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14 Mem. St. U. L. Rev. 115 (1983-1984)
Torts - The Discovery Rule and the Statute of Limitations in Medical Malpractice Actions

handle is hein.journals/umem14 and id is 125 raw text is: Case Comments

used as a reference point in states where the status of the issue
remains uncertain.72
Torts-The Discovery Rule and the
Statute of Limitations in Medical
Malpractice Actions
Plaintiff fell at her home on November 29, 1979, fracturing
several small bones in her foot. After an examination the follow-
ing day, physicians at a local community hospital advised the
plaintiff that she had no broken bones. Upon re-examination by
another physician on March 11, 1980, plaintiff discovered that
the bones were indeed fractured. Plaintiff sought relief for inju-
ries sustained as a result of the asserted misdiagnosis by the lo-
cal physician and filed her complaint on March 10, 1981, ap-
proximately sixteen months after the alleged malpractice but
within a year after discovering her injury. At trial, defendant
moved to dismiss on the grounds that the action was time-
barred. On interlocutory appeal,' the Tennessee Court of Ap-
peals, Middle Section, reversed the trial court's decision denying
defendant's motion to dismiss, holding that Tennessee Code An-
notated section 29-26-116(a)(1) requires the plaintiff in a medi-
72. A particular state's law may remain unclear on this point if its courts have not
had the opportunity to precisely address this issue or if the courts have failed to discuss
how the purpose for which the evidence is offered may affect its admissibility. Federal
law has ordinarily admitted evidence of prior similar occurrences and theoretically would
be more lenient in allowing evidence of an absence of prior occurrences. See Sturm v.
Clark Equip. Co., 547 F. Supp. 144, 145 (W.D. Mo. 1982).
1. TENN. CODE ANN. § 27-3-105(c) (1980) provides:
When the chancellor or circuit judge, whether at law or in equity, in making in a
civil action an order not otherwise appealable under this section, shall be of the
opinion that such order involves:
(1) The distinct potential for irreparable harm to one of the parties; or
(2) A controlling question of law as to which there is substantial ground for differ-
ence of opinion, and such chancellor or circuit judge is of the opinion that an
immediate appeal from such order may materially advance the ultimate termina-
tion of the litigation, he shall so certify in writing and allow an appeal to be


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