Plaintiff's Attempt to Extend SOL Via Fraudulent Concealment Fails to Persuade Western Section in Med Mal Case - Articles

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Posted by: Kreis White on Jul 15, 2014

MYRTLE ROBINSON ET AL. V. BAPTIST MEMORIAL HOSPITAL ET AL.
Court: TN Court of Appeals

Attorneys:

Al H. Thomas and Aaron L. Thomas, Memphis, Tennessee, for the appellants, Myrtle Robinson and Willette Jeffries, as the personal representatives of Fannie Oliver Zinn.

Jennifer S. Harrison and Lauren Dunavin Callins, Memphis, Tennessee, for the appellee, Kenneth A. Okpor, M.D. and Memphis Lung Physicians, P.C.

Judge: STAFFORD

This is a medical negligence/wrongful death case. Following their mother’s death, Appellants’ filed the instant lawsuit against several doctors who provided treatment to their mother. During discovery, Appellants allegedly learned that the Appellee physician had amended his original consultation report to correct a mis-diagnosis of the Decedent’s condition. Appellants were granted leave to amend their complaint to add the Appellee and his medical practice as defendants to the lawsuit. The amended complaint naming the Appellees was filed some five years after the filing of the original lawsuit. Appellees moved for summary judgment on the ground that the statutes of limitations and repose barred Appellants’ case. The trial court granted summary judgment, finding that the Appellants had not shown facts sufficient to establish fraudulent concealment on the part of the Appellee physician so as to toll the applicable one-year statute of limitations and three-year statute of repose under Tennessee Code Annotated Section 29-26-116. The trial court also found that Appellants had failed to exercise due diligence in discovering the alleged fraudulent concealment. Appellants appeal. For the reasons stated herein, we affirm and remand.

.PDF Version of Case

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