Julie Speck and Kevin Speck v. Woman's Clinic, PA and Dr. Ryan Roy ( 2013 )

IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
July 16, 2013 Session
JULIE SPECK AND KEVIN SPECK
v.
WOMAN’S CLINIC, P.A. AND DR. RYAN ROY
An Appeal from the Circuit Court for Madison County
No. C1187 Roy B. Morgan, Jr., Judge
No. W2012-02111-COA-R3-CV - Filed September 18, 2013
This appeal involves inquiry notice of the claimed injury for purposes of triggering the
medical malpractice one-year statute of limitations. The plaintiffs, a married couple with
four children, wanted to prevent the conception of another child. To that end, the plaintiff
wife underwent a procedure to prevent pregnancy at the defendant medical clinic. About a
year later, she became pregnant. The wife later gave birth to a healthy baby boy. The
plaintiffs filed this medical malpractice lawsuit against the clinic and the treating physician,
claiming the wife’s pregnancy as the injury. The defendants filed a motion for summary
judgment, arguing that the plaintiffs’ claim was barred under the applicable one-year statute
of limitations. The trial court held that the wife was put on notice of her pregnancy by, at the
very latest, the day that she obtained a positive result on a home pregnancy test; it held that
the claim was time-barred on that basis and granted the defendants’ motion for summary
judgment. The plaintiffs’ subsequent motion to alter or amend was denied. The plaintiffs
now appeal. Discerning no error, we affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court is Affirmed
H OLLY M. K IRBY, J., delivered the opinion of the Court, in which A LAN E. H IGHERS, P.J.,
W.S., and J. S TEVEN S TAFFORD, J., joined.
Richard Glassman and Jonathan Stokes, Memphis, Tennessee, for the Plaintiff/Appellants,
Julie and Kevin Speck
Marty R. Phillips and Michelle Greenway, Jackson, Tennessee, for the Defendant/Appellees,
Woman’s Clinic, P.A., and Ryan Roy, M.D.
OPINION
Plaintiff/Appellant Julie Speck and her husband, Plaintiff/Appellant Kevin Speck
(collectively, “the Specks”), were married in 2005. Prior to the events that led to this lawsuit,
Mr. and Mrs. Speck had full custody of four children — two children born during their
marriage as well as two children from Mrs. Speck’s previous marriage. At the time of the
events outlined below, the Specks’ children were all under 14 years old.
The responsibilities for their four young children left the Specks in financial straits, and Mrs.
Speck also faced challenges regarding her mental and physical health. Consequently, in 2008,
Mr. and Mrs. Speck decided to take steps to ensure that they would not conceive any more
children. To this end, the Specks consulted with physicians at the Defendant/Appellee
Woman’s Clinic, P.A. They discussed having Mrs. Speck undergo an Essure sterilization
procedure (“Essure Procedure”) to prevent future pregnancy.1 In the course of the Specks’
discussions at the Woman’s Clinic, Mr. Speck told a consulting physician that he was
planning to undergo a vasectomy so that he and Mrs. Speck would have “double insurance”
that they would not conceive another child. The physician assured the Specks that the Essure
Procedure was so efficacious that a vasectomy for Mr. Speck would be a waste of money.
Convinced, the Specks scheduled Mrs. Speck for the Essure Procedure. Mr. Speck did not
undergo the vasectomy at that time.
On August 25, 2008, Defendant/Appellant Ryan Roy, M.D. (“Dr. Roy”), a physician at the
Woman’s Clinic, performed the Essure Procedure on Mrs. Speck. After the procedure, the
Speck’s were advised to use another form of birth control for three months until they could
confirm that the procedure had accomplished its purpose. Three months later, Mrs. Speck
underwent a test at the Woman’s Clinic, which confirmed that the procedure was a success.
The Specks were told at that time that they could begin relying solely on the Essure
Procedure to prevent pregnancy. According to Mrs. Speck, Dr. Roy commented to her in that
visit that if she later became pregnant, it would be a “miracle.”
About a year later, on November 27, 2009, the day after Thanksgiving, Mrs. Speck realized
uneasily that her menstrual cycle was very late. This was unusual for her, and it caused Mrs.
Speck to suspect that she was pregnant, so she purchased two home pregnancy tests at a local
drugstore. Mrs. Speck took the first test that day, November 27, 2009. The result of the test
showed that she was pregnant. On that same day or the next, Mrs. Speck took the second
home pregnancy test; it likewise was positive for pregnancy. The box containing the home
pregnancy tests Mrs. Speck used claimed that the tests are 99% accurate.
1
The Essure Procedure involves the placement of coils inside the opening of the woman’s fallopian tubes,
which eventually creates a barrier to prevent conception.
-2-
Soon thereafter, Mrs. Speck called the Woman’s Clinic to tell them about the results of the
home pregnancy tests. Mrs. Speck went to the Clinic on Monday, November 30, 2009, and
was given a urine pregnancy test, similar to the two home pregnancy tests she had taken. The
result of this test was also positive.
On December 1, 2009, Woman’s Clinic personnel performed an ultrasound test on Mrs.
Speck. The ultrasound showed that Mrs. Speck was pregnant and that the embryo was
normally implanted in her uterus.2 Several months later, on July 21, 2010, Mrs. Speck gave
birth to her fifth child, a healthy baby boy.
By letter dated November 29, 2010, the Specks served the Woman’s Clinic and Dr. Roy
(collectively, “Defendants”) with written notice of a potential claim for medical negligence
pursuant to Tennessee Code Annotated § 29-26-121.3 On March 30, 2011, the Specks filed
the instant lawsuit against the Defendants for medical malpractice, asserting wrongful
pregnancy. Discovery ensued.
On September 21, 2011, the Defendants took the depositions of Mr. and Mrs. Speck.4 In
Mrs. Speck’s deposition, she testified that she first suspected that she was pregnant on
November 27, 2009, the day after Thanksgiving. Her suspicion was triggered by the fact that
her monthly menstrual cycle was “several days late,” which she thought was unusual.5 Mrs.
Speck testified:
[Question:] When did you suspect that you were pregnant? . . .
[Mrs. Speck:] . . . It was the day after Thanksgiving in 2009.
2
The ultrasound also showed that one of the coils inserted in the course of the Essure Procedure to block Mrs.
Speck’s fallopian tubes had become dislodged.
3
That statute provides in part:
(a)(1) Any person, or that person’s authorized agent, asserting a potential claim for health
care liability shall give written notice of the potential claim to each health care provider that
will be a named defendant at least sixty (60) days before the filing of a complaint based
upon health care liability in any court of this state.
Tenn. Code Ann. § 29-26-121(a)(1) (2012).
4
The Plaintiffs took the deposition of Dr. Roy on the same day.
5
A Woman’s Clinic medical record dated November 30, 2009 indicates that Mrs. Speck’s last menstrual
cycle had occurred 5.5 weeks prior to that visit.
-3-
...
[Question:] Why were you suspicious? Or why did you think you were
pregnant?
[Mrs. Speck:] My period was several days late.
[Question:] And that was unusual —
[Mrs. Speck:] Yes, sir.
[Question:] — because you’d always had regular periods.
[Mrs. Speck:] They were always a couple days late, but not that many.
[Question:] And having been pregnant before, you knew what that likely —
[Mrs. Speck:] Yes, sir.
[Question:] — signified, didn’t you.
[Mrs. Speck:] (The witness nodded.)
[Question:] And what did you do to confirm your suspicion that you were
pregnant?
[Mrs. Speck:] I went and bought a home pregnancy test, two pregnancy tests.
...
[Question:] . . . Why did you get two?
[Mrs. Speck:] To make double sure.
...
[Question:] And the only thing you had in mind was you were pregnant?
[Mrs. Speck:] It’s the only thing I could think of.
Mrs. Speck also testified that the results of the two home pregnancy tests she took were
“clearly” positive. Mrs. Speck said that she called Mr. Speck to tell him about the test results
after the first test was positive.
Mrs. Speck testified about going to the Woman’s Clinic a few days after she took the home
pregnancy tests, and about taking another urine pregnancy test there. She said that the
ultrasound performed at the Clinic showed that “[t]he baby was where it was supposed to be
in the uterus.” When the Specks met with Dr. Roy a few days later, Mrs. Speck said, he was
as “surprised and blown away as we were” that she was pregnant.
In Mr. Speck’s deposition, he testified that he knew his wife was pregnant even before she
took the pregnancy tests. He said, “I know my wife, and I know — I know how easily we
got pregnant with the first two children. And . . . my gut told me she was pregnant.” Like
Mrs. Speck, Mr. Speck noted that the Woman’s Clinic gave Mrs. Speck another pregnancy
test that confirmed her pregnancy. He commented, however, that there“was never really any
question” in his mind about Mrs. Speck being pregnant when they went to the Clinic that first
time. After that visit, Mr. Speck testified, the Woman’s Clinic called them and asked Mrs.
Speck to undergo another round of tests to determine whether she had a tubal pregnancy. In
-4-
that next visit, Clinic personnel performed an ultrasound on Mrs. Speck, which showed a
normal pregnancy.
Based on the Specks’ deposition testimony, the Defendants filed a motion for summary
judgment on February 1, 2012. The Defendants asserted in their motion that the Specks’
complaint was time-barred under the one-year statute of limitations set out in Tennessee
Code Annotated § 29-26-116.6 That same day, the Defendants also filed a motion for partial
summary judgment in which they argued that the Specks’ claimed damages for “the costs of
raising, educating, nurturing, etc. of the child born subsequent to the procedure” are not
recoverable in Tennessee as a matter of law pursuant to Smith v. Gore, 728 S.W.2d 738(Tenn. 1987).
On April 5, 2011, the Specks filed the affidavit of Mrs. Speck in which she attempted to put
her deposition testimony into context. In the affidavit, Mrs. Speck stated that she was not
satisfied that the home pregnancy tests were accurate, so she “went to see [her] physician to
find out if in fact [she] was pregnant via medical testing or ultrasound.” Her affidavit states:
“I was very suspicious that I would have had a false positive to the [home] pregnancy test .
. . because I had been assured by Dr. Roy that I could not get pregnant and therefore it came
as a total shock to me when I was told by the doctor that in fact I was pregnant.” Mrs. Speck
explained her deposition testimony as follows: “[W]hen I said that I felt I was pregnant or
thought that I was pregnant, or whatever word I used, that is with hindsight.” Further
clarifying her deposition testimony, the affidavit explains, “At the time I did the home
pregnancy test, I did feel like I was pregnant but I know that home pregnancy tests have a
certain percentage of false positives and I knew that until it had been confirmed by the doctor
via appropriate medical testing and/or sonogram, that I would not know for sure.” The
affidavit states that Mrs. Speck went to the Woman’s Clinic “to ascertain if in fact I was or
was not pregnant regardless of my suspicions, feelings, thought processes, or home
pregnancy test, I knew I would not be confirmed as pregnant until the doctor ran the
appropriate medical test.” Thus, she averred that the first time she “knew” that she was
pregnant was on December 1, 2009, the date of the ultrasound test at the Clinic.
6
That statute provides:
(a)(1) The statute of limitations in health care liability actions shall be one (1) year as set
forth in § 28-3-104.
(2) In the event the alleged injury is not discovered within such one-year period, the period
of limitation shall be one (1) year from the date of such discovery.
Tenn. Code Ann. § 29-26-116(a)(1) and (a)(2) (2012).
-5-
On April 11, 2011, the Defendants filed the affidavit of Dr. Roy in support of their motions
for summary judgment. Dr. Roy’s affidavit states, inter alia, that the Woman’s Clinic uses
“the same type of pregnancy test that is purchased over the counter,” and that the over-the-
counter tests and the tests used at the Clinic have “the same accuracy,” which is 99%. He
averred in his affidavit that an ultrasound is not used to confirm whether a patient is
pregnant, but rather is used “to confirm whether or not a patient has an ectopic or intrauterine
pregnancy.”
On April 12, 2011, the trial court conducted a hearing on the Defendants’ motions for
summary judgment. At the hearing, the Defendants argued that the Specks discovered the
injury — in this case, pregnancy — on or before November 27, 2009, when the home
pregnancy test indicated that Mrs. Speck was pregnant. Based on this, the Defendants
asserted that the Specks should have given the Defendants notice of their medical
malpractice claim by November 27, 2010. Since the Specks gave their notice to the
Defendants on November 29, 2010, the Defendants contended, the notice was too late. The
Defendants also argued that, even if the cause of action began to accrue on November 29,
2009, and the initial notice was deemed timely, the Specks’ lawsuit was nevertheless
untimely filed. They noted that, to file suit within the grace period of 120 days after the
expiration of the applicable statute of limitations, the Specks would have had to file their
lawsuit no later than March 29, 2010, but the Specks filed their lawsuit on March 30, 2010.7
Therefore, the Defendants argued, the Specks’ lawsuit was untimely as a matter of law.
In response, the Specks asserted that the limitations period for their claim began to accrue
on December 1, 2009, when Mrs. Speck underwent the ultrasound at the Woman’s Clinic.
The Specks reasoned that this was the date on which Mrs. Speck knew for certain that she
was pregnant. The Specks claimed that their argument is bolstered by the fact that the
Woman’s Clinic did not instruct Mrs. Speck to stop taking her prescription medication until
December 1, 2009, when the ultrasound confirmed that she was pregnant. The Specks
characterized any knowledge Mrs. Speck had about her pregnancy before December 1, 2009
as based on hindsight. The Specks contended there is, at the very least, a fact question on
7
The statute providing for the 120-day grace period provides:
(c) When notice is given to a provider as provided in this section, the applicable statutes of
limitations and repose shall be extended for a period of one hundred twenty (120) days from
the date of expiration of the statute of limitations and statute of repose applicable to that
provider. Personal service is effective on the date of that service. Service by mail is
effective on the first day that service by mail is made in compliance with subdivision
(a)(2)(B). . . .
Tenn. Code Ann. § 29-26-121(c).
-6-
the issue of when Mrs. Speck knew or should have known that she was pregnant, so summary
judgment was inappropriate.
At the conclusion of the hearing, the trial court issued an oral ruling granting the Defendants’
motion for summary judgment. The trial court held that the Specks were “on notice of the
pregnancy by November 27th , 2009” as a matter of law. It agreed with the Specks that the
November 29, 2010 notice was timely because the one-year deadline, November 27, 2010,
fell on a Saturday, so giving notice on the following Monday was timely. It held however
that the Specks’ March 30, 2011 complaint was untimely because it was not filed within the
120-day grace period provided by statute. In the same oral ruling, the trial court granted the
Defendants’ motion for partial summary judgment on damages based on Smith v. Gore, thus
resolving all issues before the court.8
On April 27, 2012, the trial court entered a written order consistent with its oral ruling,
granting summary judgment in favor of the Defendants based on the applicable statute of
limitations and dismissing the Specks’ action. The trial court recited the following
undisputed facts:
1. On August 25, 2008, Dr. Ryan Roy performed an Essure sterilization
procedure on Mrs. Julie Speck. The purpose of the procedure was to prevent
Mrs. Speck from becoming pregnant.
2. Mrs. Speck had been pregnant four (4) times before the pregnancy at issue
in this case.
3. Mrs. Speck had a history of regular and timely menstrual periods.
4. In her deposition, Mrs. Speck testified that she suspected she was pregnant
on the day after Thanksgiving in 2009. The day after Thanksgiving in 2009
was November 27, 2009.
5. Mrs. Speck testified that she believed she was pregnant, because her
menstrual period was several days late and that was unusual for her. Having
been pregnant before and having had regular and timely menstrual periods
previously, she knew that her menstrual period being late likely meant that she
was pregnant.
8
The Specks acknowledged at the hearing that child-rearing expenses are not recoverable in Tennessee under
the holding in Smith v. Gore, but they sought to preserve the claim in order to advocate a change in the law
at the appellate level.
-7-
6. To confirm her belief that she was pregnant, Mrs. Speck bought two (2)
home pregnancy tests on November 27, 2009. By her own testimony, Mrs.
Speck bought two home pregnancy tests, because she wanted to be “double
sure” of the results.
7. By November 27, 2009, she had informed her husband, Plaintiff Kevin
Speck, that her menstrual period was late and the only thing she could think
was that she was pregnant. Mr. Speck believed Mrs. Speck was pregnant at
that time.
8. The pregnancy tests that Mrs. Speck purchased indicated that they were
99% accurate.
9. Mrs. Speck took the first pregnancy test on November 27, 2009, and it was
positive. The positive result was clear, obvious, and immediate. Mrs. Speck
told Mr. Speck about the results of the pregnancy test. The pregnancy test had
confirmed that Mrs. Speck was pregnant, and that’s what she had believed to
be true even before she confirmed it with the pregnancy test. Mrs. Speck was
upset that she was pregnant.
10. Mrs. Speck took a second pregnancy test on November 27 or 28, 2009,
and it was also positive.
Based on these undisputed facts, the trial court concluded that Mrs. Speck “knew or should
have known that she was pregnant no later than November 27, 2009,” because “[b]y that
date, she was aware of facts sufficient to put a reasonable person on notice that she was
pregnant . . . .” The trial court also noted that Mrs. Speck was actually aware of the relevant
facts, because she “undertook steps to investigate or inquire her belief that she was pregnant
by taking a home pregnancy test, which confirmed her pregnancy within 99% accuracy.”
Therefore, consistent with its oral ruling, the trial court used November 27, 2009, as the
accrual date for the Specks’ cause of action. It also held, consistent with its oral ruling, that
Section 29-26-121 notice was timely given, because November 27, 2010, fell on a Saturday,
and “the statute of limitations did not run until November 29, 2010, the following Monday.” 9
The trial court held, however, that the Specks’ complaint was not filed within 120 days of
9
The Defendants do not challenge on appeal the trial court’s conclusion that the Specks’ pre-suit notice was
timely filed on November 29, 2009, based on the fact that November 27, 2009 fell on a Saturday, and we
therefore do not address the issue in this opinion.
-8-
the pre-suit notice, because Section 29-26-121(c) “only extends the applicable statute of
limitations for one hundred twenty (120) days from the date of the expiration of the statute
of limitations . . . .” Because the 120-day period expired on March 29, 2011, the trial court
held that the filing of the Specks’ complaint on March 30, 2011, was untimely. Accordingly,
the trial court granted the Defendants’ motion for summary judgment on that basis.
Also on April 27, 2012, the trial court entered a separate written order granting the
Defendants’ motion for partial summary judgment. It held that the Specks are precluded
from recovering any damages other than those permitted in Smith v. Gore.
Meanwhile, on April 16, 2011, after the trial court’s oral ruling but before the trial court
entered its written orders, the Specks filed a motion to alter or amend or to reconsider the
trial court’s oral ruling on summary judgment. The Specks asserted in the motion to alter or
amend that they “have filed or will file the Supplemental Affidavit of Julie Speck,” which
would supply further information that would necessitate a reversal of the trial court’s oral
ruling. In the motion to alter or amend, the Specks did not challenge the trial court’s grant
of partial summary judgment based on Smith v. Gore.
On April 24, 2011, as indicated in the motion to alter or amend, the Specks filed the
Supplemental Affidavit of Plaintiff Julie Speck (“Supplemental Affidavit”). In the
Supplemental Affidavit, Mrs. Speck stated that she called the Woman’s Clinic “on November
27, 28, or 29,” 2009, and told the person who answered that she had undergone an Essure
Procedure and “could not be pregnant but was suspicious and needed to talk to a doctor.”
When Dr. Roy returned her call, Mrs. Speck averred, he told her that “there was no way that
I could be pregnant, it was not possible, you cannot be pregnant were his words.” When Mrs.
Speck told Dr. Roy about the positive results from her two home pregnancy tests, Mrs. Speck
stated, Dr. Roy responded “that something was wrong, that you cannot be pregnant, that there
have been some false positives on pregnancy test[s] and that apparently there was a batch of
faulty or defective pregnancy tests in the Jackson area.” Dr. Roy told Mrs. Speck to call the
Clinic the next Monday to make an appointment to “be tested to see what was wrong, but that
I could not be pregnant and that it would have to be something other than pregnancy that was
going on physically.” Based on Dr. Roy’s assurances, the Specks argued, Mrs. Speck could
not be certain that she was pregnant until the ultrasound performed at the Clinic confirmed
it. At the very least, the Specks contended, Mrs. Speck’s Supplemental Affidavit created a
fact question on the issue of notice. After the trial court filed its April 27, 2012 written
orders granting summary judgment in favor of the Defendants, the Specks refiled the same
motion to alter or amend.
On July 13, 2012, the trial court conducted a hearing on the motion to alter or amend. At the
conclusion of the hearing, the trial court denied the motion and reaffirmed its earlier ruling.
-9-
The trial court first held that it would be inappropriate to consider the Supplemental Affidavit
of Mrs. Speck, because that affidavit could have been submitted before the trial court issued
its ruling on the summary judgment motions. Nevertheless, the trial court held, even if it
considered the Supplemental Affidavit, it would nevertheless deny the motion to alter or
amend, because the undisputed facts still showed that by November 27, 2009, Mrs. Speck
was aware of sufficient facts to put her on notice of her pregnancy. The trial court reasoned
that, “it’s not a question of knowing absolutely that she was pregnant. It’s a matter of putting
— being put on notice of the possibility.”
On August 9, 2012, the trial court entered an order on the motion to alter or amend consistent
with its oral ruling, stating that the motion failed “to meet any of the Rule 59 grounds for
overturning the Order Granting the Defendants’ Motion for Summary Judgment.” The
Specks now appeal.
ISSUES ON A PPEAL AND S TANDARD OF R EVIEW
On appeal, the Specks raise the following issues:
1. Whether the trial court erred in granting the Defendants’ motion for
summary judgment?
2. Whether the trial court erred in denying the Specks’ motion to alter or
amend?
3. Whether the trial court erred in granting the Defendants’ motion for partial
summary judgment?
“The granting or denying of a motion for summary judgment is a matter of law, and our
standard of review is de novo with no presumption of correctness.” Kinsler v. Berkline,
LLC, 320 S.W.3d 796, 799 (Tenn. 2010). In conducting our review, we are guided by the
following well-established standards:
A summary judgment is appropriate only when the moving party can
demonstrate that there is no genuine issue of material fact and that it is entitled
to judgment as a matter of law. Tenn. R. Civ. P. 56.04; Hannan v. Alltel
Publ’g Co., 270 S.W.3d 1, 5 (Tenn. 2008). When ruling on a summary
judgment motion, the trial court must accept the nonmoving party’s evidence
as true and resolve any doubts concerning the existence of a genuine issue of
material fact in favor of the nonmoving party. Shipley v. Williams, 350
S.W.3d 527, 536 (Tenn. 2011) (quoting Martin v. Norfolk S. Ry., 271 S.W.3d
-10-
76, 84 (Tenn. 2008)). “A grant of summary judgment is appropriate only when
the facts and the reasonable inferences from those facts would permit a
reasonable person to reach only one conclusion.” Giggers v. Memphis Hous.
Auth., 277 S.W.3d 359, 364 (Tenn. 2009) (citing Staples v. CBL & Assocs.,
Inc., 15 S.W.3d 83, 89 (Tenn. 2000)).
Dick Broad. Co. of Tenn. v. Oak Ridge FM, Inc., 395 S.W.3d 653, 671 (Tenn. 2013).
We review a trial court’s decision to grant or deny a motion to alter or amend pursuant
to Rule 59.04 of the Tennessee Rules of Civil Procedure under the more deferential abuse-of-
discretion standard.10 Stovall v. Clarke, 113 S.W.3d 715, 721 (Tenn. 2003). Under this
standard, “[a] trial court abuses its discretion only when it ‘applie[s] an incorrect legal
standard or reache[s] a decision which is against logic or reasoning that cause[s] an injustice
to the party complaining.’ ” Eldridge v. Eldridge, 42 S.W.3d 82, 85 (Tenn. 2001) (quoting
State v. Shirley, 6 S.W.3d 243, 247 (Tenn. 1999)). If the trial court’s discretionary decision
is within the range of acceptable alternatives, we will not substitute our judgment for that of
the trial court simply because we may have chosen a different alternative. See White v.
Vanderbilt Univ., 21 S.W.3d 215, 223 (Tenn. Ct. App. 1999).
A NALYSIS
Summary Judgment
Tennessee Code Annotated § 29-26-116 states: “The statute of limitations in malpractice
actions shall be one (1) year as set forth in § 28-3-104.” Tenn. Code Ann. § 29-26-116(a)(1).
The statute refers to the so-called “discovery rule” by providing that, if “the alleged injury
is not discovered within such one (1) year period, the period of limitation shall be one (1)
year from the date of such discovery.” Tenn. Code Ann. 29-26-116(a)(2). Thus, under the
discovery rule, the statute of limitations in medical malpractice actions “is tolled only during
the period when the plaintiff has no knowledge at all that a wrong has occurred, and as a
reasonable person is not put on inquiry.” Roe v. Jefferson, 875 S.W.2d 653, 656-57 (Tenn.
1994); see Redwing v. Catholic Bishop for the Diocese of Memphis, 363 S.W.3d 436, 458
(Tenn. 2012) (discussing historical background of discovery rule). The discovery rule
applies in cases in which the plaintiff does not discover and could not reasonably be expected
to discover that he has a right of action; it does not permit the plaintiff to wait until he knows
all of the injurious effects and consequences of a tortious act. Potts v. Celotex Corp., 796
10
The Specks did not cite Rule 59.04 of the Tennessee Rules of Civil Procedure in their motion to alter or
amend, but the trial court properly treated the motion as such.
-11-
S.W.2d 678, 680-81 (Tenn. 1990). The Tennessee Supreme Court recently summarized the
discovery rule as applied in medical malpractice cases:
In summary, a medical malpractice cause of action accrues when one
discovers, or in the exercise of reasonable diligence should have discovered,
both (1) that he or she has been injured by wrongful or tortious conduct and (2)
the identity of the person or persons whose wrongful conduct caused the
injury. A claimant need not actually know of the commission of a wrongful
action in order for the limitations period to begin, but need only be aware of
facts sufficient to place a reasonable person on notice that the injury was the
result of the wrongful conduct of another. If enough information exists for
discovery of the wrongful act through reasonable care and diligence, then the
cause of action accrues and the tolling of the limitations period ceases. Neither
actual knowledge of a breach of the relevant legal standard nor diagnosis of
the injury by another medical professional is a prerequisite to the accrual of a
medical malpractice cause of action.
Sherrill v. Souder, 325 S.W.3d 584, 595 (Tenn. 2013) (emphasis added). Knowledge of
facts sufficient to give notice of the injury and the fact that the injury was the result of the
wrongful or tortious conduct of another is “variously referred to as ‘constructive notice’ or
‘inquiry notice.’” Redwing, 363 S.W.3d at 459. The plaintiff is deemed to have constructive
notice or inquiry notice when the plaintiff “in the exercise of reasonable care and diligence
should know that an injury has been sustained as a result of wrongful or tortious conduct by
the defendant.” Shadrick v. Coker, 963 S.W.2d 726, 733 (Tenn. 1998).
On appeal, the Specks argue that the trial court erred in holding as a matter of law that they
“discovered the alleged injury no later than November 27, 2009.” They claim that the trial
court must presume that “whether a plaintiff exercised reasonable care and diligence in
discovering the injury or wrong is a question of fact for the jury to determine.” This
presumption is overcome, the Specks assert, only if the facts viewed in a light most favorable
to the moving party permit the trier of fact to reasonably reach only one conclusion. They
claim that, in this case, the date on which the Specks had inquiry notice of their claim against
the Defendants remains a question of fact for the jury, because some of the evidence in the
record indicates that Mrs. Speck did not know for certain that she was pregnant until she was
tested at the Woman’s Clinic on November 30 and/or December 1, 2009. For that reason,
the Specks maintain, the trial court erred in granting summary judgment in favor of the
Defendants.
In this case, the claimed injury is a healthy pregnancy that occurred after the Defendants
performed a pregnancy-avoidance medical procedure in an allegedly negligent manner. In
-12-
this circumstance, the limitations period began to run when the Specks had knowledge of
facts sufficient to put a reasonable person on notice that Mrs. Speck was “injured,” i.e.,
pregnant. See Redwing, 363 S.W.3d at 459 (quoting Carvell v. Bottoms, 900 S.W.2d 23, 29
(Tenn. 1995) (quoting Roe, 875 S.W.2d at 657)). The Supreme Court has explained that,
“once a plaintiff gains information sufficient to alert a reasonable person of the need to
investigate ‘the injury,’ the limitation period begins to run.” Sherrill, 325 S.W.3d at 593 n.7
(quoting Rathje v. Mercy Hosp., 745 N.W.2d 443, 461 (Iowa 2008)). “The discovery rule
is not intended to permit a plaintiff to delay filing suit until the discovery of all the facts that
affect the merits of his or her claim.” Redwing, 363 S.W.3d at 459. “Neither actual
knowledge of a breach of the relevant legal standard nor diagnosis of the injury by another
medical professional is a prerequisite to the accrual of a medical malpractice cause of
action.” Sherrill, 325 S.W.3d at 595.
Applying these principles to the undisputed facts in this case, we must agree with the trial
court that the Specks were at least on inquiry notice of Mrs. Speck’s pregnancy no later than
November 27, 2009. All of the evidence submitted — the Specks’ depositions and Mrs.
Speck’s affidavits — indicate that Mrs. Speck suspected she was pregnant on that date and
received at least some confirmation of her suspicion in the form of a positive result on one
of the home pregnancy tests she purchased. Under these circumstances, the Specks were on
inquiry notice on November 27, 2009, regardless of the accuracy of the home pregnancy
test,11 regardless of whether the Specks subjectively believed that the test results were
inaccurate, and regardless of whether the purpose of an ultrasound test is to confirm the
results of other types of pregnancy tests. As we have indicated, one need not know “of all
the facts that affect the merits of . . . her claim,” Redwing, 363 S.W.3d at 459, and “diagnosis
of the injury by another medical professional” is not a prerequisite for inquiry notice, see
Sherrill, 325 S.W.3d at 595. Accordingly, we must conclude that the trial court did not err
in granting summary judgment in favor of the Defendants based on the applicable statute of
limitations.12
11
The boxes containing the home pregnancy tests indicate that the results are 99% accurate, and Dr. Roy’s
affidavit establishes that the urine tests performed in the Clinic have the same level of accuracy.
12
The Specks do not dispute that, if November 27, 2009 is determined to be the accrual date for the statute
of limitations, even if extended to the following Monday (November 29, 2009), then the lawsuit is untimely
because it was not filed within 120 days of the applicable statute of limitations pursuant to Section 29-26-
121(c).
-13-
Motion to Alter or Amend
The Specks argue further that the trial court abused its discretion in denying the motion to
alter or amend the grant of summary judgment, and in refusing to consider Mrs. Speck’s
Supplemental Affidavit that was filed to support the motion to alter or amend.
In denying the Specks’ motion to alter or amend, the trial court reasoned:
The Court finds that a Rule 59.04 motion serves a limited purpose and should
be granted for one of three reasons: “(1) controlling law changed before the
judgment becomes final; (2) when previously unavailable evidence becomes
available; or (3) to correct a clear error of law or to prevent injustice.”
Chambliss v. Stohler, 124 S.W.3d 116 (Tenn. Ct. App. 2003). The Court
finds that Plaintiffs’ Motion to Alter and/or Amend Judgment/Reconsider
Granting Defendants’ Motion for Summary Judgment fails to meet any of the
Rule 59 grounds for overturning the Order Granting Defendants’ Motion for
Summary Judgment.
The trial court then held that it would be inappropriate to consider the Supplemental
Affidavit of Mrs. Speck in ruling on the motion to alter or amend because the affidavit
“attempts to create an issue of material fact after an adverse ruling of this Court” and was
inconsistent with Mrs. Speck’s prior testimony. Furthermore, the trial court reasoned, the
Specks offered “no plausible reason for failing to present the evidence contained in the
Supplemental Affidavit of Julie Speck prior to the hearing on Defendants’ Motion for
Summary Judgment.” In the alternative, even if the Supplemental Affidavit were considered,
the trial court held, it would nevertheless deny the Specks’ motion to alter or amend. The
trial court observed that the facts stated in the Supplemental Affidavit did not affect the ten
undisputed facts set out in the trial court’s summary judgment order. The Specks both
admitted to early suspicions that Mrs. Speck was pregnant based on her late period and on
the positive test results from home pregnancy tests that “were 99% accurate.” For all of these
reasons, the trial court denied the Specks’ motion to alter or amend.
We agree with the trial court that, even if Mrs. Speck’s Supplemental Affidavit were
considered, it does not create a genuine issue of material fact on the issue of notice. The
Supplemental Affidavit states that Dr. Roy assured Mrs. Speck that “there was no way that
[she] could be pregnant, it was not possible, [she] cannot be pregnant were his words.” It
also states that Dr. Roy told Mrs. Speck that “that there have been some false positives on
pregnancy test[s] and that apparently there was a batch of faulty or defective pregnancy tests
in the Jackson area.” However, none of the alleged statements by Dr. Roy change the
undisputed fact that by November 27, 2009, Mrs. Speck’s menstrual period was late and she
-14-
had tested positive for pregnancy on at least one home pregnancy test. Dr. Roy’s alleged
statements may have given Mrs. Speck some reason to hope that her suspicions were
incorrect, but she was still placed on inquiry notice before Dr. Roy’s alleged statements and
remained on inquiry notice after his statements. This conclusion is bolstered by the further
undisputed fact that Mrs. Speck continued to investigate whether she was pregnant after
speaking to Dr Roy. Thus, even giving the Specks the benefit of every reasonable inference,
they still had knowledge of facts that placed them on inquiry notice about Mrs. Speck’s
pregnancy. See Roe, 875 S.W.2d at 656-57 (statute of limitations in medical malpractice
action “is tolled only during the period when the plaintiff has no knowledge at all that a
wrong has occurred”). This holding makes it unnecessary for us to address whether the trial
court erred in declining to consider Mrs. Speck’s Supplemental Affidavit.
Under these circumstances, we must conclude that the trial court did not abuse its discretion
in denying the Specks’ motion to alter or amend the order granting the Defendants’ motion
for summary judgment based on the statute of limitations.
C ONCLUSION
We affirm the trial court’s grant of summary judgment in favor of the Defendants based on
the applicable statute of limitations, and we also affirm the trial court’s denial of the Specks’
motion to alter or amend the order granting summary judgment. This holding results in
affirmance of the trial court’s dismissal of the Specks’ lawsuit in its entirety, and makes it
unnecessary for us to address the Specks’ argument that the trial court erred in granting the
Defendants’ motion for partial summary judgment based on Smith v. Gore. All other
arguments raised but not specifically addressed herein are either rejected or are pretermitted
by our decision.
The decision of the trial court is affirmed. Costs on appeal are to be taxed to the
Plaintiff/Appellants Julie Speck and Kevin Speck and their surety, for which execution may
issue, if necessary.
_________________________________
HOLLY M. KIRBY, JUDGE
-15-