Resident suffered from Alzheimers’s dementia. While he was in the nursing home, he developed a severe scrotal infection. He was taken to the hospital on September 8, 2003 where hospital personnel described his condition as the worst case of neglect they had ever seen. Resident died on November 4, 2003. Suit was filed on September 30, 2004. Trial court granted summary judgment finding that Plaintiffs filed suit after the one-year statute of limitations ran. Plaintiffs argued on appeal that in a wrongful death action, the limitations period is one year from discovery. T.C.A. § 29-26-116(a). The court found that the facts establishing the date of discovery were clear; hospital personnel told Plaintiffs no later than September 9, 2003, that it was the worst case of neglect they had seen. The court went on to note that Tennessee’s legal disability statute, T.C.A. § 28-1-106, tolls the statute of limitations for legally disabled individuals for so long as the disability of unsound mind remains regardless of whether the individual has had a legal guardian appointed to pursue claims of his behalf. The court concluded that the trial court was correct in granting summary judgment on the discovery rule, but vacated the judgment and remanded the care for consideration of whether Resident suffered from a legal disability. Decided: October 2, 2006.

Opinion at: http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/064/burkopn.pdf