Kelly on Malpractice

The three-year medical malpractice statute of repose is an iron ceiling. It bars all medical malpractice claims brought three years after the negligent act even when the plaintiff is incompetent. I discuss Range v. Sowell, 2009 WL 3518176 (Tenn.Ct.App.) thoroughly because we all need a reminder to beware of this three-year iron ceiling. Martha Range, age 84, lived with her son and his wife, Sam and Connie Range, in Columbia. She executed a durable power of attorney for health care, appointing her son, Sam Range, as her attorney-in-fact “to make health care decisions for me as herein provided if I am incapacitated or otherwise unable to make such decisions for myself.” Ms. Range was admitted to Maury Regional Hospital and diagnosed with Alzheimer’s Disease. A speech therapy progress note indicated that Ms. Range had one tooth that was rotten, painful, and needed to come out. On August 21, 2000, Ms. Range was transported to the office of the defendant dentist, Dr. Sowell, where he extracted her tooth under local anesthesia. Because he believed that the nursing home would do whatever was appropriate to obtain the proper authorization, Dr. Sowell testified that he did not attempt to obtain consent for the procedure from Ms. Range or from her attorney-in-fact, Mr. Range.

In November of 2001, fourteen months after the tooth extraction, Dr. Sowell came to the nursing home and relined Ms. Range’s ill-fitting dentures. Mr. Range said he was unaware that either of Dr. Sowell’s dental procedures had been performed until his wife received “an ambiguous note” from the nursing home on February 22, 2002, noting a payment of $400 to Dr. Sowell. On March 6, 2002, Mr. Range’s wife mailed a check for $400 payable to Dr. Sowell on behalf of Martha Range. Mr. Range stated that when he learned of the check, he and his wife went to the nursing home to get additional information about the procedures that his mother underwent. He claimed that he received very little cooperation. Mr. Range then filed a complaint against Dr. Sowell with the Tennessee Board of Dentistry. The Board found after investigation that Dr. Sowell had extracted Ms. Range’s tooth and had relined her dentures without obtaining informed consent from her or from her legally authorized personal representative. The Board issued a letter of reprimand.

Mr. Range filed a dental malpractice action naming Dr. Sowell as the sole defendant. Mr. Range claimed that his mother had been mentally incompetent since the late 1990’s and that she was incapable of consenting to dental treatment. Mr. Range asserted the claims of informed and medical battery. Dr. Sowell moved for summary judgment asserting that Mr. Range’s claims were time-barred, because the one-year statute of limitations had passed before the complaint was filed. Dr. Sowell also argued that any claim derived from the tooth extraction on August 21, 2000 was also barred by the three-year medical malpractice statute of repose. Mr. Range subsequently amended his complaint to add an allegation that Dr. Sowell had been guilty of fraudulent concealment, tolling the medical malpractice statute of repose. Martha Range died shortly thereafter. A suggestion of death was filed with the court, and the parties agreed to continue the case with Sam Range substituted as plaintiff in his capacity. It is crucial to remember that plaintiff’s claims pertained to two separate incidents that occurred months apart. First, Mr. Range attempted to recover for the tooth extraction in August of 2000. Second, he attempted to recover for the denture relining in November of 2001. Mr. Range alleged that Dr. Sowell was liable for both of these incidents under two legal theories; (1) that failure to get informed consent constituted medical malpractice, and (2) that performance of the procedure without consent was medical battery. The trial court found that all of the claims were also barred by the three year statute of repose found at TENN.CODE ANN. § 29-26-116(a)(3).

On appeal, Mr. Range argued that he did not discover that Dr. Sowell had performed unauthorized dental procedures on his mother until March 12, 2003, when he received a set of the Heritage Manor nursing home records. The Court of Appeals found, however, that that his acknowledged receipt of a bill for Dr. Sowell’s services and payment of that bill in March of 2002 negated any possible argument that the discovery rule could rescue his claims from the statute of limitations. However, the legal disability statute “threw a lifeline to Mr. Range’s claims.” TENN.CODE ANN. § 28-1-106 reads as follows:

If the person entitled to commence an action is, at the time the cause of action accrued, either within the age of eighteen (18) years, or of unsound mind, such person, or such person’s representatives and privies, as the case may be, may commence the action, after the removal of such disability, within the time of limitation for the particular cause of action, unless it exceeds three (3) years, and in that case within three (3) years from the removal of such disability.

Persons of unsound mind include those incapable of attending to any business or of taking care of themselves. Martha Range met that definition. As a result, TENN.CODE ANN. § 28-1-106 suspended the operation of the statute of limitations so that claims arising from the tooth extraction and denture relining were not barred by the one-year statute of limitations.

The matter stood on an entirely different footing when it came to the statute of repose. The three-year statute of repose does not begin to run upon the date of discovery of the injury, but rather upon the date of the negligent act. Since the tooth extraction occurred in August of 2000 and suit was not filed until December 1, 2003, any claim based on the extraction was barred by the statute of repose. The only remaining claim pertained to the denture relining. The Court of Appeals was not persuaded by Mr. Range’s argument that the statute of repose applied only to his medical malpractice claim and was not applicable to his battery claim. In Benton v. Snyder, 825 S.W.2d 409 (Tenn.1992), the Supreme Court applied the statute of repose to a claim for medical battery. Assuming arguendo that Dr. Sowell had fraudulently concealed from Mr. Range the fact that he had performed dental work on his mother, payment of the bill for Dr. Sowell’s services in March of 2002 triggered the one-year period allowed for fraudulent concealment. The claim must be brought “within one (1) year after discovery that the cause of action exists.” The cause of action was known to Mr. Range in February and March of 2002 but was not filed until over a year later, in December of 2003. Therefore, the fraudulent concealment exception could not save Mr. Range’s medical battery claim. The Court of Appeals affirmed summary judgment based on the statute of repose.

I spent this entire issue on Range v. Sowell to save you time and money so you don’t fight an unwinnable battle against the statute of repose. The Supreme Court took away the minority exception in Calaway v. Shucker, and there is no disability exception. Fraudulent concealment, assuming you can prove it, only gives you one more year to file suit. The lesson here is always … always beware of the three-year iron ceiling when evaluating a medical malpractice claim before you decide to take it.