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Jones v. Behrman

Court of Appeals of Tennessee, Jackson

June 27, 2017

LORESE DOUGLAS JONES, ET AL.
v.
STEPHEN W. BEHRMAN, ET AL.

          Session: January 17, 2017

         Appeal from the Circuit Court for Shelby County No. CT-004119-14 Robert Samuel Weiss, Judge

         This is a medical malpractice action[1] in which the trial court granted summary judgment for failure to file suit within the applicable statute of limitations. We affirm.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed; Case Remanded

          Duncan E. Ragsdale, Memphis, Tennessee, for the appellants, Lorese Douglas Jones, Alene Johnson, George Seymore, Genest Douglas, Anthony Douglas, and Jacqueline Vaughn.

          Marcy 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.

          John W. McClarty, J., delivered the opinion of the Court, in which J. Steven Stafford, P.J., W.S., and Arnold B. Goldin, J., joined.

          OPINION

          JOHN W. McCLARTY, JUDGE

         I. BACKGROUND

         The 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[2] 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[3] to aid in the discovery of any additional issues.

         The 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.

         On 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.

         On January 24, 2012, Decedent's family members (collectively "Plaintiffs") provided pre-suit notice of a potential suit against Drs. Behrman and Leal[4] 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.[5] As pertinent to this appeal, the pre-suit notices recounted the details of the claim as follows:

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.

         On 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.[6]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.

         Defendants 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.[7] Defendants argued that the cause of action accrued on February 20, 2011, ...


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