient demonstrated that she filed suit within one year after discovering her injury Accordingly, we reverse the summary judgment.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed
William C. Koch, Jr., J., delivered the opinion of the court, in which William B. Cain, J., and Henry F. Todd, Sp . J., joined.
OPINION
Almeda Green is in her seventies and lives in Rutherford County. She had experienced stomach problems for a number of years, including reflux esophagitis, a painful condition that allows gastric fluid from her stomach to enter her esophagus. As a result of these problems, she has undergone multiple surgeries on and around her stomach. One of these surgeries, performed in 1980, involved wrapping part of her stomach tissue around the bottom of her esophagus. This procedure left her stomach tubular shaped.
In early 1987, Ms. Green consulted Eugene I. Sacks, a general surgeon practicing in Nashville, because she was continuing to experience discomfort from reflux esophagitis. Dr. Sacks treated Ms. Green conservatively with medication for approximately eighteen months. In June 1988, when it became evident that the medication was not alleviating Ms. Green's discomfort, Dr. Sacks broached the possibility of surgery. Ms. Green was reluctant to have further surgery in light of the previous surgeries that had not alleviated her problem.
Ensuing events eroded Ms. Green's reluctance about further surgery. In August 1997, she was taken to the emergency room of the Smyrna Medical Center with upper gastrointestinal bleeding. Based on Ms. Green's persisting symptoms, the long and complicated history of her gastrointestinal problems, and the failure of more conservative treatment, Dr. Sacks recommended the surgical insertion of an Angelchik prosthesis. An Angelchik prosthesis is a doughnut-shaped device containing silicone gel that is wrapped around the esophagus at the gastroesophageal junction (where the stomach and esophagus meet) for the purpose of limiting gastric reflux into the esophagus. After insertion, the device rests on the upper part of the stomach where the stomach becomes wider than the device's inner circumference. Ms. Green consented to the surgery because she was concerned that her cond
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