TERESA M. DAFFRON, AS DAUGHTER, NEXT OF KIN TO AND AS THE ADMINISTRATOR OF THE ESTATE OF WILEY E. DAFFRON
MEMORIAL HEALTH CARE SYSTEM, INC.
Session: August 22, 2019
from the Circuit Court for Hamilton County No. 15C1011 Ward
Jeffrey Hollingsworth, Judge
appeal arises from a wrongful death action based on health
care liability. Wiley E. Daffron ("Decedent")
received medical treatment from Memorial Health Care System,
Inc. ("Memorial") in 2013. During his stay at
Memorial, Decedent developed a pressure ulcer. Decedent died
a few months after he was discharged from Memorial. Teresa M.
Daffron ("Ms. Daffron"), Decedent's adult
daughter, obtained Decedent's medical records from
Memorial. Some 13 months later, Ms. Daffron sent pre-suit
notice of her intent to sue Memorial. A few months after
that, Ms. Daffron filed suit against Memorial in the Circuit
Court for Hamilton County ("the Trial Court").
Memorial filed a motion for summary judgment asserting the
statute of limitations, which the Trial Court granted. The
Trial Court held that Ms. Daffron knew or should have known
of Decedent's injury and its possible cause more than one
year before the pre-suit notice was sent and, therefore, her
complaint was filed outside the statute of limitations. On
appeal, Ms. Daffron argues that the statute of limitations
did not begin to run until an expert informed her that
Decedent's injury was caused by Memorial. We hold that,
pursuant to the discovery rule, and, as evidenced by, among
other things, her seeking through counsel Decedent's
medical records, Ms. Daffron had constructive knowledge of
Decedent's claim more than one year before she sent
pre-suit notice and, therefore, the complaint was not timely
filed. Ms. Daffron's claim brought on behalf of her
father is barred by the statute of limitations. We affirm the
judgment of the Trial Court.
R. App. P. 3 Appeal as of Right; Judgment of the Circuit
Court Affirmed; Case Remanded
Brent Burks and Tim O. Henshaw, Chattanooga, Tennessee, for
the appellant, Teresa M. Daffron, as daughter, next of kin to
and as the administrator of the estate of Wiley E. Daffron.
P. Brock and Jamieson Brock, Chattanooga, Tennessee, for the
appellee, Memorial Health Care System, Inc.
Michael Swiney, C.J., delivered the opinion of the court, in
which John W. McClarty and Thomas R. Frierson, II, JJ.,
MICHAEL SWINEY, CHIEF JUDGE.
who suffered from diabetes, began living with Ms. Daffron in
November 2011. Ms. Daffron assisted her father closely in
managing his health issues. Decedent signed a health care
power of attorney allowing Ms. Daffron to make medical
decisions on his behalf. Of particular relevance, Ms. Daffron
knew that Decedent could develop sores without proper
November 1, 2013, Decedent was admitted to Memorial for an
arthroscopic procedure. After three days, Decedent suffered
complications for which he was intubated. On November 10,
2013, Decedent was extubated. On November 11, Ms. Daffron
discovered that Decedent had two sores on his buttocks. Ms.
Daffron consented to a debridement. On November 20, Decedent was
transferred to Kindred Hospital, where he stayed for several
days. Decedent then returned to Memorial for a second
debridement. Decedent went back to Kindred Hospital before
being discharged to hospice and, finally, his home.
December 2013, Ms. Daffron had a chance conversation with a
nurse at Memorial who advised her to look into her
father's care. Ms. Daffron shortly thereafter contacted
the McMahan Law Firm, which represents her now on appeal. In
February 2014, Ms. Daffron, through counsel, requested
Decedent's medical records from Memorial. On March 17,
2014, Ms. Daffron obtained Decedent's medical records. On
April 28, 2014, Decedent died allegedly due to Memorial's
health care negligence. According to Ms. Daffron, she became
aware of Memorial's alleged negligence only when informed
by her expert, Dr. Sexson, in March 2015.
April 21, 2015, Ms. Daffron sent Memorial pre-suit notice of
a pending health care liability action. On August 24, 2015,
Ms. Daffron sued Memorial in the Trial Court. In its answer,
Memorial asserted the statute of limitations as a defense. In
July 2018, Memorial filed a motion for summary judgment. In
its brief in support of its motion for summary judgment,
Memorial detailed its argument as to why Ms. Daffron's
suit was not timely filed, stating in part:
The statute of limitations for health care liability actions
is one year. T.C.A. § 29-26-116. If prior to
one year notice of a claim is sent to a defendant in a health
care liability action, the statute of limitations is extended
for one hundred twenty (120) days pursuant to T.C.A.
§ 29-26-121. A claim is barred by the statute of
limitations if no notice is sent within a year of the accrual
of the action or - presuming timely notice - if the lawsuit
is filed four hundred eighty five (485) days after cause
accrues. Id.; T.C.A. § 29-26-116. Mr.
Daffron was discharged from Memorial on December 20, 2013,
and was not treated there again before his death on April 28,
2014. Exhibit 1 of Affidavit of Dawn Walker,
Attached to Memorial's Motion for Summary Judgment as
Exhibit B (hereinafter "Memorial
Records"), at MH03656. Notice was sent on April 21,
2015, and this lawsuit was filed on August 24, 2015.
Compl. Memorial's Motion seeks dismissal of this
action because, as stated in the Complaint, Mr. Daffron
developed these complications while he was at
Memorial; therefore, notice was not sent within a year and
the Complaint was not filed within 485 days as required by
statute, and should be dismissed with prejudice as a matter
response to interrogatories, Ms. Daffron stated the following
as to her understanding of how Decedent was injured:
8. Please described [sic] in detail your* understanding of
how the alleged occurrence* happened, presenting all the
events leading up to Mr. Daffron's alleged injuries in
the order in which they occurred.
ANSWER: He was admitted on November 1, 2013, to Memorial for
an endoscope and it was discovered that he had aspiration
pneumonia and he was treated for such over the weekend. On
November 4, 2013, he was cleared by respiratory and
anaesthesia for the endoscope procedure. The procedure was
performed with no complications to my knowledge. Later the
same evening he had issues maintaining his O2
saturations and he was intubated and transferred to the CCU
unit. He remained on the ventilator until November 10, 2013,
and once it was removed he was doing well. On November 11,
2013, it was discovered by me that while on the ventilator
and not receiving proper skin care, he developed 2 separate
bed sores on his buttocks. The wound care physician was
called in the same day to assess the wounds and a rectal
catheter was placed that day as well.
deposition, Ms. Daffron testified in detail as to her first
realization that something was wrong with her father's
medical care, as well as what steps she took upon this
Q. Okay. I know this will sound like a silly question, but
you were upset because of what you saw.
A. I was upset because of what I saw and that, all the years
that I'd worked hard for that not to happen while he was
at home, for that to happen in a hospital.
Q. Okay. Did you discuss what you saw with [Decedent]?
A. I asked him did his back hurt, and he said: "I've
been telling y'all for days my back hurt."
A. And I said: "Well, you've got some kind of sore
back there that the doctor's going to come look at."
And he's like: "Why do I have a sore?" And
I'm like: "Daddy, I don't know."
Q. Okay. "On November 11, 2013, it was discovered by me
that, while on the ventilator and not receiving proper skin
care, he developed two separate bedsores on his
buttocks." Now, we've talked about that as well.
Q. I just want to make sure I understand. When you say it was
discovered by you --
A. From the nurse telling me they needed to clean his wound.
Q. Okay. And then you went in there and actually saw it.
Q. Okay. The part about "discovered by me that, while he
was on the ventilator," that information came to you
from the physician, or did you just
A. From the nurse.
Q. From the nurse.
A. That told me she needed to clean his wounds.
Q. Okay. But this part about, "while on the ventilator
and not receiving proper skin care," did that come from
-- how did that -- you discover that information?
A. Common sense.
A. On the 4th, after his procedure, he had no skin tears, no
skin wounds, no pressure sores. I helped him clean up because
his catheter was leaking, which is why it needed to be
replaced on the 4th before we left to go home after visiting
him. I helped clean up the urine, lotioned his back, lotioned
his legs. There were no sores. On the 10th, there's two.
Q. Okay. And that -- one of the reasons you had been doing
all that stuff at home was to help prevent something like
Q. Then it says: "The wound-care physician was called in
the same day to assess the wounds, and a rectal catheter was
placed that day." ...