Calaway Ex Rel. Calaway v. Schucker

rеsidence, and she had defendant’s allowing key to the home she used warrant. to execute the search

officers information corrob-

Moreover, also was knowl- Investigator McCreight’s

orated drug-related prior of the defendant’s

edge sum, that the we conclude

conviction. cause under probable

affidavit established analysis in Jacumin. two-prong

CONCLUSION applica- the record and reviewing

After (1) that the trial authority, we hold

ble Appeals of Criminal

court and Court interlocutory appeal granted the

properly Rules to Rule 9 of the Tennessee

pursuant al- Procedure and Appellate information used to obtain

though the resi- for the defendant’s

search warrant infor- provided by a “citizen

dence was

mant,” probable cause under it established Jacumin. two-prong analysis is, therefore, on the

judgment affirmed appeal out. The costs of the

grounds set defendant,

are taxed to the Delawrence

Williams, surety, execu- and his for which necessary. if

tion shall issue

Kaitlyn ex rel. CALAWAY

Kathleen CALAWAY SCHUCKER, M.D.

Jodi Tennessee,

Supreme Court

at Nashville.

June 2005 Session.

Dec. 2005. Rehearing

As Amended on Grant 21, 2006.

in Part Feb. Johnson, III, Timothy

Carroll C. Tennessee, Holton, ap- for the Memphis, Kathleen Kaitlyn Calaway, ex rel. pellant, Calaway. Jr., Baker, David Shaw Sad-

Darrell E. Whitt, low, Memphis, Ten- and Deborah Schucker, nessee, appellee, Jodi for the M.D. Phillips, Marty R.

Craig P. Sanders Curiae, Tennessee, Jackson, for Amicus Association. Tennessee Medical Brentwood, Tennesseе, ‍‌‌‌‌​​‌‌‌‌​​‌‌​‌​​‌​‌‌​​‌​‌​‌‌‌​​​​​‌​‌​‌​​​‌‌​‌‍for Day, A. John Curiae, Lawyers Trial Tennessee Amicus Association. ute,” Annotated

OPINION Tennessee Code section (2000), plaintiffs minority 28-1-106 BARKER, C.J., WILLIAM M. delivered tolls the court, in which opinion FRANK claims set forth DROWOTA, III, F. and ADOLPHO A. Tennessee Code Annotated section 29-26- BIRCH, JR., joined. JJ. M. JANICE (2000). 116(a)(3) The action from which HOLDER, J., dissenting opinion, filed questions these Rule 23 certified arose was ANDERSON, J„ joined. which E. RILEY filed the United States District Court accepted Pursuant to Rule four for the District of Tennessee Western questions certified of law the United Calaway, Kathleen on behalf of her minor States District Court for the Western Dis- Kaitlyn against daughter, Calaway, Jodi trict of Tennessee. The third certified Schucker, M.D., 13, on 2002. September question question is the сentral of the four 20, plaintiff alleges February The that on dispositive and is of the others: Is the performed negligently the defendant three-year statute of for medical delivery in the course of the birth and malpractice in Tennessee Code Annotated plaintiff, Kaitlyn Calaway, the minor re- 29-26-116, section which contains no ex- injury in sulting permanent severe and to minority, for tolled ception during plain- Kaitlyn. plaintiff previous The had filed minority? tiffs Our answer is in negligence action in 1997 the Circuit statute of for medical Tennessee, Shelby County, Court for during actions is not tolled Shelby plaintiff against behalf of the minor plaintiffs minority. Giving effect to the County Corporation, Health Care d/b/a plаin language finding the statute Center, Regional Medical and the Univer- exception minority among no for the two sity Group of Tennessee Medical the—but express exceptions cognizant in it—and present controversy, defendant in the Dr. our not interpreters, constitutional role as Schucker, joined was not to that case. makers, plaintiffs of the law—we hold that parties to the earlier lawsuit settled in in minority by their are bound the three- signed covering and a release was year repose. medical statute of controversy the defendants to that but However, in hardship order to avoid undue specifically reserving causes potential plaintiffs justly who have re- against of action Dr. Schucker. upon lied federal court and lower court August On the federal district precedents erroneously stating oppo- in present granted part court in the case rule, today site the new rule we announce part motion and denied defendant’s Therefore, only. apply prospectively is to summary judgment. partially deny- In for for cases commenced on or before Decem- motion, ing the court relied the defendant’s 9, 2005, ber we hold Penley on dicta in our decision v. Honda minority tolls the medical stat- (Tenn.2000). Motor 31 S.W.3d 181 repose. ute of For cases commenced after strong disap- Penley, expressed we our 9, 2005, plain- hold that the December we proval reasoning underlying tiffs does not toll the medical Appeals’ decision Tennessee Court Hammond, Bowers v.

(Tenn.Ct.App.1997); yet permitted BACKGROUND FACTUAL holding stand its central that Tennessee’s questions does At the core of certified medical whether, operation by supersede suspend us in this case is not presented to statute, disability Tennessee disability legal stat- “legal virtue of Tennessee’s designate 28-1-106, order did The certification Annotated Section Code We also minority by as the movant. period party for either the limitations tolls Ten- bring a lawsuit motions of the plaintiff respective allowing granted the majority. year of his оr her the Ten- the first within Medical Association nessee Dr. basis, court denied the federal On this to file Lawyers’ Association Trial nessee summary judgment motion Schucker’s in this case. amicus curiae briefs than for claims other plaintiff’s on all the certi- questions were following four expenses. medical by accepted court and fied the federal concerning plaintiff’s the minor But this Court: claims, court the federal medical-expense person- have a minor child Does a motion for sum- granted the defendant’s arising expenses al claim for Relying unreport- on an mary judgment. by the fault of injury caused District opinion of the United States ed child’s claim of the another when thе District of Tennes- Court for the Western expenses for such parent Shutt, 00-1302, 2002 see in McBride v. No. re- of limitation or barred (W.D.Tenn. 2, 2002), July WL pose? Dudley Phillips, on v. which in turn relied (2) injured minor child who is Does a 648, (1966), the Tenn. 405 S.W.2d 468 claim for medical ex- personal have a for an action court concluded that because majori- accruing age after the of penses belongs to expenses a minor’s medical both ty? parents separate and is the minor’s (3) repose Is the statute inju- cause of action for distinct in Tennessee malpractice child, for medical action was ries to the this cause of 29-26-116, Annotated section limitations, Ten- Code by barred the statute of for minori- еxception contains no 29-26- which nessee Code Annotated section minority? 116(a)(1), ty, during plaintiffs tolled a beyond it was filed since limitations one-year period. statute’s denied physician defendant Is of the law wherein equal protection that the federal plaintiff requested The con- exception to the statute judgment be- modify court or amend its Code Annotated cause, view, tained in Tennessee in her it left unresolved the minority for is created plaintiff the minor could section 29-26-116 issue of whether cases, while no for pursue against an action the defendant medical liabil- exception product she exists expenses medical incurred similar majority. hаd oc- cases? ity reached We have never and construction directly. question to answer that casion for question, the third Starting with defendant, the lack of a defin- given The follow, that the we answer the reasons from this Court on itive statement law minority does not toll Tennes- plaintiffs medical the issue of whether Tennessee’s repose, malpractice statute see’s medical by is tolled section 29-26- Annotated Tennessee Code minority, clarifica- plaintiff’s also seeks 116(a)(3). However, to undue hard- avoid our state’s law. tion of plaintiffs who have relied ship potential rule, the rule we new upon the Bowers joint motion in feder- parties filed ap- today prospective to have announce to this certify questions al court to law Therefore, cases com- for plication only. court issued a certifi- Court. The federal 9, 2005, we December 24, 2004, menced on or before on November cation order minority tolls the 1, 2004. hold that the was filed with us December interpretation. Mooney a forced repose. medical statute without (Tenn.2000). 9, Sneed, For cases commenced after December minority we hold that the not toll the medical stat- does ANALYSIS our repose. Consequently, answer ute presents This case us with our first question is that for cases com- the first opportunity question direct to address the on or menced before December minority of Tennes provisions whether the for medical personal minor child’s claims statute, legal disability see’s Tennessee expenses arising malprac- from a medical 28-1-106, toll the Code Annotated section injury by the statute of tice are barred repose, Ten De- repose; for cases commenced after nessee Code Annotated Section 29-26- 9, 2005, personal a minor child’s cember 116(a)(3). contends, plaintiff on the expenses arising from a claims medical by lower basis of several decisions issued by malpractice injury are barred court, state courts and one federal district repose. to the sеcond the statute of As three-yeár tolls the question, per- that if the child’s answer largely argues, The defendant by claims are barred the statute of sonal we made in two on the basis statements repose, brought by that action cannot be cases, Penley recent v. Honda Motor reaching majority. Finally, upon the child (Tenn.2000), and Mills v. question, as to the fourth we hold that the (Tenn.2005), that Wong, 155 protection rights are not equal defendant’s is not tolled the statute of application of violated either retroactive plaintiffs minority. by prospective-only the old rule to her or state, The two statutes at issue here similarly rule to application of the new respeсtively, ‍‌‌‌‌​​‌‌‌‌​​‌‌​‌​​‌​‌‌​​‌​‌​‌‌‌​​​​​‌​‌​‌​​​‌‌​‌‍as follows: situated defendants. section 28- Tennessee Code Annotated

STANDARD OF REVIEW 1-106: of this Court’s The touchstone an person If entitled to commence the in to as statutory interpretation role “is is, at the time the cause of action action give legislative certain and effect to the accrued, age eigh- of either within the unduly restricting or ex intent without (18) mind, years,, or of unsound teen coverage beyond its panding a statute’s person’s represen- or such person, such Aramark scope.” Houghton intended v. be, may privies, and as the case tatives (Tenn. Res., Inc., 676, Educ. 90 678 S.W.3d action, after the re- may commence 2002) State, (quoting v. 908 S.W.2d Owens disability, within the time moval of such (Tenn.1995)); 923, v. 926 see also State of particular for the cause of limitation (Tenn. 195, Flemming, 19 197 (3) action, years, three unless it exceeds Butler, 359, 2000); 362 980 S.W.2d State (3) years in that case within three and (Tenn.1998). “from determine intent We disability. from the removal of such ordinary meaning of the the natural and 29- Annotated section Tennessee Code context of statutory language within the 26-116: any forced or the entire statute without (a)(1) in mal- The statute of limitations that would extend or subtle construction (1) year actions shall be one as practice 19 meaning,” Flemming, limit the statute’s §in 28-3-104. set forth Butler, (citing at 197 980 S.W.2d (2) alleged injury In is not 362), the event language if of a statute is (1) year peri- one clear, meaning discovered within such aрply plain must its we od, one thus rather to define substantive period of limitation shall be is (1) remedy. discovery. of such or year rights modify the date than to alter (3) any In no action be event shall such Bergen, North Rosenberg v. Town of (3) after brought years than three more (1972) 662, (empha- 293 A.2d N.J. on act or negligent the date which repose, how- original). A statute sis except there is omission occurred where ever, extinguish the cause always does not part fraudulent on the concealment action before it accrues: ‘“Where defendant, in action which case the [repose] period, injury occurs within (1) year within shall be commenced one ... action and a claimant commences his discovery after that the cause of action an [repose] period passed, has after the (4) herein exists. The time limitation action accrues but is barred. Where shall apply set forth cases where [repose] period, injury occurs outside the object foreign negligently has been left ac- cause of action ever no substantive body, in a case the patient’s which crues, and a claimant’s actions are likewise action shall be commenced within one ” (quot- Penley, barred.’ 31 S.W.3d at 184 injury year alleged wrongful Tire ing v. Firestone & Rubber Gillam or should have been act discovered Neb. 489 N.W.2d discovered. (1992)). short, In “[statutes begin analysis by noting our ... operate differently statutes [from] limita the distinction between statutes of limitation[s]” because statutes tions and A statute of statutes “an time limit within impose absolute normally governs limitations time with Penley, brought.” action must be which legal proceedings in which com must be added). (emphasis at 184 A menced after cause of action accrues. hand, repose, other limits distinction between stat- light may within the time action be repose, note utes of limitations and is brought unrelated to the accrual of consistently has characterized this Court cause action. Jones v. Methodist Annotated section 29-26- Tennessee Code Healthcare, (Tenn.Ct. 116(a)(3) early repose. a As as statute App.2001). Schradеr, 1978, in v. 569 as Harrison (Tenn.1978), first en- 824 our S.W.2d A further distinction is that statute, it we described counter with this repose statutes are substantive rather three-year upon the “an absolute limit procedural. than are as repose “Statutes actions, with within which extinguish right time substantive and both the be [express] exceptions, could remedy and the while of limita two statutes limit or procedural, extinguishing only brought” and as “an outer tions are also Thus, remedy.” existing repose ceiling upon Id. a statute of superimposed In typically Cronin [of limitations].” statute (Tenn.1995), Howe, 910, 913 we 906 S.W.2d effect, action; not bar a its does cause “places that the an absolute stated statute rather, is to what other- prevent might within three-year upon limit time a ever wise be cause of action from brought.” can actions which be literally arising.... injured party Mills, in year, And earlier this has no of action. The harm that cause repose that the statute of at we stated inju- has damnum absque been done is an place intent legislative a to “expresses allows wrong ria —a which the law beyond no three-year bar which no redress. The function of the statute absolute 516 statute, malpractice right may legal disability of action reference the respect with to minors.

survive.” approach statutory Our to con recognize Legislature may, We that the struction lan begins with the statute’s instances, in somе allow to com guage, and if it can end there —with our despite mence lawsuit the absolute na of a finding meaning Legisla clear of the applicable ture of statutes For stop. ture’s intent —then we must “Our example, clearly exception we find a stated purpose begins search for a statute’s with in the medical malpractice statute of re the words of the statute itself. If the pose for fraudulent concealment. See unambiguous, only statute is we need en 29-26-116(a)(3). § Ann. Tenn.Code written[,]” force the with no statute as argues amicus here that the le scheme, statutory recourse to the broader statute, gal disability An Tennessee Code legislative history, baсkground, historical 28-1-106, by notated section was intended or the Legisla other external sources of Legislature exception to serve as an purpose. Conservatorship ture’s In re the medical statute of repose, Clayton, (Tenn.Ct.App. citing support string of cases from 1995). The statute of its itself — lower state courts and one federal court. words no event shall such action “[i]n See, Howe, e.g., Parlato v. F.Supp. brought years be more than three (E.D.Tenn.1979); Yoder, negligent Braden v. act or the date in (Tenn.Ct.App.1979), expresses S.W.2d 896 v. omission clear Bowers occurred” — Hammond, Legislature absolutely tent limit (Tenn.Ct.App. 954 S.W.2d 752 years time within which mal 1997). three practice brought.1 actions can Harri be respectfully disagree plain- with the son, 824; Mills, argument. tiffs amicus’ As we stat- have at 920. above, ed the medical Penley, applied statutory-con- In an imposes absolute expressio struction canon unius est exclu- actions, bar on such with exception (“to thing mention one is to sio alterius exemptions the statute itself. others”) finding exclude to refrain from Penley, we stated that “when the General implied incompetents for mental exception Assembly exceptions ap- has desired that liability stat- products would toll the ply repose, excep- to a ... Annotated repose, ute of Tennessee Code language tion is either found with the will not rewrite “[W]e section 29-28-103. itself, part the statute another categories to insert other this statute specifically referencing particular code Assembly. If the intended the General repose.” Penley, statute of 31 S.W.3d at Assembly intended for mental in- General requirement 184-85. We find neither sat- ten-year capacity to toll the statute of re- ” minority. isfied in this for medi- case pose, easily it could have done so.... malpractice repose cal statute of contains Penley, 31 at 185-86. The same express exception no for minors. Neither analysis present to the case: we applies Code, medical part including other of the will not rewritе the does 116(a)(3) discovery argues placement merely the and dissent the of the limits rule 1. The that repose imme- supercede legal disability medical statute of does not the statute. diately following dissent, the codification of the dis- phrase the we construe this Unlike covery Legislature's rule shows the intent that just "in event” to mean that —in no event. no phrase the "in no event” in section 29-26- the plaintiffs minority does not toll to an the repose exception of include statute appears it from the statu- repose. for minors when of We malpractice statute medical that the not tory language Legislature did of the clear only so not on the basis do exception. intend such an our the statute and consistent language of malprac- of the medical did, characterizations in it is true Pen- Although that we three- acquiesce holding by repose in the tice as an absolute ley, Bowers statute weight of “limiting] precedential the [the also stress year to such claims. We bar holding to its that opinion explicit ] Bowers the dis- holding Penley legal our in three-year the statute statute, ability Code Annotated Tennessee minority of repose during is tolled the 28-1-106, only to toll stat- section serves plaintiff,” the 31 S.W.3d at we chose limitations re- utes of and not statutes of the not to Bowers because issue overrule to only applicаble is pose. section “[T]his case, in that squarely presented as was of limita- running a statute extend the Moreover, it is the reli- here. tions, interpret legal and we will not the misplaced ance on statement be- this is give beyond to it effect disability statute clearly acquiescence cause our in dic- was Penley, import the fair its terms.” only Not the to ta. did two cases come Further, the “[w]here at 186. differing Penley declining to conclusions— Assembly some specific General enacts incompetents find an for exemption mental an part of overall period limitations as products liability statute of Tennessee’s scheme, limitations statutory specific these repose, Bowers implicitly finding and provisions general will over more apply the implied exemption for minors to medi- code.” Id. at 187 found elsewhere cal re- —the Sup- Mach. (citing Dobbins Terrazzo & spective upon bases which the two hold- (Tenn.1972)). ply as ings entirely rested were different well. argument legal accept To fact, expressed disagree- our total mal- disability trumps statute the medical employed by ment with reasoning “would be to practice statute holding. Bowers court to reach its very purposes defeat the behind the enact- with disagree We the rationale used cannot, un- ment” latter. Id. We implied court to excep- Bowеrs find tions judicial interpretation mental ‍‌‌‌‌​​‌‌‌‌​​‌‌​‌​​‌​‌‌​​‌​‌​‌‌‌​​​​​‌​‌​‌​​​‌‌​‌‍incom- guise and der the petence to the medical mal- statute, in effect rewrite the law and practice statute Bowers preferences policy thus our own substitute holding plain stark contrast to Legislature’s.2 for the statute, language of the which admits of no than tolling other for fraudulent con- emphasize holding that our We cealment, holding recog- and the fails attempt apply here is an to ascertain policies underlying nize the passing Legislature’s intent itself. repose,

Id., 188. meaning of analysis plain our relies on the employed by the As the terms General expressly now overrule compose statute. sеmbly Braden and hold that “Where Bowers and courts However, neglect it is minority tolling through the of others. 2. The asserts that dissent this to rewrite the statute appropriate young of a role of Court because the claim remedy any perceived in to unfairness. minor could be eliminated before minor order argument to meaningful opportunity is best addressed has a The dissent’s assert Legislature. claim his or her cause of action or lose 518 the language of the statute ‘is clear and scrutiny basis applies. Mass. Bd. Ret.

unambiguous, then this Court will give Murgia, 307, ef- v. 312, 427 U.S. 96 S.Ct. fect 2562, (1976). to the statute according to plain Here, 49 L.Ed.2d 520 ” meaning of its terms.’ Penley, Legislature 31 could have had number of Jordon, (quoting 185 Lаvin v. rational bases for the differential treat- 362, (Tenn.2000)). ment of holding minority tolling Our here the area of comports with our approach malpractice, including to interpret- per- ing the medical ceived crisis in statute of re- insur- pose ance. products Mills and the liability in Penley. Similarly, respect with to the prospective-only application of the rule we “In civil retrospective cases today, equal announce protection issue

application of a decision overruling an ear by is answered Great Railway Northern lier ordinarily decision only is denied if Co. v. Sunburst Oil and Refining such an application would work a hardship 358, 145, (1932). U.S. 53 S.Ct. 77 L.Ed. 360 upon those who have justifiably relied Writing Court, for the Justice Cardozo upon precedent.” the old Marshall v. held that supreme state courts are not Marshall, (Tenn. 213, constrained from prospectively applying 1984). In order to avoid hardship undue interpretations new state statutes potential plaintiffs who upon have relied “anything contained the Constitution of rule, the Bowers the new rule we announce 366, the United States.” Id. at 53 S.Ct. today is to have prospective application 145. Specifically, he wrote: only. Therefore, for cases commenced on think the Federal Constitution 9, or has before December we hold that subject no voice upon the prospective [of minority tolls the medical application], A in defining state lim- For cases its of precedent adherence to may make 9, 2005, commenced after December we a choice for itself principle between the hold that the minority does not operation forward and that of relation toll the medical malpractice statute of re It may say backward. that decisions of pose. court, highest overruled, its though later Finally, reject the defendant’s are law none the less for intermediate equal protection claims. We have consis transactions.... has [N]ever doubt tently held that the equal protection state been expressed that it may so treat guarantee is co-extensive equal with the them if it pleases, injustice whenever protection provisions of the Fifth and hardship thereby will be averted. Fourteenth Amendments of the U.S. Con Id. at Supreme S.Ct. 145. The See, stitution. e.g., Tenn. Sys. Small Sch. expressly Court has not overruled Sun- McWherter, (Tenn. burst, and holding its continues be fol- 1993). See, White, lowed. e.g., Fiore v. 149 F.3d (3d Cir.1998) The defendant’s argument that 224-27 (noting “the Su- equal protection her rights under the preme Ten longstanding position Court’s (retro nessee Constitution are violated ‘the federal upon constitution has no voice spective) application of the subject’ Bowers rule to retroactivity” (quoting Sun- burst) her has no merit. It is elementary that and stating [Supreme] that “the where neither rights fundamental nor sus Court has never tied application of this pect issue, [i.e., classifications are at rational principle retroactivity newly of a an- liability and con- product exists in Equal of tion law] nounced rule state the Clause”). cases? struction Protection adopt the Sunburst hold- expressly Answer: No. equal ing. Consequently, the defendant’s to be taxed ‍‌‌‌‌​​‌‌‌‌​​‌‌​‌​​‌​‌‌​​‌​‌​‌‌‌​​​​​‌​‌​‌​​​‌‌​‌‍this case are The costs of claim must fail. protection Calaway, rel. Kathleen Kaitlyn ex against Calaway. CONCLUSION analysis, foregoing of the On the basis J., HOLDER, a filed M. JANICE questions pre- four

we answer the certified RILEY dissenting which E. opinion, sented us as follows: ANDERSON, J., joined. a Question Does minor child have 1: J., HOLDER, with whom JANICE M. expenses for aris- personal claim medical ANDERSON, J., joins, RILEY E. injury by fault of ing an caused dissenting. par- of the another when claim child’s my view express I separately write for medical is expenses ent such barred minority provisions of Tennessee’s limitation repose? a statute of or statute, Tennessee Code legal disability Answer: No. (2000), toll the 28-1-106 Annotated section Question 2: Does a minor who is child of statute three-year medical injured personal claim for medical have provided in Tennessee Code Anno- accruing age majori- expenses of (2000). 29-26-116(a)(3) tated section ty? for legal disability providing A statute Answer: If the minor сhild’s personal minority in Tennessee tolling was enacted operation claim is barred of Tennes- (1858); § 2757 in 1858. See Tenn.Code 29-26-116, see Statute Annotated section 394, 77 Crutchfield, v. 111 Term. Jackson once then claim continues to be barred (1903). disability legal S.W. majority. the minor reaches provides statute Question Is the 3: statute an person entitled to commence [i]f for medical Tennes- is, the time the cause action action 29-26-116, § see Code Annotated accrued, age eigh- under the either exception minority, contains no for tolled (18) mind, unsound years, teen during minority? a Plaintiffs represen- person’s or such person, such be, may on or case privies, Answer: For cases tatives and as the commenced action, after the re- may before December commence minority disability, stat- within the time tolls moval such particular ute of For cases commenced after cause repose. limitation 9, 2005, action, minority years, it three unless exceeds December (3) years within three stat- and in that case does not toll disability. from the of such ute of removal (2000). § This Ann. 28-1-106 Question 4: Is Defendant Tenn.Code physician long-stand- represents Tennessee’s protection wherein equal denied law potential causes ing policy protecting to the con- exception minority. during § 29- of minors their in Tennessee Annotated action tained Codе Hammond, 752, 754 26-116 created for in medical Bowers cases, other excep- (Tenn.Ct.App.1997), overruled while no similar 520

grounds by Penley Co., v. Honda Motor practice 31 cause of action accrues and the (Tenn.2000). S.W.3d 181 statute of limitations commences when the patient discovers should have discover The medical statute was en ed the resulting injury through the exer 1975, acted in long minority tolling after cise of diligence. reasonable care and due was established. See Tenn.Code Ann. “ The discovery rule (1975). thus ‘extended § [the] 23-3415 Tennessee Code Anno period during which 26—116(a)(3) physician a could (2000) be tated section pro 29— ” subject potential liability.’ vides Parlato v. Howe, (E.D.Tenn. 996, F.Supp. 470 998 no event [i]n shall such action be 1979) Schrader, (quoting Harrison v. 569 (3) brought years more than three (Tenn.1978)). 822, S.W.2d 826 The discov the date on which the negligent act or ery rule reflects our policy against state’s omission occurred except where there is requiring a lawsuit to be filed when cir fraudulent concealment on the part of beyond cumstances injured the party’s defendant, in which case the action prevent control party from bringing shall be year commenced within one Teeters, suit. 518 S.W.2d at 515. after discovery that the cause of action exists. Shortly after this adopted Court the dis- rule, covery plain language Assembly passed The General of the medical mal рractice Malpractice Medical does not Claims Act of pre clude 1975. This act tolling. designed was defendant con confront a tends, however, perceived the phrase no “medical “[i]n insurance Howe, event” indicates country. that the General crisis” this Assem Cronin v. bly 910, (Tenn.1995). intended the 906 statute of S.W.2d 913 re Due to pose to complete alleged serve as a beyond bar increase number claims, no medical companies cause of ac insurance were reluc- tion can statute, exist. In tant to write construing malpractice policies, a give word, premiums must effect to every phrase, policies available clause, Cohen, Harrison, and sentence. rose astronomically. Cohen v. 937 569 823, (Tenn.1996). We, Moreover, S.W.2d at 826. there a howev was er, should refrain belief that lifting required by “safe estimates single ac- word or clause tuarial uncertainty, aggravated by from a statute and constru the ex- ing it tended period during alone without physician reference to the re which a maining subject could language potential the statute. be liability, v. con- Neff (Tenn.1986); Cherokee Ins. tributed to the increase in medical insur- ance costs.” Id. Langsdon, Although discovery Lof tin Rather, rule (Tenn.Ct.App.1991). specifically was included in the Medi- Act, meaning Malpractice cal legislature statute’s is to be determined also whole, “from act included a purpose taken as a viewing the legislation in light general of the medical purpose.” its statute of re- pose Hardy, Pearson v. was to reduce the effect of the discov- ery rule. (Tenn.Ct.App.1992). To make this deter mination, background review The medical statute of re-

the Medical Malpractice Act necessary. is pose currently codified Tennessee 29-26-116(a)(3) Teeters v. Currey, 518 S.W.2d Code Annotated section (Tenn.1974), adopted this Court immediately following the codification of rule, discovery (a)(2). holding that a medical mal discovery rule in subsection

521 malpractice repose of statute repose The this of the medical location of statute minority, “the minor during not tolled purpose reducing its the effect of the is of lose his of action strict could forever cause discovery legislature’s the in- rule shows through of others.” Parla ly neglect the phrase tent that the no event” “[i]n to, 29-26-116(a)(3) at 999. F.Supp. discovery section limits the supersedes rule other stat- rather than all courts have Finally, since various utes, minority tolling provi- the including malpractice recognized that the medical disability in the legal sions statute. during in repose of is tolled the statute Parlato, 470 jured minority. See previously have held that Tennessee Bowers, 999-1000; F.Supp. 954 S.W.2d at not Code Annotated section 28-1-106 does Yоder, 758-59; at Braden v. repose for toll statute of mental incom- see also Pen (Tenn.Ct.App.1979); petency. Penley, 31 S.W.3d at 185. We (limiting prece- at 188 ley, 31 S.W.3d a recognized policy permitting that holding that weight of Bowers to its dential tolling repose during of a statute of mental malpractice repose damages the incompetency severely under- minority). during tolled is to lying purposes repose of statutes of due Assembly yet has not ex The General period during time which a indefinite disapproval holdings of pressed these mentally incompetent. person could remain sec amending Tennessee Code Annotated contrast, any period Id. In of at 188. mi exprеssly prohibit tion 29-26-116 to longer minority eigh- will not extend than of nority tolling malpractice the medical years. teen at tolling Id. 187. Unlike repose. Generally, legislative of statute minority of the medi- incompetency, tolling to interpretation inaction is irrelevant repose cal of continues statute Indus., statutes. Freeman existing of provide period to an of time ascertainable Co., 172 LLC v. Eastman Chem. lia- exposure which a defendant’s to (Tenn.2005). legislature’s Minority bility be discontinued. toll- will judi disapproval of the express failure ing “merely not prac- extends —but does construction, however, per provides cial tically repose Id. period.” eliminate —the of legislative adoption suasive evidence Therefore, running at extending 188. judicial Legislative Id. construction. of re- the medical statute not support inaction alone does pose during plaintiffs repose period a does statute tolling of the medical destroy purposes for which factor limitation. Consideration this was enacted. along language purposes with the Furthermore, minority tolling, without sections 28-1- Tennessee Code Annotated stat effect leads me to conclude 106 and 29-26-116 ute a is harsher than on minor 28-1-106 the medical that section tolls its on an adult. Section 26-26- effect during 116(a)(3) a of action may eliminate cause plaintiffs minority. before thе cause action accrues. Pen I am authorized state Justice ley, at An 186. adult who dis joins dissenting opin- in this ANDERSON three-year period that he covers within ion. at injured position is least Parlato, bring an promptly action. ORDER 999; Bowers, at F.Supp. PER CURIAM. contrast, minor, especially 755. In one Kaitlyn Calaway and injured early rely upon must age, appellants, at an re- filed motion for Calaway, If Kathleen bring adult to an action on his behalf. hearing of the opinion this issued Court

February 2006. their petition, the

appellants request that the give pro- Court

spective application of newly an-

nounced rule to involving injuries cases

occurring after December rather

than to cases commenced after this date. consideration,

Upon due we conclude the appellants’ petition not well-

taken and should be denied.

Also before the Court is a motion to

rehear filed appellee, Dr. Jodi Appellee argues

Schucker. violation of Due

her Process rights grounds: two

(1) given that she was opportunity respond ‍‌‌‌‌​​‌‌‌‌​​‌‌​‌​​‌​‌‌​​‌​‌​‌‌‌​​​​​‌​‌​‌​​​‌‌​‌‍plaintiff’s motion to re- prospective applica-

hear on the matter of prospective

tion and application of new rule a manner consistent with

Due Process requires this Court to balance

the appellant’s reliance interest on the old against

rule appellee’s vested property

interest the new rule. consideration,

After careful the Court is opinion that this motion filed

appellee should be denied.

Justices Anderson Holder adhere to previously expressed

the views in their

previously filed dissent.

IT SOIS ORDERED.

STATE of Tennessee Gary

James TURNER.

Supreme Tennessee, Court of

at Nashville.

Oct. Session.

April 2006.

Case Details

Case Name: Calaway Ex Rel. Calaway v. Schucker

Court Name: Tennessee Supreme Court

Date Published: Feb 21, 2006

Citation: 193 S.W.3d 509

Court Abbreviation: Tenn.