Appeals court rules in favor of Covenant Health, other defendants in excessive radiation lawsuit

A three-judge appeals court panel has ruled in favor of Covenant Health and two other defendants in five lawsuits that alleged that the absence of shielding in part of the emergency department at Methodist Medical Center exposed five X-ray and radiologic technologists, including two who were pregnant, to excessive radiation.

The unanimous opinions by the three Tennessee Court of Appeals judges—D. Michael Swiney, John W. McClarty, and Thomas R. Frierson II—were filed June 9 in Knoxville. They affirmed an order by Anderson County Circuit Court Judge Donald R. Elledge granting a summary judgement in favor of the defendants: Covenant Health, Rentenbach Engineering Company, and TEG Architects LLC.

The lawsuits were filed in January 2014 by Connie Raby, Keith Gillis, Michael Phillips, Mary Ridenour on behalf of her and her child, and Micah Noelle Lewellen on behalf of her and her child.

The lawsuits alleged that the technologists were exposed to excess radiation for several years at Methodist Medical Center because some walls in and around a radiology imaging center in the new emergency department, which opened in February 2006 as part of a hospital remodel, were built without the required lead shielding, elevating the workers’ risk of health problems, including cancer.

But the defendants filed motions for summary judgement, and Elledge granted them. The defendants argued that a construction statute known as the statute of repose had expired.

But the plaintiffs appealed, arguing that the statute of repose did not run because the absence of the required shielding in the radiology facilities meant the project was not substantially completed on the date determined by the Anderson County Circuit Court.

The Tennessee Court of Appeals disagreed.

“We hold…that the radiology facilities, while perhaps defective, were used for their intended purpose and were substantially complete as found by the trial court,” the three-judge panel said in its unanimous decision. “The construction statute of repose expired and serves to defeat plaintiffs’ claims. We affirm the trial court.”

In the Circuit Court order, Elledge said the lawsuits were construction lawsuits involving errors and omissions, where one panel of lead-lined Sheetrock was left out of the X-ray room.

Elledge said there was a notice of substantial completion filed in March 2006, and the room was used between March 2006 and December 2013 as an X-ray and CT room.

Tennessee’s construction statute of repose would require actions seeking to recover damages to be brought within four years after substantial completion of the improvement, Elledge said.

“I have nothing that contradicts the date of completion, of substantial completion, as defined by statute and case law being on or about March 23, 2006,” Elledge said. “I find nothing, nothing, in the record that contradicts the fact that none of the defendants in this case knew or attempted to fraudulently conceal any cause of injury that is allegedly suffered by the plaintiffs in each of these five cases.”

But the plaintiffs argued that the absence of the shielding in the wall meant that the construction project was not substantially completed until that defect was corrected.

“Therefore, according to plaintiffs, the statute of repose did not expire because it never started running until the defect was corrected,” the three-judge appellate court panel said in its discussion of the case.

But, the Appeals Court said, “the undisputed evidence in the record on appeal is that the emergency department, including the CT room at issue, was used from March 2006. The fact that the improvement allegedly was defective does not prevent that improvement from being substantially complete.”

The Appeals Court said it is clear that the Tennessee General Assembly intended to set an outer limit to liability arising from defective work on improvements to real property through the construction statute of repose.

The plaintiffs filed their lawsuits in January 2014.

“The four-year statute of repose had long expired, and this serves to defeat plaintiffs’ claims,” the judges said.

The three judges said the costs on appeal are assessed against the appellants, which were the plaintiffs in the lawsuits.

When the suits were filed, Lewellen, of Knoxville, was an X-ray technologist allegedly exposed to radiation during her pregnancy; Gillis, of Knoxville, was a radiologic technologist (computed tomography technologist); Phillips, of Clinton, was a radiologic technologist (computed tomography technologist); Raby, of Clinton, was a X-ray technologist; and Ridenour, of Andersonville, was a radiologic technologist (computed tomography technologist) who was allegedly exposed to radiation during her pregnancy.

MMC, a Covenant Health member, said it placed the highest priority on employee and public safety.

“We maintain an active and ongoing radiation quality and compliance program with specific procedures to monitor safety,” the hospital said in a statement after the suits were filed. “Based on the results of this program, it has been verified that we have met all safety standards for radiation exposure.”

You can access the opinions here.

More information will be added as it becomes available.

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