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Walker v. Abubakar

September 15, 2006

TOMMIE WALKER, ET AL., PLAINTIFFS,
v.
TUNKU ABUBAKAR, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Thomas W. Phillips United States District Judge

(Phillips)

MEMORANDUM AND ORDER

This is a medical malpractice action. Plaintiffs have sued Dr. Abubakar for medical malpractice. Plaintiffs allege that defendant Locumtenens is liable for Dr. Abubakar's actions under the doctrine of respondeat superior. Additionally, plaintiffs allege that defendant Locumtenens is liable for damages resulting from the breach of its contract with Cherokee Health Systems to provide Cherokee with "qualified physicians." Locumtenens has moved the court for dismissal of the claims against it asserting that plaintiffs' claims are barred by the applicable statute of limitations. For the reasons which follow, defendant Locumtenens' motion will be denied.

Factual Background

The original complaint in this matter was filed in Knox County Circuit Court on September 20, 2002. The complaint named Dr. Abubakar and Cherokee Health Systems as defendants. Two months later, in November 2002, the plaintiffs became aware of the existence of Locumtenens as a potential tortfeasor in this matter. On June 24, 2003, Cherokee moved for summary judgment on the grounds that Dr. Abubakar was not its employee but was, rather, an independent contractor employed by Locumtenens at all times material to the lawsuit. On August 28, 2003, the Knox County Circuit Court granted summary judgment as to Cherokee Health Systems. In its order, the court found that Dr. Abubakar was an independent contractor of a separate corporation, Locumtenens.

On October 24, 2003, the plaintiffs moved for leave to amend their complaint to name Locumtenens as a defendant. That motion was granted, and the plaintiffs filed their first amended complaint on October 31, 2003. On April 16, 2004, Locumtenens moved to dismiss because the claims asserted against it were time barred. Thereafter, plaintiffs served a notice of voluntary dismissal on May 8, 2004. An order of non-suit was entered on April 26, 2005.

Plaintiffs refiled their lawsuit on May 6, 2005 in Knox County Circuit Court. The claims stated were identical to those stated in the nonsuited action. Locumtenens was served on May 23, 2005. On June 10, 2005, Locumtenens removed the lawsuit to this court. This action is now before the court on Locumtenens' motion to dismiss.

Analysis

A motion to dismiss under Rule 12(b)(6), Federal Rules of Civil Procedure, requires the court to construe the complaint in the light most favorable to the plaintiffs, accept all the complaint's factual allegations as true, and determine whether the plaintiffs undoubtedly can prove no set of facts in support of their claims that would entitle them to relief. Meador v. Cabinet for Human Resources, 902 F.2d 474, 475 (6th Cir.) cert. denied, 498 U.S. 867 (1990). The court may not grant such a motion to dismiss based upon a disbelief of a complaint's factual allegations. Lawler v. Marshall, 898 F.2d 1196, 1198 (6th Cir. 1990); Miller v. Currie, 50 F.3d 373, 377 (6th Cir. 1995) (noting that courts should not weigh evidence or evaluate the credibility of witnesses). The court must liberally construe the complaint in favor of the party opposing the motion. Id. However, the complaint must articulate more than a bare assertion of legal conclusions. Scheid v. Fanny Farmer Candy Shops, Inc., 859 F.2d 434 (6th Cir. 1988). "[The] complaint must contain either direct or inferential allegations respecting all the material elements to sustain a recovery under some viable legal theory." Id. (citations omitted).

Statute of Limitations

Defendant Locumtenens has moved the court to dismiss Counts II and III as time-barred under the applicable statute of limitations. In the alternative, Locumtenens moves to dismiss Count III because the plaintiffs' allegations, even if true, fail to state a claim for breach of contract. Count II of the complaint alleges that Dr. Abubakar's negligence should be imputed to Locumtenens under the doctrine of respondeat superior.

Count III alleges that Locumtenens breached its contract with Cherokee and that Mrs. Walker, as the third-party beneficiary of that contract, was injured by the breach.

In Tennessee, the statute of limitations for medical malpractice actions is one year. See Tenn. Code Ann. ss 29-26-116(a)(1). The statute of limitations begins to run "when the patient knows or in the exercise of reasonable care and diligence should know, that an injury has been sustained." Stanbury v. Bacardi, 953 S.W.2d 671, 677 (Tenn. 1997). Further, Tennessee's one-year statute of limitations for medical malpractice actions is tolled until the plaintiff "discovered, or reasonably should have discovered (1) the occasion, the manner, and the means by which a breach of the duty occurred that produced his injuries, and (2) the identity of the defendant who breached that duty." Stanbury, 953 S.W.2d at 677.

The plaintiffs' claims against Locumtenens accrued on September 24, 2001, when Mrs. Walker's alleged injury was discovered. Under the Tennessee statute, therefore, the claim expired one year later, on September 24, 2002, unless tolled by the discovery rule. The original action was filed on September 20, 2002, within the statute of limitations. In November 2002, plaintiffs became aware that Dr. Abubakar was not an employee of Cherokee Health Systems. On October 31, 2003, less than one year after learning that Dr. Abubakar's services had ...


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