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Phillips v. Casey

Court of Appeals of Tennessee, Knoxville

July 21, 2015

SUSAN LEE PHILLIPS, Executrix and Surviving Spouse of ROBERT WAYNE PHILLIPS, Deceased
v.
GARY Q. CASEY, M.D., ET AL.

Session April 13, 2015

Appeal from the Circuit Court for Sullivan County No. C40306(C) E.G. Moody, Judge

This is a health care liability[1] action. The plaintiff's late husband died following a bilateral tonsillectomy surgery. An autopsy determined that the cause of death was angioedema. The plaintiff filed suit against the defendants exactly one year after her husband's death. The complaint did not comply with the pre-suit notice requirements for health care liability suits. The plaintiff voluntarily dismissed the suit without prejudice and re-filed suit. The defendants moved to dismiss, claiming that the re-filed suit was barred. The trial court denied the motion to dismiss and a subsequent motion to reconsider but granted permission to file an interlocutory appeal pursuant to Rule 9 of the Tennessee Rules of Appellate Procedure. We granted permission to appeal and now affirm the decision of the trial court.

Tenn. R. App. P. 9 Interlocutory Appeal; Judgment of the Circuit Court Affirmed; Case Remanded

Jimmie C. Miller and Meredith B. Humbert, Kingsport, Tennessee, for the appellants, Gary Q. Casey, M.D. and Mountain Region Family Medicine, P.C.

David W. Blankenship and C. Christopher Raines, III, Kingsport, Tennessee, for the appellee, Susan Lee Phillips, Executrix and Surviving Spouse of Robert Wayne Phillips.

John W. McClarty, J., delivered the opinion of the Court, in which Charles D. Susano, Jr., C.J., and D. Michael Swiney, J., joined.

OPINION

JOHN W. McCLARTY, JUDGE

I. BACKGROUND

Susan Lee Phillips ("Wife") brought this action on behalf of her late husband, Robert Wayne Phillips ("Husband"), who was a patient of Gary Q. Casey ("Dr. Casey") from 1999 to 2012. In either 2011 or 2012, Dr. Casey diagnosed Husband with angioedema, a condition that occasionally causes rapid swelling of the tissue beneath the skin. Dr. Casey proscribed Lisonipril to Husband to treat a separate diagnosis of hypertension. Later, it was determined that Husband was allergic to Lisonipril. Dr. Casey then prescribed Losartan for the same hypertension. Husband last visited Dr. Casey on March 12, 2012.

On April 2, 2012, Husband went to Dr. Bruce Abkes ("Dr. Abkes") for a bilateral tonsillectomy. He died at approximately 8:15 p.m. that evening. An autopsy was performed on Husband. The autopsy listed the primary cause of death as angioedema and the secondary cause of death as bilateral tonsillectomy. Wife received a copy of the autopsy on July 3, 2012. Wife later hired counsel, who sent a letter to Dr. Casey dated January 30, 2013, informing him of a potential health care liability suit against him. Wife filed suit, on April 2, 2013, against Dr. Casey and his employer, Mountain Region Family Medicine, P.C. ("Mountain Region"). Wife alleged that Dr. Casey was liable for the death of Husband for two reasons: (1) Dr. Casey's prescription of medications known to aggravate the symptoms of angioedema, despite diagnosing Husband with angioedema; and (2) Dr. Casey's failure to inform Dr. Abkes of Husband's angioedema condition before the bilateral tonsillectomy surgery.

Dr. Casey and Mountain Region (collectively "Health Care Providers") moved to dismiss the suit on April 19, 2013. Health Care Providers argued, and Wife later conceded, that the letter did not satisfy the pre-suit notice requirements under Tennessee Code Annotated section 29-26-121, the applicable statute governing medical malpractice actions. Specifically, Wife did not provide pre-suit notice to Mountain Region and did not provide Dr. Casey with the HIPAA form authorizing the release of medical records. On May 10, 2013, Wife's initial complaint against Health Care Providers was dismissed without prejudice.

On June 17, 2013, Wife sent proper pre-suit notice to Health Care Providers, informing them of the potential health care liability suit against them. Wife re-filed her suit against Health Care Providers on August 30, 2013. Health Care Providers moved to dismiss the re-filed complaint, arguing that the claim was barred by the applicable statute of limitations. Health Care Providers contended that the initial complaint was untimely because it was not filed within one year of Husband's final visit to Dr. Casey on March 12, 2012. Due to the deficiencies of the initial complaint, Health Care Providers argued that Wife was not entitled to rely on the saving statute, codified at Tennessee Code Annotated section 28-1-105. Wife responded that the diagnosis of angioedema combined with the improper prescription of Lisonipril and Losartan remained a dormant injury and that the earliest she could have reasonably known of any malpractice was April 2, 2012, the day Husband died. Furthermore, Wife argued that she was allowed to correct a statutory deficiency by re-filing her complaint.

Following a hearing, the trial court denied the motion to dismiss. Health Care Providers filed a motion to reconsider and motion for a Tennessee Rule of Appellate Procedure 9 interlocutory appeal. Following a hearing, the trial court denied the motion to reconsider but granted the motion for an ...


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