Day on Torts

Yesterday afternoon the Tennessee Supreme Court said the the 3-year statute of repose found in the "Doctor and Hospital Relief Act of 1975" should be applied to claims made by minors.

Before yesterday, most lawyers assumed that minors had the right to wait until their 19th birthday to file suit. No more.

Our office filed an amicus brief for TTLA in support of the plaintiffs in this case. I argued the case for the plaintiffs.

Chief Justice Barker wrote for a 3-2 majority; he was joined by Justice Drowota and Justice Birch. Justice Holder wrote the dissent; she was joined by Justice Anderson.

I will be part of the effort to file a petition to re-hear and therefore I must reserve extensive comment at this time. Suffice it to say that dozens of medical negligence cases that have been brought on behalf of children will be dismissed if this opinion is applied as written. Hundreds of other cases sitting in law office right now - where the parents waited to see if their child would "grow out" of their problem - will never be filed.

And then, of course, there is the law of unintended consquences. Now parents will be forced to file cases early before they know if their child is truly injured. Defense costs will rise because of the need to defend cases that might not have otherwise been brought. And then the doctors and their insurers will blame the greedy trial lawyers for their problems.

Just like they did in 1975.

John: While I appreciate your advocate's position on this decision, it really boils down to the fact that three members of the Tennessee Supreme Court decided not to violate the separation of powers doctrine and legislate. The phrase "[i]n no event" contained in T.C.A. Section 29-26-116 (3) is objectively and conclusively unambiguous; any "fix" which may be (perceived as) necessary is a function of the legislature, not the Tennessee Supreme Court.

I think the majority opinion is poorly reasoned when put in the historical context of how the applicable statutes fit together, but my question is whether or not you have any sense that this opinion will affect the operation of the savings statute (TCA 28-1-105), which specifically refers only to statutes of limitation? In other words, do you think the "in no event" language as interpreted by the majority would prevent a plaintiff from refiling a case if he took a nonsuit after the expiration of 3 years from the date of the incident?

There is an TSC opinion that holds that a plaintiff may take a nonsuit and re-file after the expiration of the statute of repose. Whether it will remain the law is an entirely different question.

I have tons of questions in regards to the courts decision. I am a parent that this has affected. My daughter was born in 1998 with severe CP and I met with my lawyers in 2000 and they studied my case for 2 years before filing it in the court. When they filed in 2002 my daughter was 4 years old which puts us over the 3 year rule. My daughter then passed away early 2003 when she was 5 due to complications that all go back to her birth. I am very interested in finding out as much as I can about this law and what I need to do to maybe get this overturned. My lawyer has told me that if it is overturned in the next year we can proceed with our case but if not there is nothing we can do. I dont feel that these doctors should get away with what is happening. Would you please pass along any info that would put me in line as to where I need to start. Thanks

I have a child born in 2002 with no diagnosis. (spactic parapalegic, failure to to thrive, etc.) We have seen countless doctors worldwide looking for an explantion without making accusation on the front end. This in my mind was the right thing to do. We have almost exhausted all medical rescources still having no answers. Litigation would have been our final exploration. In your mind where do you find Rule 23 heading or will it be a mainstay.