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Fluri v. Fort Sanders Regional Medical Center11/14/2005
otion, "these depositions were obtained in June and July of 2003 as a result of Defendant's Supplemental Responses to Interrogatories filed on January 27, 2003 identifying various expert witnesses and advancing the theory that `plaintiff's fracture probably occurred during surgery by Dr. Brown on December 19, 2000' and `the post-op x-ray film obtained at Fort Sanders on December 19, 2000 shows the fracture of Ms. Fluri's left Femur.'"
The Amended Complaint, which was allowed, added Dr. Melinda Blue and Vista Radiology to the list of Defendants. Plaintiffs averred that Dr. Blue is a radiologist employed by Vista, and that the x-ray report prepared by Dr. Blue, after replacement surgery, did not disclose any abnormalities. In the alternative, that the rehabilitative session aggravated a pre-existing condition which Fort Sanders' radiologists failed to disclose. The Complaint elaborated " f Defendant's radiologist had disclosed a fracture or the possibility of a fracture from the review of the x-ray films obtained on December 19, 2000, Ms. Fluri's plan of treatment would have been different thereby avoiding and/or limiting the injury sustained by the Plaintiff." The Complaint further averred that "Plaintiffs did not discover the existence of facts which support the action against the Defendants, Dr. Blue and Vista, until the Defendants, Fort Sanders and Taylor, filed an answer to the Amended Complaint on December 11, 2002. Before December 11, 2002, Plaintiffs were not aware of nor were Plaintiffs on notice of the origin of the injury as attributed to the conduct of the Defendants, Dr. Blue and Vista." Fort Sanders and Taylor answered the Amended Complaint, and averred that immediately after Ms. Fluri's December 19, 2000 knee replacement surgery, a post-operative x-ray film showed a fracture to Ms. Fluri's left femur, and Dr. Blue failed to report this fracture. The Answer also denied Dr. Blue was an agent of the hospital, and that Dr. Blue was an independent contractor, as were all physicians associated with Vista. Further, that x-ray film made after the surgery on December 19, 2000 "could have been and should have been discovered by plaintiffs prior to the filing of the original Complaint herein." In the Answer of Dr. Blue and Vista Radiology, they admitted that Dr. Blue interpreted two x-rays of Ms. Fluri's left knee, but they denied that there was any pre-existing condition visible on the x-rays and they denied that there was any negligent failure to disclose a pre-existing condition. Further, they denied that Dr. Blue's interpretation of the x-rays caused or contributed to a difference in Ms. Fluri's plan of treatment or any additional fracture, injury, or treatment experienced by Ms. Fluri, and that they would rely on any provisions of Title 29, Tenn. Code Ann., chapter 26, part 1, which might be applicable.
On December 2, 2003, Dr. Blue and Vista filed a Motion to Dismiss or for Summary Judgment on the ground the Statutes of Limitations had run. The Motion asserted the only date on which Dr. Blue rendered any medical care to Ms. Fluri was on December 19, 2000 when Dr. Blue prepared an x-ray report regarding Ms. Fluri's left knee which did not disclose any abnormalities. They further asserted that Ms. Fluri's medical records regarding any care received by her on December 19, 2000 were available for review by the plaintiffs since shortly after December 19, 2000, and that the claim was barred by the one-year statute of limitations. Tenn. Code Ann. ยงยง 29-26-116 and 28-3- 104(a)(1).
Plaintiffs' Response to the Motion stated that "the motion is based upon a disputed issue of material fact, i.e., the reasonableness of plaintiffs' actions regarding the discovery of the tortuous conduct of Me
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