Tort Law Tidbit – One Thing We Have Missed

As a lawyer who has done medical malpractice work for 24 years I am embarrassed to say this, but I came across this little tidbit a couple weeks ago while preparing for an argument in the Tennessee Supreme Court.

Do we have the discovery rule for med mal cases? “Yes.” What is the test? “Plaintiff must file suit within one year of the date that plaintiff knew or reasonably should have known about the injury.” Right? Wrong. (Well, it might be wrong.)

The statute (T.C.A. Sec. 29-26-116(a)(2)) says “In the event that the injury is not discovered within such one (1) year period, the period of limitation shall be one (1) year from the date of such discovery.” The test appears to be subjective, not objective.

The Legislature did use the objective-test language when talking about the discovery of the presence of a foreign object. That fact gives rise to the argument that the Legislature must have intended to have a different test for the discovery rule in non-foreign object cases.

Of course, I wouldn’t rely on this theory quite yet. The case law all talks about the objective test; the case law relies on Teeters, which pre-dates the 1975 Doctor and Hospital Relief Act.

But if you have a good case you have to take and you have a little statute of limitations problem I think you have a heckuva argument here.