Tennessee Medical Malpractice Lawsuits Against Governmental Entities and Their Employees and the Notice Statute
Tennessee law has a one year statute of limitation in a medical malpractice (now called a health care liability) case. Formal legal notice must be given to health care providers who are going to be sued in the case and this notice must be given before the expiration of the statute of limitations. Notice must be given at least 60 days before suit is filed. If notice is given as required by law, the statute of limitations is extended for 120 days. All of this is spelled out in detail in T.C. A. Sec. 29-26-121..
Thus, if a patient is hurt as a result of a medical error on Day 1, and notice is given on Day 364, plaintiff cannot file suit until Day 425 (60 days after suit was filed) but must file before Day 485 (120 days after the statute of limitations expired), right?
Yes, unless the case is against a health care provider employed by a local government or against the local government itself. The Tennessee Supreme Court has released its opinion in Cunningham v. Williamson Cty. Hosp. District, No. M2011-00554-SC-S09-CV (Tenn. May 9, 2013) and has ruled that the notice statute (T.C.A. Sec. 29-2-121) does not extend the statute of limitations applicable to claims against governmental entities and its employees. Why? Because the Court has ruled that changes in statutes of general application that specifically conflict with the GTLA do not apply to claims against governmental entities unless the General Assembly specifically says they do.
The practical effect of this ruling is that a person who brings a health care liability action against a local government or a nurse or doctor employed by a local government must give notice of the claim more than 60 days before the expiration of the one year statute of limitations. Why? Because the notice statute requires that a plaintiff must wait sixty days after giving notice to file suit. Failure to comply with this provision will result in dismissal of the case.
Going back to the example used above, if an incident occurs on Day 1 and there is a claim against a local governmental entity or one of its doctors or nurses, notice must be given by no later than Day 304 so that suit can be filed on Day 365. (Note: the statute says that notice must be given "at least sixty days" before suit can be filed. I don't know for sure if suit can be filed on the 60th day after notice is given or if suit can be filed no sooner than 61 days after notice is given. I will let someone else make that law and thus recommend waiting 61 days if possible.)
Two other points must be made. First, the Tennessee Supreme Court notes that
[n]either party has addressed the issue of the applicability of the sixty-day notice requirement in cases governed by the GTLA. Although we have previously held that failure to comply with the sixty-day pre-suit notice requirement of section 29-26 121(a) may result in dismissal of the medical malpractice claim absent a showing of extraordinary cause, we have not previously addressed whether the sixty-day pre-suit notice is required in GTLA cases. Tenn. Code Ann. § 29-26-121(b); Myers v. AMISUB (SFH), Inc., 382 S.W.3d 300, 311-12 (Tenn. 2012).
Therefore, it is possible that the Court is signaling that it is receptive to an argument that notice is not required in cases against local governments.
However, such an argument could be advanced in only a very small number of cases. Why? Because when the Legislature changed the entire Tennessee Code to eliminate reference to medical malpractice cases and substitute the phrase "health care liability action" it expressly stated that e definition of “health care liability action” included “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. Thus, there is no longer any doubt that notice must be given in cases health care liability cases against local government entities and its nurses and doctors.
All of this means that the argument left open by the Court in footnote 3 can only be advanced by those still in litigation over claims that arose after the notice statute first came into effect (October 1, 2008) and the definition change referenced above on October 1, 2011.
All of which gives rise to the second point: does the inclusion of governmental entities under the definition of those covered by health care liability law mean that the Legislature intended to change the law and extend the statute of limitations by 120 days in health care liability cases against local governmental entities and their doctors and nurses if proper notice is given? The Court said that it would "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." FN. 2.
Should lawyers assume that the Court will rule that definition change means that a plaintiff will get the benefit of the 120 day extension of the statute of limitations in every health care liability action under the GTLA arising after October 1, 2011? No. I suggest that it is prudent to assume the 120 extension does not apply. Thus, I suggest that if possible notice be given at least 61 days before filing suit and that suit before filed no later than the end of the one year period. In the event a case comes to the lawyer at a day that makes it extremely difficult or impossible to give the mandated notice, wait the 60 days, and then file suit within the one year period, the lawyer will have to make the decision whether the strength of the case merits a "test case" on this issue.
The notice statute creates yet another hurdle for patients (and their lawyers) to jump in these very difficult cases. Lawyers are advised to stay current on this ever-changing area of the law.