LORESE DOUGLAS JONES, ET AL.
STEPHEN W. BEHRMAN, ET AL.
Session: January 17, 2017
from the Circuit Court for Shelby County No. CT-004119-14
Robert Samuel Weiss, Judge
a medical malpractice action in which the trial court granted
summary judgment for failure to file suit within the
applicable statute of limitations. We affirm.
R. App. P. 3 Appeal as of Right; Judgment of the Circuit
Court Affirmed; Case Remanded
E. Ragsdale, Memphis, Tennessee, for the appellants, Lorese
Douglas Jones, Alene Johnson, George Seymore, Genest Douglas,
Anthony Douglas, and Jacqueline Vaughn.
D. Magee, Margaret F. Cooper, Katherine M. Anderson, and
Karen S. Koplon, Memphis, Tennessee, for the appellees,
Stephen W. Behrman, Rolando J. Leal, Gastroenterology Center
of the Mid-South, P.C.
Rebecca P. Tuttle, Associate General Counsel, the University
of Tennessee, Memphis, Tennessee, Counsel for
Defendant/Appellee, the State of Tennessee.
W. McClarty, J., delivered the opinion of the Court, in which
J. Steven Stafford, P.J., W.S., and Arnold B. Goldin, J.,
W. McCLARTY, JUDGE
pertinent facts of this case are not in dispute. Lillian
Douglas ("Decedent"), who had previously been
diagnosed with endometrial cancer, underwent a hysterectomy,
bilateral salpingo-oophrectomy, and omentectomy in 2006.
Decedent also received pelvic radiation therapy. The surgery
and radiation therapy promoted the formation of pelvic
adhesions and fibrosis. In addition, Decedent suffered from a
plethora of other health issues, including diabetes and
arthritis. Decedent's primary care physician, Michelle A.
Shelton, M.D. referred Decedent to Rolando J. Leal, M.D., a
gastroenterologist, based upon a finding of microcytic
anemia and a change in bowel habits, loss of
appetite, and weight loss. On January 27, 2011, Dr. Leal
performed a colonoscopy that revealed diverticulosis but no
clots to indicate bleeding as the cause of her anemia. Dr.
Leal prescribed a high fiber diet and recommended that
Decedent undergo a capsule endoscopy procedure to aid in the
discovery of any additional issues.
procedure was performed on February 14, 2011. Two days later,
an x-ray revealed "that the capsule was still
present." Dr. Leal prescribed Zofran and a laxative and
advised Decedent to report to the emergency room if she
experienced abdominal distention or vomiting. The next day,
further tests were ordered, which showed no bowel obstruction
but that the capsule remained in the right lower quadrant.
February 20, 2011, Decedent was admitted to Baptist Memorial
Hospital based upon complaints of severe cramping with
intermittent abdominal pain and nausea and vomiting. Imaging
showed an abdominal obstruction, and an exploratory
laparotomy was recommended to relieve the obstruction.
Stephen W. Behrman, M.D., along with Drew H. Reynolds, M.D.
and Scott Therrien, M.D., performed the procedure, which
revealed adhesions and strictures in the small bowel. At some
point, the surgeons lacerated or penetrated the small bowel,
which required them to resect a portion of the bowel. They
used vinyl mesh to secure the fascia and closed the skin over
the mesh because they were unable to close the abdomen as a
result of swelling. The small bowel or some other injured
site leaked the contents of Decedent's bowel into the
abdomen, causing an abscess and fistulas. Decedent developed
peritonitis and sepsis as a result of the leaking bowel and
the abscess. Decedent was ultimately discharged with hospice
care and returned home on April 14, 2011, where she died on
April 21, 2011.
January 24, 2012, Decedent's family members (collectively
"Plaintiffs") provided pre-suit notice of a
potential suit against Drs. Behrman and Leal and the
Gastroenterology Center of the Mid-South, P.C. ("the
Center"). Pre-suit notice was also provided to the State
of Tennessee on February 1, 2012. As pertinent to this appeal,
the pre-suit notices recounted the details of the claim as
1. Dr. Leal negligently performed capsule endoscopy on
[Decedent], causing a small bowel obstruction; and
2. Dr. Behrman, Dr. Reynolds, and Dr. Therrien burned,
lacerated, cut, or otherwise injured [Decedent's] small
intestine, resulting in [a] small bowel fistula, peritonitis,
sepsis, and death on April 21, 2011.
August 13, 2012, Plaintiffs filed a complaint in Circuit
Court against the Center and Drs. Behrman and Leal
(collectively "Defendants") and an identical
complaint against the State in the Division of Claims
Administration. The claim was later transferred to the
administrative clerk of the Tennessee Claims
Commission.Plaintiffs voluntarily dismissed the
Circuit Court case on September 27, 2012. Plaintiffs again
provided pre-suit notice before filing a complaint pursuant
to the saving statute on September 26, 2013. The suit against
the State was consolidated with the re-filed case.
filed a motion to dismiss, arguing that the saving statute
did not apply because Plaintiffs failed to file the initial
suit within the applicable one-year statute of
limitations. Defendants argued that the cause of action
accrued on February 20, 2011, ...