Three-Year Time Limit to File Medical Malpractice Lawsuit No Longer Tolled for Minor Plaintiffs

On Dec. 9, 2005, the Tennessee Supreme Court ruled in Kaitlyn Calaway ex rel. Kathleen Calaway v. Jodi Schucker, M.D. that a "plaintiff's minority does not toll Tennessee's [three year] medical malpractice statute of repose." That statute, found in Tennessee Code section 29-26-116(a)(3), states that "in no event shall any [medical malpractice] action be brought more than three (3) years after the date on which the negligent act or omission occurred."

Tennessee's disability statute found in Tennessee Code section 28-1-106 permits individuals under the age of 18 to bring a medical malpractice lawsuit within one year after they reach 18 years of age. The Schucker case presented the Court with its first direct opportunity to address whether Tennessee's legal disability statute supercedes the State's medical malpractice statute of repose.

Calaway v. Schucker involved a medical malpractice action asserted by Kathleen Calaway, on behalf of her minor daughter, against Jodi Schucker, M.D. The plaintiff alleged that, on Feb. 20, 1996, Dr. Schucker performed negligently in the course of the birth and delivery of the minor plaintiff, Kaitlyn Calaway, resulting in severe and permanent injury to Kaitlyn. The filing period for the plaintiff's action would normally run from the date that the alleged negligent act occurred, Feb. 20, 1996. However, the plaintiff initiated her action against Dr. Schucker in the United States District Court for the Western District of Tennessee on Sept. 13, 2002. Dr. Schucker subsequently moved to dismiss the action on the grounds that the statute of repose eliminated the plaintiff's right to assert the action because the complaint was not filed within three years of the alleged negligent act. The district court denied Dr. Schucker's motion for summary judgment on this ground, but subsequently certified the question to the Tennessee Supreme Court for clarification of Tennessee law on this issue.

The Tennessee Supreme Court found that the clear language of the statute of repose indicated the Tennessee Legislature's intent that the three year statute of repose not be suspended or delayed while a person is under the age of 18. As a result of the Court's ruling, a person cannot assert a medical malpractice action after three years from the date of the alleged negligent act, irrespective of whether the act occurred while the plaintiff was a minor. Therefore, if an injury allegedly caused by a healthcare provider occurs more than three years prior to a minor reaching 18 years of age and a malpractice action is not initiated by a parent or guardian within the three years, the plaintiff will lose the right to file a medical malpractice lawsuit.

The Court recognized the competing policy interests involved: first, protecting potential causes of action by minors during the period of their minority and second, averting a healthcare crisis pertaining to the rising cost of medical malpractice insurance by limiting the time within which plaintiffs can bring medical malpractice lawsuits. Although the Court acknowledged these policy interests, its ruling was based strictly on its interpretation of the terms used by the Legislature when it composed the medical malpractice statute of repose. The Court left the resolution of the competing policy interests to the Legislature.

In its opinion, the Court expressly overruled prior holdings from the Tennessee Courts of Appeal that recognized an implied exception to the medical malpractice statute of repose for minors and those who may be mentally incompetent. Prior to the Tennessee Supreme Court's opinion, all of the Tennessee lower court cases, dating back 25 years, had interpreted the two statutes to find that the medical malpractice statute of repose was indeed tolled, or suspended, while a plaintiff was under the age of 18. Consequently, for over 25 years, the Legislature has had the opportunity to challenge Tennessee courts' interpretation, but has declined to do so.

After the Court's ruling in Schucker, healthcare providers and their insurers can be assured that providers who treat minors will not have to wait more than three years before knowing for certain if a medical malpractice action will be pursued against them. Potential plaintiffs and plaintiffs' counsel who were relying on the prior lower courts' opinions to file a medical malpractice action beyond the three-year limitation period are understandably disheartened. It will be interesting to see, however, if the Tennessee Legislature will now amend either the legal disability statute or the medical malpractice statute of repose in light of the Court's recent opinion.