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Mills v. Wong11/21/2003
As alleged in the complaint, Plaintiff/Appellant, Frank Fetzer Mills, Jr. (Mr. Mills), went to Defendant/Appellee, Charter Lakeside Behavioral Health Systems, Inc. (Charter) on November 17, 1994. Mr. Mills sought diagnosis and care for depression, insomnia, and other mental and physical problems he was experiencing. At the time of Mr. Mills' admittance, the following Defendants provided his care: psychiatrist, Dr. Kenneth Tullis; pediatrician, and now deceased, Janet K. Johnson; and internist, John. F. O'Connell. Mr. Mills was hospitalized for ten days at Charter and diagnosed only with alcoholism and drug addiction. On November 27, 1994, Charter transferred Mr. Mills to its own rehabilitation center where he stayed for an additional thirty days.
On February 7, 1997, Dr. Stein conducted an ophthalmologic exam on Mr. Mills and diagnosed him with Wilson's Disease, which, if not treated, is a fatal genetic disorder. This was the first time that Mr. Mills learned of this diagnosis. On January 21, 1998, Mr. Mills and his wife, Rebecca Smith Mills (Mrs. Mills), filed a complaint against the Defendants in the circuit court of Shelby County. Mr. and Mrs. Mills non-suited their complaint on February 11, 1998, and re-filed on January 19, 1999. Subsequently, Charter, on behalf of itself and its employees, filed a motion to dismiss based on the Mills' failure to bring their medical malpractice claim within the three-year statute of repose enumerated in Tenn. Code Ann. § 29-26-116 (2000). In the Mills' response to Charter's motion, they filed affidavits from medical professionals opining that Mr. Mills was mentally incompetent at the time of the December 1994 treatment. The Mills argued that the legal disability statute, Tenn. Code Ann. § 28-1-106 (2000), tolled the three-year statute of repose.
On August 28, 2002, the trial court entered an order granting Charter's motion by characterizing it as a motion for summary judgment rather than a motion to dismiss. The trial court stated in its order that Penley v. Honda, 31 S.W.3d 181, 188 (Tenn. 2000), held that the legal disability statute, § 28-1-106, does not toll the statute of repose and thereby overrules any contrary dicta contained in Bowers by Bowers v. Hammond, 954 S.W.2d 752, 758 (Tenn. Ct. App. 1997). Issues Presented
Mr. and Mrs. Mills appeal and raise the following issues, as we restate them, for review by this Court:
1. Whether mental incompetency tolls the medical malpractice statute of repose, Tenn. Code Ann. § 29-26-116 (2000).
2. Whether due process requires tolling § 29-26-116 during Mr. Mills incompetency.
Standard of Review
This Court must decide whether it was error for the trial court to award summary judgment to the Defendants. Summary judgment should be awarded when the moving party can demonstrate that there are no genuine issues regarding material facts and that it is entitled to judgment as a matter of law. Tenn. R. Civ. P. 56.04; McCarley v. W. Quality Food Serv., 960 S.W.2d 585, 588 (Tenn. 1998); Byrd v. Hall, 847 S.W.2d 208, 214 (Tenn. 1993). Mere assertions that the non-moving party has no evidence does not suffice to entitle the moving party to summary judgment. McCarley, 960 S.W.2d at 588. The moving party must either conclusively demonstrate an affirmative defense or affirmatively negate an element which is essential to the non-moving party's claim. Id. If the moving party can demonstrate that the non-moving party will not be able to carry its burden of proof at trial on an essential element, summary judgment is appropriate. Id.
This Court reviews an award of summary judgment d
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