Appellate court overturns dismissal of medical lawsuit

By Thomas Wilson

STAR STAFF
twilson@starhq.com

   The Tennessee Eastern District Court of Appeals has reversed a local Circuit Court decision dismissing a lawsuit originally filed against four local physicians and Sycamore Shoals Hospital.
   Plaintiffs Sheryl Faulks and Bruce Zabower originally filed suit against Drs. Brenda Crowder, Robert Grindstaff, Richard Reece and James K. McGraw and Sycamore Shoals Hospital in October 1997.
   The suit alleged medical malpractice against the defendants after the plaintiffs' five-day-old son died after being diagnosed with hypoplastic left heart syndrome, according to case background.
   Circuit Court Judge Jean Stanley issued a ruling that dismissed both complaints "on the grounds of insufficient return of summons" in July 2000.
   The three-member Appellate Court's opinion delivered by Judge D. Michael Swiney reversed Stanley's ruling on Sept. 5.
   The Court cited a case ruled on by the Tennessee Supreme Court regarding timeliness of legal service and the statute of limitations in legal filings. Judges Houston Goddard and Herschel P. Franks joined Swiney's opinion.
   When the suit was originally filed, the case background read that, along with the complaint and five summonses, the attorney for plaintiffs enclosed a cover letter to the court clerk stating they were "not seeking service at this time."
   As a result, the summonses were issued, but no attempt was made to serve them on the defendants, according to the case background.
   Crowder filed a motion to dismiss the complaint in May 1998 alleging ineffective and/or lack of service of process. Four of the five defendants, except Crowder, were nonsuited in July 1998, but a new lawsuit was filed against the four in August 1999.
   The two lawsuits were ultimately consolidated in early 2000.
   Attorneys for Grindstaff, Reece, and Sycamore Shoals filed separate legal motions to dismiss and/or for summary judgment, asserting the new complaint was not filed timely and was barred by the statute of limitations.
   The defendants essentially claimed the first lawsuit was never properly commenced, the statute of limitations was not tolled and the second lawsuit was filed too late, according to the court ruling.
   The court's opinion included a footnote that McGraw was never served with the second complaint and was eventually dismissed from the lawsuit, according to the court ruling.
   The remaining defendants in the original suit -- Grindstaff, Reece, and Sycamore Shoals Hospital -- filed a motion to dismiss challenging the effectiveness of the service of process. Crowder also filed a motion to dismiss on the same grounds.
   Swiney cited the 2002 state Supreme Court case Frye v. Blue Ridge Neuroscience Center, P.C., which questioned whether a legal process issued upon a second complaint satisfies the state Rules of Civil Procedure when a plaintiff failed to serve process on the original complaint.
   The Supreme Court ruled that a plaintiff may rely upon the initial filing date to satisfy a statute of limitations if the plaintiff, having failed to issue or serve process within 30 days of filing the complaint, continues the action by issuing new process on the original complaint.
   Swiney's opinion read that Faulks and Zabower "never effectively served these three defendants in the first lawsuit, but rather nonsuited the case and had process issued in the second lawsuit."
   The Appellate Court ruled that "in accordance with Frye, plaintiffs must show that they nonsuited the first action within the one year time period provided in Rule 3 and they served a copy of the Notice of Voluntary Dismissal and the Complaint on these three Defendants."
   Swiney wrote that this issue was not addressed by the trial court, which did not have the benefit of the Frye opinion at the time of its final judgment.
   The court reversed motions to dismiss Grindstaff, Reece, Crowder, and Sycamore Shoals, and remanded the case back to the trial court for a determination as to whether plaintiffs complied with rules of serving the process under the Frye ruling.