Eddie C. Pratcher, Jr. v. Methodist Healthcare Memphis Hospitals, 2013 Tenn. LEXIS 594

Sandra Y. Pratcher died after anesthesia complications on Dec. 4, 1999 during a cesarean section at Methodist Hospital-Central.
Plaintiff Eddie Pratcher, as surviving spouse and next friend of three minor children, filed suit on Dec. 1, 2000 against Methodist Hospital, Dr. Rojas, Medical Anesthesia Group, Wadlington, and Consultants in Anesthesia, Inc. for medical negligence and vicarious liability.
Defendant Consultants in Anesthesia, Inc. contracted to provide anesthesia services and relied on nurse anesthetist Wadlington; Dr. Chauhan, president/owner of Consultant, was on call but did not come to the hospital.
Dr. Rojas and Medical Anesthesia Group were involved; Plaintiff later asserted vicarious liability against Consultants for Chauhan and Wadlington’s alleged negligence.
Defendant did not raise the Tennessee health care liability statute of repose (3-year limit) as a defense during multiple amendments and the trial, which occurred in 2006; the statute ran in Dec. 2002 for claims related to Chauhan’s acts.
After a trial resulting in a verdict for all defendants, the trial court granted a new trial; the defendant sought to amend its answer to raise the statute of repose in 2009, arguing waiver and Rule 8.03 applicability.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Is the statute of repose an affirmative defense waivable under Rule 8.03?	Jones Pratcher argues repose is waivable if not timely raised.	Consultants argues repose is an affirmative defense and not waived by late pleading or trial timing.	Yes; repose is an affirmative defense and is waived if not timely raised.
Did the trial court abuse its discretion by denying belatedly raising the statute of repose?	Waiver limits defendant’s ability to rely on repose after trial.	Delay was understandable given rule changes and evolving case law; late amendment should be allowed for meritorious defense.	No abuse; the trial court properly denied amendment due to waiver and undue delay.

Bruce v. Hamilton, 894 S.W.2d 274 (Tenn.Ct.App.1993) (statute of repose extinguishes the right and divests court of subject matter jurisdiction)
Cronin v. Howe, 906 S.W.2d 910 (Tenn.1995) (savings statute interaction with statute of repose; not divesting jurisdiction)
George v. Building Materials Corp. of Am., 44 S.W.3d 481 (Tenn.2001) (affirmative defenses must be pleaded; discretion on amendments; waivers evaluated)
Calaway ex rel. Calaway v. Schucker, 193 S.W.3d 509 (Tenn.2005) (tolls and defense timing considerations for repose in minority context)
Johnson v. LeBonheur Children’s Med. Ctr., 74 S.W.3d 338 (Tenn.2002) (principal may not be vicariously liable for agent’s acts when action against agent is extinguished by operation of law)
Shelburne v. Frontier Health, 126 S.W.3d 838 (Tenn.2003) (reaffirms vicarious liability principles under repose context)
In re Estate of Smallman, 398 S.W.3d 134 (Tenn.2013) (waiver implications for standing and procedural defenses in post-trial context)