Day on Torts
In 2011, the Tennessee legislature amended the Health Care Liability Act (“HCLA”) to add language regarding governmental entities to the chapter. Per the amendments, health care liability action now specifically includes “claims against the state or a political subdivision thereof,” and health care provider includes “those physicians and nurses employed by a governmental health facility.” Tenn. Code Ann. § 29-26-101. The Court of Appeals first found that this language meant that the 120-day extension of the statute of limitations applies to HCLA cases that fall under the Governmental Tort Liability Act in Harper v. Bradley County, No. E2014-00107-COA-R9-CV, 2014 WL 5487788 (Tenn. Ct. App. Oct. 30, 2014). Now the Court has come to that same conclusion in two additional opinions.
Before the 2011 amendments took effect, the HCLA contained no reference to governmental entities. In Cunningham v. Williamson Cnty. Hosp. Dist., 405 S.W.3d 41 (Tenn. 2013), the Tennessee Supreme Court determined that the HCLA, as it existed prior to the 2011 amendments, did not “evince an express legislative intent to extend the statute of limitations in GTLA cases.” Accordingly, a plaintiff bringing an HCLA claim against a governmental entity was still constricted by the one-year statute of limitations and unable to take advantage of the 120-day extension granted to plaintiffs who give proper pre-suit notice.
Although the Supreme Court has not addressed the interplay of the GTLA and HCLA since the 2011 amendments took effect, the Court of Appeals has now found in three cases that, pursuant to the new language, plaintiffs suing governmental entities under the HCLA are entitled to the 120-day extension so long as they provide proper pre-suit notice. After Harper, the Court reaffirmed its reasoning in Banks v. Bordeaux Long Term Care, 2014 WL 6872979 (Tenn. Ct. App. Dec. 4, 2014). Here, plaintiff sent pre-suit notice prior to the expiration of the one-year statute of limitations then filed suit within the subsequent 120-day window. The trial court dismissed plaintiff’s claim as untimely, but the Court of Appeals reversed. After citing the changes to the HCLA and the reasoning from Harper, the Court held that “Plaintiff’s pre-suit ‘notice’ to the governmental entities was sufficient in all respects; therefore, the GTLA statute of limitations was tolled for an additional 120 days.”
Likewise, in Wade v. Jackson-Madison Cnty. Gen. Hosp. Dist., No. W2014-01103-COA-R3-CV (Tenn. Ct. App. Jan. 27, 2015), the trial court dismissed plaintiff’s claims as untimely. Here, plaintiff was first admitted to the hospital on October 11, 2011, with several procedures and treatments following that date and a final surgery on December 1, 2011. In this particular case, the defendants asserted a new argument regarding why the 120-day extension should not apply to them. The definitions of health care liability action and health care provider were amended to include references to governmental entities effective October 1, 2011, before the cause of action in this case accrued. The remainder of the HCLA at that time, however, still used the term “medical malpractice,” including the section that granted the 120-day time extension. (The term “health care liability” was not added to § 29-26-121 until April 23, 2012.) The defendants in Wade argued that because the HCLA “did not use the term ‘health care liability action’ at the time of the allegedly negligent conduct in this case, the definition of ‘health care liability action’ in [§ 29-26-101(a)(1)] is wholly irrelevant to this case.” According to the defendants, “the definition of a term cannot amend a statute unless the statute actually contains the term in the first place.”
The Court rejected this argument in three ways. First, it stated that the terms “health care liability action” and “medical malpractice” are “synonymous and interchangeable,” such that the definition of one could be considered when interpreting the other. Second, the Court found that the legislature intended the 2011 amendments to have an effect on the HCLA, and that defendants’ argument would render the language change effect-less. Finally, the Court held that even if the language in the statute at the time was ambiguous, the “Tennessee Civil Justice Act evince[d] a legislative intent that ‘health care liability action’ be synonymous with medical malpractice.” Accordingly, the Court in Wade also found that the legislature intended that HCLA cases falling under the GTLA be subject to the 120-day extension and thus reversed the trial court’s dismissal of the case.
These cases clearly reached the correct result. The 2011 amendments to the HCLA clearly show that the legislature intended for the HCLA time extension to override the GTLA’s one-year statute of limitations. Although the Supreme Court has not yet spoken on this issue, the Court of Appeals has shown that it will continue to decide this issue in favor of plaintiffs who take advantage of the time extension in such cases. That said, until the TSC speaks, we cannot be assured that it will do what it should and thus practitioners should plan accordingly.