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Durbin v. Sumner County Regional Health Systems9/6/2001
as to whether the applicable statute of limitations Tenn. Code Ann. § 29-26-116 has run. The Court holds that it has run prior to Dr. Caldwell being named as a party to this suit." The trial court based this decision on several factors:(1) the cause of action accrued in July or September of 1995 and Dr. Caldwell was not sued until February 11, 1998; (2) the statute of limitations for medical malpractice is one year, Tenn. Code Ann. § 29-26-116(a)(1); and (3) Tenn. Code Ann. § 20-1-119, which in some cases allows a new defendant to be added after the statute of limitations has run does not apply when the plaintiff was aware of the potential liability of the new defendant.
The appellants argue on appeal that there is an exception to the one year statute of limitations that applies in their case. They rely on Tenn. Code Ann. § 29-26-116(3), which states that the statute of limitations will not apply if there is "fraudulent concealment on the part of the defendant."
The appellants specifically argue that Dr. Caldwell fraudulently concealed the timing of the fetal monitoring strips. They allege that Dr. Caldwell stated in an interview prior to the filing of their initial complaint and his deposition that the fetal monitoring strip on July 22, 1995 was taken after he examined Mrs. Durbin and he would not know the results of the strip unless the nurses called him. The appellants relied upon this contention when they did not include Dr. Caldwell in their initial or amended complaint filed in July and November of 1996, respectively.
Dr. Caldwell replies to the fraudulent concealment issue by pointing out that the appellants did not plead the issue in the court below. See City State Bank v. Dean Witter Reynolds, Inc., 948 S.W.2d 729 (Tenn. Ct. App. 1996). We agree that they did not raise the statutory exception to the one year statute of limitations in any of their pleadings, but they did raise the issue in their various responses to Dr. Caldwell's motion to dismiss, and the trial judge considered the claim before granting the motion. We will therefore consider it here.
The trial judge found as a fact that the appellants were not misled by Dr. Caldwell and that they had all the necessary facts by September 1995 to determine Dr. Caldwell's involvement, if any. Our review of these findings is de novo on the record accompanied by a presumption of correctness unless the evidence preponderates against the findings. Tenn. R. App. P. 13(d). We have reviewed the evidence on which the appellants rely and we concur in the trial judge's findings. Therefore, the statute of limitations was not extended by Dr. Caldwell's concealment.
The appellants then argue that Tenn. Code Ann. § 20-1-119 applies to their situation. Tenn. Code Ann. § 20-1-119 allows plaintiffs to amend their complaint within ninety days of a defendant's answer or amended answer that alleges a third party caused or contributed to the plaintiff's injury even if the statute of limitations has run. Tenn. Code Ann. § 20-1-119(a)(1) provides:
(a) In civil actions where comparative fault is or becomes an issue, if a defendant named in an original complaint initiating a suit filed within the applicable statute of limitations, or named in an amended complaint filed within the applicable statute of limitations, alleges in an answer or amended answer to the original or amended complaint that a person not a party to the suit caused or contributed to the injury or damage for which the plaintiff seeks recovery, and if the plaintiff's cause or causes of action against such person would be barred by any applicable statute of limitations but for the operation of this section, the plaintiff may, within ninety (90)
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