Erica WADE, et al. v. JACKSON-MADISON COUNTY GENERAL HOSPITAL DISTRICT, et al.
Court of Appeals of Tennessee, AT JACKSON.
January 27, 2015
November 12, 2014 Session
Application for Permission to Appeal Denied by Supreme Court May 19, 2015.
469 S.W.3d 54
Louis P. Chiozza, Jr., Memphis, Tennessee and Steven R. Walker, Oakland, Ten-
Patrick W. Rogers, Jackson, Tennessee, for the appellee, Jackson-Madison County General Hospital District.
Marty R. Phillips and Craig P. Sanders, Jackson, Tennessee, for the appellee, Armie Walker, M.D.
OPINION
J. Steven Stafford, P.J., W.S., delivered the opinion of the Court, in which Arnold B. Goldin, J., and Brandon O. Gibson, J., joined.
The trial court granted summary judgment to the defendant medical providers on the basis that the plaintiffs’ health care liability complaint was filed after the expiration of the Governmental Tort Liability Act statute of limitations. Because we conclude that, under
Background
On October 11, 2011, Plaintiff/Appellant Erica Wade (“the child“) was admitted to Jackson Madison County General Hospital, owned by the Defendant/Appellee Jackson-Madison County General Hospital District, to undergo a total abdominal hysterectomy. The procedure was performed by Defendant/Appellant Armie Walker, M.D., an employee of Jackson-Madison County General Hospital District. The child experienced persistent pain after the operation, and another procedure was performed by Dr. Walker for exploratory purposes on October 17, 2011. Although it was later revealed that the child suffered from a colonic perforation, allegedly caused by the total abdominal hysterectomy, Dr. Walker did not discover the perforation during the exploratory procedure. The child was later discharged from the hospital, despite the fact that the child‘s medical records show that an abscess was found during the exploratory procedure. Over a month later, on November 29, 2011, the child was transferred to Vanderbilt University Hospital, where she was diagnosed with an untreated perforation. The child underwent additional surgery in an attempt to correct the perforation on December 1, 2011.
On February 6, 2013, the child and Plaintiff/Appellant Peggy Fly (“Mother,” and together with the child “Appellants“), individually and as attorney-in-fact for the child, filed a complaint for damages against the Defendants West Tennessee Healthcare Jackson-Madison County General Hospital District (“Jackson-Madison County Health Care District“), West Tennessee Healthcare Network, Bolivar General Hospital, Inc., West Tennessee Healthcare OBGYN Services, Jackson Madison County General Hospital (collectively, “Defendant entities“), and Dr. Walker (together with Jackson-Madison County General Hospital District, “Appellees“). The complaint was accompanied by a certificate of good faith pursuant to
The Defendant entities and Dr. Walker answered the complaint on March 18, 2013 and March 22, 2013, respectively. Both answers asserted that the case was governed by the Tennessee Governmental Tort Liability Act (“GTLA“), denied the material allegations contained therein, and raised the affirmative defense of the expiration of the one-year GTLA statute of limitations.1 On April 2, 2013, Dr. Walker petitioned the trial court for a qualified protective order pursuant to
On March 27, 2014, Dr. Walker filed a motion for summary judgment, arguing that Appellants’ claim was barred by the GTLA statute of limitations. Dr. Walker asserted that the case was controlled by the recent Tennessee Supreme Court case of Cunningham v. Williamson County Hospital District, 405 S.W.3d 41 (Tenn. 2013), which held that the GTLA statute of limitations was not extended through compliance with
The trial court held a hearing on the pending summary judgment motions on May 5, 2014. At the outset of the hearing, the parties agreed that summary judgment
Issues Presented
Appellants raise one issue on appeal: Whether the trial court erred in concluding that Appellants were not entitled to the benefit of the 120-day extension provided in
Standard of Review
A trial court‘s decision to grant a motion for summary judgment presents a question of law. Our review is therefore de novo with no presumption of correctness afforded to the trial court‘s determination. Bain v. Wells, 936 S.W.2d 618, 622 (Tenn. 1997). This Court must make a fresh determination that all the requirements of Tennessee Rule of Civil Procedure 56 have been satisfied. Abshure v. Methodist Healthcare-Memphis Hosps., 325 S.W.3d 98, 103 (Tenn. 2010). When a motion for summary judgment is made, the moving party has the burden of showing that “there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.” Tenn. R. Civ. P. 56.04. Further, according to the Tennessee General Assembly:
In motions for summary judgment in any civil action in Tennessee, the moving party who does not bear the burden of proof at trial shall prevail on its motion for summary judgment if it:
(1) Submits affirmative evidence that negates an essential element of the nonmoving party‘s claim; or
(2) Demonstrates to the court that the nonmoving party‘s evidence is insufficient to establish an essential element of the nonmoving party‘s claim.
Analysis
This case involves a single issue: whether the trial court correctly concluded that the Appellants were not entitled to a 120-day extension on the GTLA statute of limitations through their compliance with the notice provisions of
Because this issue requires us to interpret a statute, we review the trial court‘s decision de novo with no presumption of correctness. We must determine the legislature‘s intent and purpose by reading the words of the statutes using their plain and ordinary meaning in the context in which the words appear. Lee Med., Inc. v. Beecher, 312 S.W.3d 515, 526 (Tenn. 2010). When the language of a statute is clear and unambiguous, courts will not look beyond the plain language of the statute to determine its meaning. Lee Med., 312 S.W.3d at 527.
The Tennessee Supreme Court recently considered this question with regard to a complaint filed in 2010 in Cunningham v. Williamson County Hospital District, 405 S.W.3d 41 (Tenn. 2013). In Cunningham, the plaintiffs claimed that the negligence of a county hospital and its employees resulted in their son‘s death. After giving presuit notice of their claim, the plaintiffs filed a medical malpractice lawsuit, approximately fifteen months after the allegedly negligent treatment. Id. at 42. The hospital filed a motion to dismiss, arguing that the claim was filed after the expiration of the GTLA statute of limitations. The plaintiffs asserted that they were entitled to the 120-day extension provided in
In reaching its decision, the Court explained that the issue involved “the interplay between the GTLA and
The GTLA provides general immunity to governmental entities causing injury to an individual during the exercise or discharge of their duties.
Tenn. Code Ann. § 29-20-201(a) (2012) . Immunity is removed, however, when injuries are caused by the negligence of government employees acting within the scope of their employment.Tenn. Code Ann. § 29-20-205 (2012) . Because waiver of immunity is in derogation of the common law, any claim for damages brought under the GTLA must be “in strict compliance with the terms” of the statute.Tenn. Code Ann. § 29-20-201(c) ; Doyle v. Frost, 49 S.W.3d 853, 858 (Tenn. 2001). Accordingly, the GTLA statuteof limitations, which provides that suits against a governmental entity “must be commenced within twelve (12) months after the cause of action arises,” requires strict compliance. Tenn. Code Ann. § 29-20-305(b) .The second statute at issue in this case is
Tennessee Code Annotated section 29-26-121 , which is part of the Tennessee Medical Malpractice Review Board and Claims Act (“Medical Malpractice Act“).3Tenn. Code. Ann. §§ 29-26-115 to -122 (2000 & Supp. 2010). Section 121(a) requires any person asserting a potential medical malpractice claim to provide notice to each health care provider at least sixty days before filing a complaint.Tenn. Code Ann. § 29-26-121(a) . When the sixty-day notice is provided, the “applicable statutes of limitations and repose shall be extended [120 days] from the date of expiration of the statute of limitations and statute of repose applicable to that provider.”Tenn. Code Ann. § 29-26-121(c) .
Cunningham, 405 S.W.3d at 43-44.
The Court next considered its previous Opinions “examin[ing] asserted conflicts between provisions of the GTLA and other rules or statutes of general application.” Id. at 44. In general, the Court noted that it generally held that statutes of “general application” that conflict with a provision of the GTLA shall not apply to cases brought under the GTLA unless the General Assembly expressly states its intent that the general statute should apply to GTLA cases. Id. at 45 (citing Lynn v. City of Jackson, 63 S.W.3d 332, 337 (Tenn. 2001)). For example, in Lynn, the Tennessee Supreme Court held that the general savings statute was “inapplicable to GTLA claims because the general savings statute did not contain specific language requiring an extension of the GTLA statute of limitations.” Cunningham, 405 S.W.3d at 45 (citing Lynn, 63 S.W.3d at 337). Thus, the Court explained: “In the absence of specific statutory language permitting extension of the GTLA statute of limitations, we have held that statutory provisions inconsistent with the GTLA may not extend the applicable statute of limitations period.” Cunningham, 405 S.W.3d at 45 (citing Lynn, 63 S.W.3d at 337).
The Tennessee Supreme Court in Cunningham concluded that the conflict at issue was similar to the conflict presented in Lynn:
Like the general statutory provision in Lynn, section 29-26-121(c) is inconsistent with the statute of limitations provided by the GTLA and therefore must expressly state the legislature‘s intent to apply the provision to cases brought under the GTLA. Although the 2009 amendment to the Medical Malpractice Act “applies to all medical malpractice actions,” this language does not reference the applicability of the Medical Malpractice Act to actions governed by the GTLA. The language of section 29-26-121(c) fails to evince an express legislative intent to extend the statute of limitations in GTLA cases.
Cunningham, 405 S.W.3d at 45-46 (footnote omitted). Accordingly, the Tennessee Supreme Court held that because
The Court noted, however that a recent amendment to the statutory scheme could change the outcome in future cases. As explained by the Court:
The General Assembly amended the Medical Malpractice Act in 2011 to modify the definition of “health care liability action” to include “claims against the state or a political subdivision thereof.” Act of May 20, 2011, ch. 510, § 8, 2011 Tenn. Pub. Acts. 510, 1506 (codified as amended at
Tenn. Code Ann. § 29-26-101(a) (2012) ). The 2011 amendment became effective on October 1, 2011, after Mr. and Mrs. Cunningham filed their claim. Act of May 20, 2011, ch. 510, § 24, 2011 Tenn. Pub. Acts. 510, 1514. The 2011 amendment does not apply retroactively in this case. See In re D.A.H., 142 S.W.3d 267, 273-74 (Tenn. 2004) (explaining that all statutes are presumed to apply prospectively unless otherwise stated but procedural or remedial statutes that do not affect vested rights may apply retrospectively). Because the 2011 amendment is not at issue in this case, we will await a more appropriate case in which to determine whether the language of the 2011 amendment clearly expresses a legislative intent to extend the statute of limitations in GTLA cases.
Cunningham, 405 S.W.3d at 45 n. 2. Thus, the Tennessee Supreme Court indicated that the October 1, 2011 amendment to
Since the decision in Cunningham, two cases from this Court have considered the issue of whether a medical malpractice plaintiff filing suit after October 1, 2011, may rely on an extension of the GTLA statute of limitations. See Banks v. Bordeaux Long Term Care, No. M2013-01775-COA-R3-CV, 2014 WL 6872979 (Tenn.Ct.App. Dec. 4, 2014) (involving a complaint filed in March 2013 concerning allegedly negligent treatment occurring between May 2011 and January 2012); Harper v. Bradley County, 464 S.W.3d 615 (Tenn.Ct.App.2014), perm. app. filed (involving a complaint filed in February 2013 concerning allegedly negligent treatment occurring in November 2011). In both cases, this Court has concluded that the amendment to
On May 20, 2011, the General Assembly passed House Bill Number 2008, to be known as the Tennessee Civil Justice Act. See 2011 Tenn. Pub. Acts. 510 (codified as amended at
(a) As used in this part, unless the context otherwise requires:
(1) “Health care liability action” means any civil action, including claims against the state or a political subdivision thereof, alleging that a health care provider or providers have caused an injury related to the provision of, or failure to provide, health care services to a person, regardless of the theory of liability on which the action is based;....
The Tennessee Civil Justice Act was approved by the Governor on June 16, 2011. However, the Act specified that it would “take effect [on] October 1, 2011, the public welfare requiring it and shall apply to all liability actions for injuries, deaths and losses covered by this act which accrue on or after such date.” 2011 Tenn. Pub. Acts. 510, § 59. Accordingly, the new language only applied to actions that had accrued on or after October 1, 2011.
At the time the amendment to Title 29, Chapter 26, Part 1 went into effect,
(a)(1) Any person, or that person‘s authorized agent, asserting a potential claim for medical malpractice shall give written notice of the potential claim to each health care provider that will be a named defendant at least sixty (60) days before the filing of a complaint based upon medical malpractice in any court of this state.
* * *
(c) When notice is given to a provider as provided in this section, the applicable statutes of limitations and repose shall be extended for a period of one hundred twenty (120) days from the date of expiration of the statute of limitations and statute of repose applicable to that provider. Personal service is effective on the date of that service. Service by mail is effective on the first day that service by mail is made in compliance with subdivision (a)(2)(B). In no event shall this section operate to shorten or otherwise extend the statutes of limitations or repose applicable to any action asserting a claim for medical malpractice, nor shall more than one (1) extension be applicable to any provider....
(a)(1) Any person, or that person‘s authorized agent, asserting a potential claim for health care liability shall give written notice of the potential claim to each health care provider that will be a
named defendant at least sixty (60) days before the filing of a complaint based upon health care liability in any court of this state. * * *
(c) When notice is given to a provider as provided in this section, the applicable statutes of limitations and repose shall be extended for a period of one hundred twenty (120) days from the date of expiration of the statute of limitations and statute of repose applicable to that provider. Personal service is effective on the date of that service. Service by mail is effective on the first day that service by mail is made in compliance with subdivision (a)(2)(B). In no event shall this section operate to shorten or otherwise extend the statutes of limitations or repose applicable to any action asserting a claim for health care liability, nor shall more than one (1) extension be applicable to any provider.
Appellees argue that because
First, we note that while the term “health care liability action” is not strictly used in the version of
Moreover, it is a well-settled rule of statutory interpretation that in order to ascertain and give effect to the legislative intent, courts must consider the words used in a statute “in the context of the entire statute” and “presume that the General Assembly intended to give each of these words its full effect.” Lovlace v. Copley, 418 S.W.3d 1, 18 (Tenn. 2013) (quoting Garrison v. Bickford, 377 S.W.3d 659, 663 (Tenn. 2012)). Further, we presume that “every word in a statute has meaning and purpose.” In Re C.K.G., 173 S.W.3d 714, 722 (Tenn. 2005). From our research, the terms “health care liability” or “health care liability action” are not used in Title 29, Chapter 26, Part 1, except in
We note that while this exact argument does not appear to have been raised in this Court prior to this case, our decision is in line with other decisions of this Court that have applied the new definition of “health care liability action” to similarly timed claims. As previously discussed, two recent decisions from this Court considered the issue of whether the Tennessee Civil Justice Act‘s inclusion of “claims against the state or a political subdivision thereof” in
Furthermore, the reasoning in both cases regarding the applicability of the term “health care liability action” to the pre-April 2012 version of
Finally, even if we were to conclude that the General Assembly‘s failure to utilize the term “health care liability action” in Title 29, Chapter 26, Part 1, other than in section 101 created an ambiguity or a conflict, the Tennessee Civil Justice Act evinces a legislative intent that “health care liability action” be synonymous with medical malpractice. The Tennessee Supreme Court has indicated that when an ambiguity or conflict exists in a statute, courts may consider “matters other than the statutory language—such as the broader statutory scheme, the history and purpose of the legislation, public policy, historical facts preceding or contemporaneous with the enactment of the statute, earlier versions of the statute, the caption of the act, and the legislative history of the statute—to discern the legislature‘s intent. Womack v. Corrections Corp. of America, 448 S.W.3d 362, 366 (Tenn. 2014) (emphasis added) (citing Pickard v. Tennessee Water Quality Control Bd., 424 S.W.3d 511, 518 (Tenn. 2013)). Here, House Bill Number 2008 states that: “The code commission is requested to delete the terms ‘malpractice,’ ‘medical malpractice,’ ‘malpractice action,’ and ‘medical malpractice action’ wherever they appear in Tennessee Code Annotated and substitute instead the term ‘health care liability’ or ‘health care liability action’ as applicable.” 2011 Tenn. Pub. Acts. 510, § 9; see also Bryan Garner, A Modern Legal Dictionary 848 (2d ed. 1995) (defining “substitute” as to put a person or thing in place of another” or “to supply an equivalent of“). Ac-
Appellees next argue that even considering the language of
As previously discussed, two recent decisions from the Middle and Eastern Sections of this Court have held that the language in
The 2011 amendment expressly clarifies that governmental entities are included as “health care providers” and that “health care liability actions” governed by the HCLA include claims against “the state or a political subdivision thereof.” While it does not mention the GTLA, the language employed by the legislature clearly expresses that GTLA defendants are within the ambit of the HCLA. One such provision is the 60-day pre-suit notice requirement.
Tenn. Code Ann. § 29-26-121 . Section 121(a)(1) requires pre-suit notice “to each health care provider that will be a defendant.” Section 121(c) provides that “[w]hen notice is given to a provider as provided in this section, the applicable statutes of limitations and repose shall be extended for a period of one hundred twenty (120) days from the date of expiration of the statute of limitations and statute of repose applicable to that provider.” (Emphasis added). The Supreme Court has recently stated that “[c]learly, the General Assembly enacted the 120-day extension to offset the obligation to give pre-suit notice at least 60 days prior to filing a complaint.” Rajvongs v. Wright, 432 S.W.3d 808, 813-14 (Tenn. 2013).
Harper, 464 S.W.3d at 621. To support its conclusion, the Harper Court considered another recent string of cases involving the extension of the GTLA statute of limitations with regard to comparative fault and joinder. According to the Court:
The Court of Appeals’ decision in Daniel v. Hardin Cnty. Gen‘l Hosp., 971 S.W.2d 21 (Tenn. Ct. App. 1997), and the General Assembly‘s legislative response to that decision, is instructive in the present case. In Daniel, we addressed “whether the twelve month limitation for bringing suit against a governmental entity pursuant to [the GTLA] can be extended by
T.C.A. § 20-1-119 ,” the com-parative fault statute. 971 S.W.2d at 24. We answered in the negative, noting that “[t]he legislature could have made T.C.A. § 20-1-119 applicable to the [] GTLA, however, it has chosen not to do so.” Id. at 25. The General Assembly subsequently amendedTenn. Code Ann. § 20-1-119 to include subsection (g), which provides that “[n]otwithstanding any law to the contrary, this section applies to suits involving governmental entities.” The Supreme Court later recognized that this language was sufficient to evince an intent to extend the GTLA‘s 12-month statute of limitations in appropriate comparative fault cases, stating as follows:More directly applicable are the intermediate court‘s holdings concerning the comparative fault joinder provision,
Tenn. Code Ann. § 20-1-119 (1999) . This statute applies in comparative fault cases when a plaintiff has sued a defendant and the defendant alleges, after the statute of limitations has expired, that a nonparty caused or contributed to the plaintiff‘s injury. The statute provides:[I]f the plaintiff‘s cause or causes of action against such person would be barred by any applicable statute of limitations but for the operation of this section, the plaintiff may, within ninety (90) days of the filing of the first answer or first amended answer alleging such person‘s fault, either: (1) Amend the complaint . . . pursuant to Rule 15 ...; or (2) Institute a separate action against that person....
Tenn. Code Ann. § 20-1-119(a) . In Daniel v. Hardin County Gen. Hosp., 971 S.W.2d 21, 25 (Tenn. Ct. App. 1997). In so holding, the court noted that the statute appeared to evince a legislative intent not to allow joinder of governmental entities, noting, “The legislature could have made [Tenn. Code Ann.] § 20-1-119 applicable to the [GTLA], however, it has chosen not to do so.” Id. In the wake of Daniel, however, the legislature has amended the joinder statute to explicitly provide that “[n]otwithstanding any provision of law to the contrary, this section applies to suits involving governmental entities.”Tenn. Code Ann. § 20-1-119(g) (amendment effective June 15, 1999). Given the legislature‘s reaction to Daniel, we find reference to the analysis of that case unpersuasive. To the contrary, the legislature‘s amendment of the joinder statute supports the proposition that governmental entities should be treated, for the purposes of Rule 15.03, like any other party.Doyle v. Frost, 49 S.W.3d 853, 860 (Tenn. 2001). The General Assembly‘s amendment to the comparative fault joinder statute,
Tenn. Code Ann. § 20-1-119 , did not specifically refer to either the GTLA or its 12-month statute of limitations. The same is true with respect to the language in the 2011 amendment at issue here. Both amendments explicitly make reference to governmental entities, clarifying that a statutory scheme is applicable to a governmental entity—a potential GTLA defendant. The Supreme Court‘s recognition in Doyle that the legislature‘s response to Daniel was sufficient to allow enlargement of the GTLA statute of limitations in comparative fault situations thus supports our conclusion that the legislature evinced a similar intent here.
The Court, thus, concluded that the General Assembly‘s decision to include in
We hold that the 2011 amendment, now codified at
Tenn. Code Ann. § 29-26-101 , clearly expresses a legislative intent to extend the statute of limitations in GTLA cases where the plaintiff has met the procedural requirements of the HCLA. This construction comports with notions of fundamental fairness and justice, and also with the Supreme Court‘s often-repeated “established view that disfavors the doctrine of sovereign immunity as applied to local governments.” Lucius, 925 S.W.2d at 526; see also Jenkins v. Loudon Cnty., 736 S.W.2d 603, 605-06 (Tenn. 1987), 59 S.W.3d 73, 83 (Tenn. 2001), (stating that the Court “does not regard with favor the doctrine of sovereign immunity as applied to municipal or county governments“); Johnson v. Oman Constr. Co., 519 S.W.2d 782, 786 (Tenn. 1975) (“This Court does not regard with favor the doctrine of sovereign immunity as applied to municipal or county governments.“).
Similarly, in Banks, the Middle Section of this Court also held that the inclusion of claims against “the state or a political subdivision thereof” in the definition of a health care liability action was clear evidence of the General Assembly‘s intent to apply the benefits and burdens of
We agree with the Courts in both Harper and Banks. The General Assembly‘s decision to enact
In this case, there appears to be no dispute that the Appellants complied with the pre-suit notice provisions of
Conclusion
The judgment of the Circuit Court of Madison County is reversed, and this cause is remanded to the trial court for all further proceedings as may be necessary and are consistent with this Opinion. Costs of this appeal are taxed to Appellees Armie Walker, M.D., and Jackson-Madison County General Hospital District, for which execution may issue if necessary.