Krisinda Bowers, A Minor, by next friend, Tammy K. Bowers and Steve Bowers v. Stephen Hammond

Citations: 954 S.W.2d 752; 1997 Tenn. App. LEXIS 310Docket: 02A01-9601-CV-00011

Court: Court of Appeals of Tennessee; May 2, 1997; Tennessee; State Appellate Court

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Krisinda Bowers, a minor represented by her parents, appeals a trial court's summary judgment favoring Defendants Stephen Hammond, The Jackson Clinic Professional Association, and Jackson-Madison County General Hospital. The court dismissed her medical malpractice complaint, citing the three-year statute of repose under Tennessee's Medical Malpractice Act and a failure to comply with notice requirements for claims against governmental entities. Krisinda was born on March 18, 1982, suffering from hypoxia during birth, leading to severe brain damage. Her parents filed a lawsuit in November 1991, seeking $3.5 million in damages. The defendants argued that Krisinda's claim was barred due to the time limits imposed by the relevant statutes. On appeal, Krisinda contends that her minority status tolled the statute of limitations, referencing Tennessee Code Annotated section 28-1-106, which allows individuals under legal disability to commence actions after the disability is removed, provided they do so within the applicable time frame. The appeal examines the interplay between this tolling provision and the statutes cited by the defendants. The appellate court affirmed part of the trial court's ruling while reversing another part and remanding the case for further consideration.

Section 29-26-116 establishes a three-year statute of repose for medical malpractice actions, starting from the date of the negligent act or omission. However, if the defendant engages in fraudulent concealment, the action may be brought within one year after the injured party discovers the cause of action. The Defendants argue that Krisinda, despite being a minor, had only three years to file her action. This argument was dismissed by a prior court ruling in Adkins v. Martin, where the court found that the statute did not override the protections afforded to minors and mentally incompetent individuals under section 28-1-106. In Adkins, a minor plaintiff suffered permanent brain damage after surgery and filed suit more than three years later. The court ruled that enforcing the statute against mentally incompetent persons is fundamentally unfair, a view supported by statutes across all states. This long-standing legal policy in Tennessee protects the rights of minors and those of unsound mind, recognizing that prior to the Medical Malpractice Act, no limitations were imposed on their ability to pursue legal actions. As a result, the court affirmed that Krisinda's ongoing mental disability exempted her from the three-year limitation in section 29-26-116, aligning with previous judgments that upheld the rights of minors against harsh limitations.

In *Parlato v. Howe*, 470 F. Supp. 996 (E.D. Tenn. 1979), the court addressed the significant impact of the three-year statute of repose on minors without the legal disability statute, highlighting that while adults can act to protect their rights, minors, particularly those injured at a young age, lack the ability to do so. The court emphasized that if the statute were interpreted to eliminate the legal disability protections for minors, it would unjustly allow them to lose their claims due to others' neglect. The court asserted that Section 23-3415(a) was not intended to disrupt the legal disability statute and that the absence of explicit exemptions for minors does not imply legislative intent to remove their rights. The legal disability statute reflects Tennessee's longstanding policy to safeguard minors' potential claims. The court noted that arguments presented by the defendants, which referenced the plain language of Section 29-26-116 barring actions beyond three years, had been previously considered and rejected in *Adkins*. The defendants’ reliance on the "in no event" language was deemed unpersuasive, as the court had previously concluded that such an interpretation did not bar claims brought by minors.

The Defendants argue against an exception for minors in the Medical Malpractice Act based on the ten-year statute of repose in the Tennessee Products Liability Act, which explicitly includes a minor exception. They assert that if the legislature intended to include a similar exception in the Medical Malpractice Act, it would have explicitly stated so. However, the court's opinion in Adkins acknowledges the minor exception in the Products Liability Act and concludes that this exclusion supports the argument that minors are not intended to be bound by the Medical Malpractice Act's statute of limitations. The court references the Parlato decision, which similarly rejected the argument that the absence of a specific minor exemption in medical malpractice legislation indicates legislative intent to include minors under restrictive statutes of limitations. Instead, the exclusion suggests a general legislative policy favoring minors, indicating that if the legislature intended to restrict minors in this context, it would have clearly articulated that intent. Furthermore, the Defendants claim that creating an exception for minors undermines the legislative intent behind the three-year statute of repose in section 29-26-116, which was established during a medical malpractice insurance crisis, as discussed in Harrison v. Schrader.

The legislature recognized a potential threat to both the medical profession and public welfare due to escalating liability costs, which could lead to higher healthcare expenses, reduced physician availability, and a decline in healthcare quality due to defensive medicine practices. To address these concerns, the legislature established a three-year limit on bringing medical malpractice actions to enhance the certainty of liability cost estimates. The Defendants argue that allowing an exception for minors would undermine this intent by extending the time frame for filing malpractice claims significantly. However, the court's previous ruling in Adkins indicated that excluding minors from the statute would not counteract the legislative purpose behind T.C.A. 29-26-116. The Defendants also contend that recent Tennessee case law distinguishes between statutes of limitations and statutes of repose, categorizing section 29-26-116 as a statute of repose. The Tennessee Supreme Court noted that this section imposes a three-year limit on malpractice actions, which is separate from the one-year statute of limitations and can bar claims before they accrue. Statutes of repose extinguish both the right and remedy, while statutes of limitation only extinguish the remedy.

The court reaffirms its previous ruling in Adkins, emphasizing that the distinction between statutes of limitations and statutes of repose does not necessitate a change in its earlier position. In Adkins, it was established that the three-year statute of limitations in section 29-26-116(a)(3) serves as an absolute cap for medical malpractice claims, independent of the cause of action's discovery date. The court also referenced Braden v. Yoder, which recognized a three-year ceiling imposed by the legislature on existing limitation periods. Despite acknowledging the differences between the one-year and three-year limitations under the Medical Malpractice Act, the court maintained that the three-year period could be tolled due to the plaintiff's legal disability.

The Defendants argued that a subsequent ruling in Pigg v. Barge, Waggoner, Sumner, Cannon, which upheld a statute of repose barring a minor's claim outside the established limitations period, conflicts with Adkins. However, the court clarified that Pigg is consistent with its earlier decisions, as the plaintiff's claim in Pigg never accrued due to the timing of the injury relative to the substantial completion of the improvement, thus no cause of action existed to be preserved under section 28-1-106. The Pigg decision distinguished itself from Braden and Parlato, where no statute of repose had extinguished liability at the time of injury. The court noted that the causes of action in Adkins, Braden, and Parlato arose before the Medical Malpractice Act was enacted, indicating that the legislature cannot retroactively eliminate existing causes of action.

The trial court's summary judgment favoring the Defendants under the Medical Malpractice Act's three-year statute of repose was found to be erroneous. Despite the Defendants' arguments for revisiting the court's ruling in Adkins, the court remained steadfast in its precedent, emphasizing that the legislature has not established any limitations on tolling effects for permanent or long-term incapacity, such as mental disability. The court noted that it is the legislature's role to address any issues arising from its judicial interpretations, as evidenced by the lack of legislative action to amend the relevant statutes since the Adkins decision.

Regarding the dismissal of the Hospital, the court upheld the trial court's order based on Krisinda's failure to satisfy the notice requirements outlined in the Tennessee Governmental Tort Liability Act (sections 29-20-301 and 29-20-302). These sections mandate that individuals with claims against governmental entities must provide written notice within 120 days of the injury occurrence, which is a prerequisite for recovery. The court recognized that failure to comply with these notice provisions constitutes a complete defense against liability for governmental entities. Krisinda's argument, asserting that these notice provisions do not apply to minors under T.C.A. 29-20-104, was noted; however, the court maintained the existing requirements as applicable.

Sections 29-20-104(b) and 28-1-106 extend the timeframe for minors to file suit under the Governmental Tort Liability Act, but minors are still subject to the Act’s notice requirements, as established in Schorn v. Oak Ridge Schools. The court referenced Robinson v. City of Memphis, which affirmed that notice is a mandatory prerequisite for filing suit, with no exceptions for minors. The liability of a governmental entity, such as a city, is strictly governed by statutory provisions, which require all claimants, including minors, to provide notice.

In analyzing the case at hand, the court concluded that the notice given did not meet statutory requirements, following the precedent set in Tucker v. Metropolitan Government. In Tucker, a plaintiff claimed that the hospital's records provided sufficient notice of a malpractice incident, but the court determined that the chief administrative officer of the hospital must be specifically notified. In the current case, there was no evidence that the chief administrative officer of the hospital was aware of the information in Krisinda's medical records, which mentioned potential perinatal asphyxia as a cause of seizures. Thus, the court rejected the argument that the hospital had adequate notice.

The trial court's summary judgment in favor of the Hospital was affirmed. However, the judgment against Dr. Hammond and The Jackson Clinic was reversed, and the case was remanded for further proceedings. Costs on appeal are assigned to Dr. Hammond and The Jackson Clinic, with execution permitted if necessary.