Derrick Johnson v. Jerry R. Floyd, M.D.

IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
May 24, 2012 Session
DERRICK JOHNSON, ET AL. v. JERRY R. FLOYD, M.D., ET AL.
Appeal from the Circuit Court for Shelby County
No. CT-003875-11 James F. Russell, Judge
No. W2012-00207-COA-R3-CV - Filed June 29, 2012
This case concerns the application of the medical malpractice notice requirement to a lawsuit
that was previously nonsuited and then re-filed pursuant to the saving statute. The children
of a woman who died due to alleged medical negligence filed suit against the defendant
medical providers. The children subsequently nonsuited the lawsuit. Within one-year of the
nonsuit, the children sent notice of a potential claim to the medical providers. Within one
year and 120 days from the nonsuit, the children re-filed their claim. The medical providers
moved to dismiss on the ground that the claim was not filed within the one-year period
provided by the saving statute and, as such, was barred by the applicable statute of
limitations. The trial court dismissed the action and the children appealed. Concluding that
the saving statute, Tennessee Code Annotated Section 28-1-105(a) is not an “applicable
statute[] of limitations or repose,” we hold that the saving statute is not extended by
compliance with the medical malpractice notice requirement, Tennessee Code Annotated
Section 29-26-121(c). Affirmed and remanded.
Tenn. R. App. P. 3. Appeal as of Right; Judgment of the Circuit Court Affirmed and
Remanded
J. S TEVEN S TAFFORD, J., delivered the opinion of the Court, in which A LAN E. H IGHERS, P.J.,
W.S., and D AVID R. F ARMER, J., joined.
Al H. Thomas and Aaron L. Thomas, Memphis, Tennessee, for the appellants, Derrick
Johnson, Marcus Johnson, Ozell Johnson, Odell Johnson, Terrence Johnson, children of
Deborah Johnson, deceased.
J. Kimbrough Johnson and Elizabeth T. Collins, for the appellees, Jerry R. Floyd, M.D., and
Mid-South Wellness Center, Inc.
Katherine M. Anderson, Memphis, Tennessee, for the appellee, Tewfik Rizk, M.D.
OPINION
I. Background
On December 7, 2004, Plaintiffs/Appellants, Derrick Johnson, Marcus Johnson, Odell
Johnson, Ozell Johnson, and Terrence Johnson (collectively, “Appellants”) filed a complaint
on behalf of their Mother, Deborah Johnson, alleging that she died as a result of the medical
negligence of Defendants/Appellees Jerry R. Floyd, M.D., Tewfik Rizk, M.D., and Mid-
South Wellness Center, Inc. (“Mid-South Wellness,” and together with Dr. Floyd and Dr.
Rizk, “Appellees”). The complaint alleged that the Appellees negligently treated the
Appellants’ mother for her rheumatoid arthritis, resulting in her death.
On April 27, 2010, the Appellants entered an order of voluntary dismissal. On April
11, 2011, attempting to re-file their lawsuit, the Appellants provided the Appellees written
notice of their potential claim1 as required by Tennessee Code Annotated Section
29-26-121.2 On August 24, 2011 (which is within one year and 120 days from the order of
voluntary dismissal concluding the first case), the Appellants re-filed their complaint.
1
On appeal, both parties agree that Appellants were required to provide notice to the Appellees of
their potential claim on re-filing their complaint after a nonsuit. See Meyers v. AMISUB (SFH), Inc., No.
W2010-00837-COA-R9CV, 2011 WL 664753 (Tenn. Ct. App. Feb. 24, 2011) (perm. app. granted Aug. 23,
2011) (oral arg. heard April 4, 2012) (holding that a party must comply with the notice requirements of the
Medical Malpractice Act when a medical malpractice action is re-filed pursuant to the saving statute).
2
Tennessee Code Annotated Section 29-26-121 provides, in pertinent part:
(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.
(2) The notice shall include:
(A) The full name and date of birth of the patient whose treatment is at
issue;
(B) The name and address of the claimant authorizing the notice and the
relationship to the patient, if the notice is not sent by the patient;
(C) The name and address of the attorney sending the notice, if applicable;
(D) A list of the name and address of all providers being sent a notice; and
(E) A HIPAA compliant medical authorization permitting the provider
receiving the notice to obtain complete medical records from each other
provider being sent a notice.
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The second complaint specifically alleges that Ms. Johnson suffered from rheumatoid
arthritis, for which she sought medical treatment from Dr. Floyd. During these visits, Dr.
Floyd prescribed various medications including Methotraxate beginning in September 2000.
However, Dr. Floyd ceased prescribing Methotraxate to Ms. Johnson on March 26, 2002.
In 2002, Dr. Floyd referred Ms. Johnson to Dr. Rizk for specialist treatment of her
rheumatoid arthritis. Dr. Rizk again prescribed Methotraxate to Ms. Johnson, first at 2.5
milligrams per week; however, Dr. Rizk gradually increased the dosage until June 2003,
when Ms. Johnson was taking 15 milligrams per week. Throughout this time, Ms. Johnson
suffered serious pulmonary difficulties. In February 2004, Ms. Johnson was diagnosed with
interstitial lung disease. Her physicians determined that Methotraxate toxicity was the cause
of the disease. Ms. Johnson died as a result of the lung disease on May 4, 2004. The
complaint avers that Ms. Johnson’s death was legally and proximately caused by
Methotraxate toxicity, as a result of the negligence of the Appellees.
Appellees filed separate motions to dismiss, both arguing that the Appellants’ claim
was barred by the one-year statute of limitations concerning medical malpractice actions
because the complaint was not filed within the one-year time period allowed by the saving
statute. Accordingly, the Appellees argued that the new complaint could not relate back to
the original complaint, and as such was filed after the expiration of the one-year medical
malpractice statute of limitations. Appellants argued that the saving statute was extended by
written notice of a potential claims as required under Tennessee Code Annotated Section 29-
26-121.
The trial court held a hearing on the motions to dismiss on October 28, 2011. At the
hearing, the trial court orally ruled that the extension granted by complying with the notice
requirement of Tennessee Code Annotated Section 29-26-121(c) did not extend the one-year
saving statute. An order memorializing the oral ruling and dismissing the case was entered
on December 20, 2011 (the order was marked as entered on November 4, 2011, but was
subsequently corrected in the trial court). The Appellants timely appealed.
II. Standard of Review
In considering an appeal from a trial court's grant of a motion to dismiss, we take all
allegations of fact in the complaint as true, and review the lower courts' legal conclusions de
novo with no presumption of correctness. Tenn R. App. P. 13(d); Mid-South Industries, Inc.
v. Martin Mach. & Tool, Inc., 342 S.W.3d 19, (Tenn. Ct. App. 2010) (citing Owens v.
Truckstops of America, 915 S.W.2d 420, 424 (Tenn. 1996)).
III. Analysis
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Appellees raise a number of issues on appeal; however, we conclude that the
dispositive question on appeal concerns whether the Saving Statute, Tennessee Code
Annotated Section 28-1-105, is extended by 120 days when the plaintiff sends written notice
of a potential claim in compliance with Tennessee Code Annotated Section 29-26-121.
The Tennessee Saving Statute provides, in pertinent part:
If the action is commenced within the time limited by a rule or
statute of limitation, but the judgment or decree is rendered
against the plaintiff upon any ground not concluding the
plaintiff's right of action, or where the judgment or decree is
rendered in favor of the plaintiff, and is arrested, or reversed on
appeal, the plaintiff, or the plaintiff's representatives and
privies, as the case may be, may, from time to time, commence
a new action within one (1) year after the reversal or arrest.
Tenn. Code Ann. § 28-1-105(a). Accordingly, a complaint properly filed within the
applicable statute of limitations may be voluntarily dismissed and re-filed within one year.
The new action will relate back to the previous filing for purposes of the statute of
limitations. See generally Cronin v. Howe, 906 S.W.2d 910, 912–13 (Tenn. 1995)
(discussing the application of the saving statute).
The statute of limitations in a medical malpractice case is one year from the date of
the discovery of the injury. Tenn. Code Ann. § 29-26-116. However, in 2008, the Tennessee
Legislature passed the Medical Malpractice Act, requiring that the plaintiff in a medical
malpractice action send written notice to the defendants of a potential claim, at least sixty
(60) days prior to filing their complaint. See 2008 Pub. Acts, c.919, § 1. Tennessee Code
Annotated Section 29-26-121 (a)(1) provides, in pertinent part:
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.
The legislature at that time also enacted a measure that extended the applicable statute of
limitations by ninety (90) days when the plaintiff complied with the notice requirement. See
2008 Pub. Acts, c.919, § 1. This period was later extended to 120 days. See 2009 Pub. Acts,
c. 425, § 1, eff. July 1, 2009. The current version of the statute provides:
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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. Once a complaint is filed alleging a claim for
medical malpractice, the notice provisions of this section shall
not apply to any person or entity that is made a party to the
action thereafter by amendment to the pleadings as a result of a
defendant's alleging comparative fault.
Tenn. Code Ann. §29-26-121(c). Accordingly, when a plaintiff sends the proper written
notice within one year of the discovery of the injury, the applicable statute of limitations or
repose is extended for a period of 120 days. The determinative issue in this case, then, is
whether the saving statute is an “applicable statute[] of limitations or repose.”
In determining the proper interpretation to be given to a statute, we must employ the
rules of statutory construction. The Tennessee Supreme Court recently reiterated the
“familiar rules,” stating:
Our role is to determine legislative intent and to effectuate
legislative purpose. [Lee Med., Inc. v. Beecher, 312 S.W.3d
515, 526 (Tenn. 2010)]; In re Estate of Tanner, 295 S.W.3d
610, 613 (Tenn. 2009). The text of the statute is of primary
importance, and the words must be given their natural and
ordinary meaning in the context in which they appear and in
light of the statute's general purpose. See Lee Med., Inc., 312
S.W.3d at 526; Hayes v. Gibson Cnty., 288 S.W.3d 334, 337
(Tenn. 2009); Waldschmidt v. Reassure Am. Life Ins. Co., 271
S.W.3d 173, 176 (Tenn. 2008). When the language of the
statute is clear and unambiguous, courts look no farther to
ascertain its meaning. See Lee Med., Inc., 312 S.W.3d at 527;
Green v. Green, 293 S.W.3d 493, 507 (Tenn. 2009). When
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necessary to resolve a statutory ambiguity or conflict, courts
may consider matters beyond the statutory text, including public
policy, historical facts relevant to the enactment of the statute,
the background and purpose of the statute, and the entire
statutory scheme. Lee Med., Inc., 312 S.W.3d at 527–28.
However, these non-codified external sources “cannot provide
a basis for departing from clear codified statutory provisions.”
Id. at 528.
Mills v. Fulmarque, 360 S.W.3d 362, 368 (Tenn. 2012).
Accordingly, we first consider the language of the statute. The phrase “statute[] of
limitations” is not defined by the Medical Malpractice Act.3 In addition, we can find no
Tennessee case expressly defining the phrase for purposes of the Medical Malpractice Act
notice requirement. Both parties point to the dictionary definition of the phrase “statute[] of
limitations.” Where appropriate, courts may utilize dictionary definitions in interpreting
statutes. State v. Majors, 318 S.W.3d 850, 859 (Tenn. 2010) (quoting State v. Williams, 690
S.W.2d 517, 529 (Tenn. 1985)). Black’s Law Dictionary defines a statute of limitations as
“[a] statute prescribing limitations to the right of action on certain described causes of action
or criminal prosecutions; that is, declaring that no suit shall be maintained on such causes of
action, nor any criminal charges be made, unless brought within a specified period of time
after the right accrued” Black’s Law Dictionary 835 (5th ed. 1979). Consequently, the
Appellees argue that only limitations on claims related to the accrual of the action when the
injury occurred or was discovered may properly be referred to as statutes of limitations. See
Black’s Law Dictionary 19 (5th ed. 1979) (stating that a cause of action “‘accrues’ when a
suit may be maintained thereon” or “on the date that damage is sustained.”). Additionally,
American Jurisprudence provides this definition:
The term "statute of limitations" is the collective term
commonly applied to acts or part of acts that prescribe the
periods beyond which a plaintiff may not bring a cause of
action. A statute of limitations establishes the time period, after
a cause of action arises, within which a claim or suit must be
filed, to enforce that cause of action. A statute of limitations is
a declaration that no suit may be maintained on a cause of
action unless the suit is brought within a specified period of
3
The Appellants do not argue that the saving statute may be considered a statute of repose.
Accordingly, we will consider only whether the saving statute qualifies as a statute of limitations for
purposes of the notice requirement of the Medical Malpractice Act.
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time after the right has accrued, or in other words, a law that
bars claims after a specified period.
51 Am. Jur. 2d Limitation of Actions § 2 (footnotes omitted). However, from our research,
other definitions of the phrase do not require that the limitations period be connected to the
accrual of the action. For example, Bryan Garner’s A Dictionary of Modern Legal Usage
defines a statute of limitations simply as “a statute establishing a time limit for suing or for
prosecuting a crime.” Bryan A. Garner, A Dictionary of Modern Legal Usage 831 (2d ed.
1995). The result is that the dictionary definition of the phrase, alone, cannot decide this
issue.
Appellees next cite to cases from other jurisdictions in which courts have concluded
that a saving statute is not a statute of limitations. Cases specifically concerning medical
malpractice notice requirements involve fairly new legislation; as such, few courts have
considered this issue. The Appellees cite only one jurisdiction in which this particular issue
has been considered and the courts have ruled in favor of the Appellees’ position. In Waltz
v. Wyse, 677 N.W.2d 813 (Mich 2004), the Michigan Supreme Court held that the wrongful
death saving statute was not extended by compliance with the medical malpractice notice
requirement. Id. at 818. Pursuant to Michigan law, “the statute of limitations or repose” is
extended “if the plaintiff provides a valid notice of intent before the limitation period
expires.” Id. at 815 (citing Mich. Comp. Laws § 600.5856). Similar to the Appellants in this
case, in Waltz, the plaintiff argued that her complaint was timely filed under Michigan’s
wrongful death saving statute because the saving statute was extended by complying with the
medical malpractice notice requirement. The defendants argued, however, that the wrongful
death saving statute was not a “statute of limitations or repose” that could be extended by
complying with the medical malpractice notice requirement. Id.
The Michigan Supreme Court agreed:
Section 5856(d), by its express terms, tolls only the applicable
“statute of limitations or repose.” As we recently stated in
Miller, [] 644 N.W.2d 730 [(Mich 2003)], the wrongful death
provision, § 5852, “is a saving statute, not a statute of
limitations.” (Emphasis supplied.) See also Lindsey v. Harper
Hosp., [564 N.W.2d 861 (Mich. 1997),] in which we explained
that § 5852, as “the statute of limitations saving provision ” and
an “exception to the statute of limitations,” operated “to
suspend the running of the statute until a personal representative
is appointed to represent the interests of the estate.”
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The plain language of [Mich. Comp. Laws] § [600.]5852
wholly supports our conclusion that it is not itself a “statute of
limitations.” Again, § 5852 provides:
If a person dies before the period of limitations
has run or within 30 days after the period of
limitations has run, an action which survives by
law may be commenced by the personal
representative of the deceased person at any time
within 2 years after letters of authority are issued
although the period of limitations has run. But an
action shall not be brought under this provision
unless the personal representative commences it
within 3 years after the period of limitations has
run. [Emphasis supplied.]
By its own terms, § 5852 is operational only within the context
of the separate “period of limitations” that would otherwise bar
an action. Section 5852 clearly provides that it is an exception
to the limitation period, allowing the commencement of a
wrongful death action as many as three years after the
applicable statute of limitations has expired.
Waltz, 677 N.W.2d at 817–18. Accordingly, the Michigan Supreme Court held that
compliance with the medical malpractice notice requirement did not extend the saving statute
because a saving statute is not an “applicable statute of limitations or repose.” Turning to our
own statutory scheme, just as in Michigan, our notice requirement expressly extends only
"the applicable statute of limitations or repose," rather than the saving statute. Tenn. Code
Ann. § 29-26-121(c). Additionally, our Saving Statute likewise requires the operation of
a separate statute of limitations, requiring that the original complaint be "commenced within
the time limited by a rule or statute of limitation." Tenn. Code Ann. § 28-1-105(a); see also
Pugh v. St. Paul Fire & Marine Ins. Co., 877 S.W.2d 577 (Ark. 1994), superseded by
statute Acts of 1995, Act 1296, § 63 (1995) (holding that the now-repealed notice
requirement did not extend the time period under the saving statute because the saving statute
was not expressly mentioned in the notice requirement statute); Boggs v. Baum, No.
10AP–864, 2011 WL 2112482 (Ohio Ct. App. May 24, 2011) (perm. app. denied Oct. 19,
2011) (holding that a saving statute is not a statute of limitations). Appellants cite no
jurisdictions, nor has our research revealed any jurisdictions, in which courts have concluded
that a saving statute is an applicable statute of limitations for purposes of a medical
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malpractice notice requirement.4
According to the Appellants, however, it would be illogical to apply certain provisions
of the Medical Malpractice Act requiring a plaintiff to send notice of potential claim upon
refiling a complaint after nonsuit, without applying the corresponding extension of the statute
of limitations. Appellants argue that the case law in Tennessee provides support for their
argument that the saving statute is extended by compliance with the notice requirement. For
support, Appellants cite Meyers v. AMISUB (SFH), Inc., No. W2010-00837-COA-R9CV,
2011 WL 664753 (Tenn. Ct. App. Feb. 24, 2011) (perm. app. granted Aug. 23, 2011) (oral
arg. heard April 4, 2012) for the proposition that all provisions of the Medical Malpractice
Act must apply to a case re-filed after a nonsuit, because the case is a “new action.” The
Appellants cite language from Meyers, indicating that “When [plaintiff] re-filed his action
in September 2009, he ‘commence[d] a new action’ that was governed by the statutory
provisions, which became effective as amended on July 1, 2009.” We disagree. The Meyers
court considered only the issue of whether a plaintiff is required to provide notice to the
defendants of a potential claim when an action is recommenced after a nonsuit. In Meyers,
the plaintiff had not sent proper notice of his potential claim; thus, the Court in Myers,
unlike in this case, was not called upon to consider whether complying with the medical
malpractice notice requirement extended the saving statute.
Appellants also cite two cases in which they claim that Tennessee courts have
referred to the saving statute as a statute of limitations. First, in Evans v. Perkey, 647 S.W.2d
646, 641(Tenn. Ct. App. 1982), this Court referred to the saving statute as a “statute of
limitations” in holding that the time period for recommencing an action under the saving
statute runs from the date of the entry of the order nonsuiting the case, rather than from the
filing of the notice of nonsuit. Id. at 641. This conclusory statement, however, does not
amount to a holding that the saving statute is a statute of limitations for purposes of the
Medical Malpractice Act, a law which would not be enacted for nearly thirty years after this
decision. Appellants also cite Moran v. Weinberger, 260 S.W. 966, 969 (Tenn. 1924),
abrogated on other grounds by Ware v. Meharry Medical College, 898 S.W.2d 181 (Tenn.
1995), as support that the saving statute is a statute of limitations. However, from our reading
of Moran, the Tennessee Supreme Court stated that the saving statute “suspend[s]” or
“stay[s]” the statute of limitations, rather than that the saving statute is a statute of limitations
in itself. Id. at 969.
4
Though not cited by the Appellants in this case, we recognize the recent decision on this issue in
Tennessee, Rajvongs v. Wright, No. M2011-01889-COA-R9-CV, 2012 Tenn. App. LEXIS 393 (Tenn. Ct.
App. June 18, 2012), holding that the saving statute is extended by the medical malpractice notice
requirement. A detailed discussion of the Wright opinion is set forth infra.
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Indeed our Supreme Court recently noted language similar to that in Moran regarding
the ninety-day window in which to file an amended complaint against a tortfeasor named by
a defendant to conclude that the ninety-day window was not “an applicable statute of
limitations.” See Mills v. Fulmarque, 360 S.W.3d 262 (Tenn. 2012). In Mills v. Fulmarque,
360 S.W.3d 262 (Tenn. 2012), the plaintiff timely filed a federal lawsuit against a packaging
company after he fell from a chair while doing business at the packaging company. The
packaging company filed an answer alleging the comparative fault of the company that sold
the chair. The plaintiff filed an amended complaint, naming the seller as a party, within
ninety days of the packaging company’s answer. The seller filed an answer to the amended
complaint, alleging that the plaintiff’s injuries were caused by Fulmarque, Inc.
(“Fulmarque”), the manufacturer of the chair. Within ninety days of the seller’s answer, the
plaintiff filed a second amended complaint, naming Fulmarque as a party. The addition of
Fulmarque destroyed diversity jurisdiction, and the case was dismissed.
Pursuant to the saving statute, the plaintiff timely re-filed the complaint in state court.
Fulmarque moved for summary judgment on the ground that the plaintiff’s claim against it
was barred by the statute of limitations. Eventually, the trial court granted the motion for
summary judgment, holding that the plaintiff’s claim was barred by the statute of limitations,
relying on Tennessee Code Annotated Section 20-1-119, which states, in pertinent part:
(a) In civil actions where comparative fault is or becomes an
issue, if a defendant named in an original complaint initiating a
suit filed within the applicable statute of limitations, or named
in an amended complaint filed within the applicable statute of
limitations, alleges in an answer or amended answer to the
original or amended complaint that a person not a party to the
suit caused or contributed to the injury or damage for which the
plaintiff seeks recovery, and if the plaintiff's cause or causes of
action against that 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 that person's fault,
either:
(1) Amend the complaint to add the person as a defendant
pursuant to Tenn. R. Civ. P. 15 and cause process to be issued
for that person; or
(2) Institute a separate action against that person by filing a
summons and complaint. If the plaintiff elects to proceed under
this section by filing a separate action, the complaint so filed
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shall not be considered an original complaint initiating the suit
or an amended complaint for purposes of this subsection (a).
(b) A cause of action brought within ninety (90) days pursuant
to subsection (a) shall not be barred by any statute of limitations.
The trial court found that the seller was not “a defendant named in an original
complaint initiating a suit within the applicable statute of limitations or named in an
amended complaint filed within the applicable statute of limitations.” Mills, 360 S.W.3d at
365 (citing Tenn. Code Ann. § 20-1-119 ). Accordingly, the trial court concluded that the
ninety-day window provided by Tennessee Code Annotated Section 20-1-119 was not
triggered by the seller’s answer alleging comparative fault. Without the ninety-day window
on which to rely, the plaintiff’s claim against Fulmarque was asserted after the expiration
of the statute of limitations. Mills, 360 S.W.3d at 365.
The plaintiff appealed and the Court of Appeals reversed, holding that the ninety-day
window provided by Tennessee Code Annotated Section 20-1-119 was an “applicable statute
of limitations.” Accordingly, the Court of Appeals concluded that by naming the seller
within the ninety-day window provided by Tennessee Code Annotated Section 20-1-119 , the
seller was “a defendant named in an original complaint initiating a suit within the applicable
statute of limitations or named in an amended complaint filed within the applicable statute
of limitations.” Id. at 365–66.
The Tennessee Supreme Court reversed the Court of Appeals and affirmed the trial
court’s grant of summary judgment, holding that the plaintiff’s claim against Fulmarque was
barred by the applicable statute of limitations. The Supreme Court relied on the plain
language of the statute to support this holding:
In our view, the phrase “applicable statute of limitations” refers
exclusively to the statute of limitations for a plaintiff's cause of
action. Thus, the ninety-day period provided in section 20-1-
119 is available to a plaintiff only when a defendant sued within
the statute of limitations applicable to the plaintiff's underlying
cause of action “alleges in an answer or amended answer to the
original or amended complaint that a person not a party to the
suit caused or contributed to the injury or damage for which the
plaintiff seeks recovery. . . .” Tenn. Code Ann. § 20-1-119(a).
Indeed, construing the phrase to include the ninety-day
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period would be clearly inconsistent with its usage in the second
clause of subsection (a)—“if a defendant named in an original
complaint initiating a suit filed within the applicable statute of
limitations . . . .” Tenn. Code Ann. § 20-1-119(a). Since the
ninety-day period never becomes relevant until a responsive
pleading alleging fault against a nonparty is filed, the
“applicable statute of limitations” relevant to “an original
complaint initiating a suit” will never include the ninety-day
period. In the absence of statutory language indicating that the
definition of the phrase differs from one sentence, or
subsection, to the next, we decline to assign inconsistent
definitions to the same phrase.
We further note that, by its own terms, subsection (a)
plainly distinguishes the ninety-day period from the phrase
“applicable statute of limitations.” See Tenn. Code Ann. § 20-1-
119(a) (“[I]f the plaintiff's cause or causes of action against that
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 the person's fault . . . .”).
Mills, 360 S.W.3d at 368–69 (footnotes omitted). Thus, the Supreme Court concluded that
the plain language of Tennessee Code Annotated Section 20-1-119 created a distinction
between the ninety-day window and the applicable statute of limitation.
Instead of characterizing the ninety-day window as a statute of limitations, the
Supreme Court characterized the ninety-day window as more akin to a saving statute:
[C]ourts have consistently characterized “applicable statute of
limitations” to mean the statute of limitations applicable to a
plaintiff's claim. In contrast, courts have characterized the
ninety-day period, not as a statute of limitations, but as a
“window,” as a “saving[ ] statute,” as a “tolling [ ] statute,” as
an “extension,” as a “suspension,” and as a “grace period.”
Mills, 360 S.W.3d at 369–70 (footnotes omitted). Based on this logic, if the ninety-day
window is not an “applicable statute of limitations” because it is more aptly described as a
saving statute, then a saving statute is likewise not be considered an “applicable statute of
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limitations.” Indeed, much like the ninety-day window, the saving statute has been
consistently referred to not as a separate statute of limitations, but merely as an extension or
suspension of the applicable statute of limitations. See Lanius v. Nashville Elec. Service,
181 S.W.3d 661, 664 (Tenn. 2005) (referring to the saving statute as “extend[ing] the
limitations period of a lawsuit”); Moran v. Weinberger, 260 S.W. 966, 969 (Tenn. 1924),
abrogated on other grounds by Ware v. Meharry Medical College, 898 S.W.2d 181 (Tenn.
1995); Doe v. Goodwin, 254 S.W.3d 428, 430 (Tenn. Ct. App. 2007) (stating that “a saving
statute [] would toll the one-year limitation period”); Woods v. Jones, 204 S.W.3d 788, 793
(Tenn. Ct. App. 2006) (noting that “a saving statute [] effectively extends the [] statute of
limitations”); Counts v. Bryan, 182 S.W.3d 288, 290 (Tenn. Ct. App. 2005) (stating that
“the statute of limitations was tolled by the Tennessee Saving Statute”); Boone v. Morris,
No. M2002-03065-COA-R3-CV2004 WL 2254012, at *12 (Tenn. Ct. App. Oct. 6, 2004)
(referring to the saving statute as an “extension of the statute of limitations”); Brown v.
State, No. M2002-01361-COA-R3-CV, 2003 WL 2010734, at *2 (Tenn. Ct. App. May 2,
2003) (“referring to the saving statute as “toll[ing] the statute of limitations”); Faulks v.
Crowder, 99 S.W.3d 116, 127 (Tenn. Ct. App. 2002) (referring to the saving statute as a
“one-year tolling period” of the applicable statute of limitations); Mixon v. Wyrick, No.
1107, 1987 WL 17974, at *2 (Tenn. Ct. App. Oct. 8, 1987) (referring to the saving statute
as a “grace period”).
In addition, the Mills court specifically states that “the phrase ‘applicable statute of
limitations’ refers exclusively to the statute of limitations for a plaintiff's cause of action.”
Mills, 360 S.W.3d at 369. Black’s Law Dictionary defines a “cause of action” as “[a]
situation or state of facts which would entitle party to sustain action and give him right to
seek judicial remedy on his behalf” or “[f]acts which give rise to one or more relations of
right-duty between two or more persons.” Black’s Law Dictionary 201 (5th ed. 1979). The
Appellant’s cause of action is for medical malpractice. See Sherrill v. Souder, 325 S.W.3d
584, 595–6 (Tenn. 2010) (stating that in case alleging negligence of physician, the plaintiff’s
cause of action was for medical malpractice, and applying the medical malpractice statute
of limitations). Accordingly, the only “statute of limitations” applicable to the Appellants
cause of action that may be extended by compliance with the notice requirement is
Tennessee Code Annotated Section 29-26-116(a), which provides a plaintiff with one year
from the date of injury or discovery of injury to file a complaint for medical malpractice.
Indeed, other law in Tennessee supports this conclusion. In Sharp v. Richardson, 937
S.W.2d 846 (Tenn. 1996), the Tennessee Supreme Court considered the issue of whether the
six-year product liability statute of repose precluded application of the saving statute. Id. at
849. The Supreme Court concluded that it did not, noting that the product liability statute
of repose was enacted subsequent to the “long history of the saving statute.” Id. at 850. The
defendants argued that the later enactment of the product liability statute of repose acted as
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an exception to the saving statute, limiting its application. The defendants argued that “the
Legislature is presumed to have knowledge of its prior enactments and to know the state of
the law at the time it passes legislation.” Id. (citing Wilson v. Johnson County, 879 S.W.2d
807, 809 (Tenn. 1994)). The Supreme Court noted, however, that “repeals or alterations of
existing statutes by implication is disfavored.” Sharp, 937 S.W.2d at 850 (citing Jenkins
v. Loudon County, 736 S.W.2d 603 (Tenn. 1987)). Accordingly, the Supreme Court ruled
that the subsequent enactment of the product liability statute of repose did not alter the
express provisions of the saving statute. Here the opposite is true: Appellants argue that the
subsequent enactment of the Medical Malpractice Act alters the operation of the saving
statute by extending the time period in which a complaint for medical malpractice may be
filed. Although not cited by Appellants in their brief, we recognize that the saving statute
is to be “liberally construed.” Cronin v. Howe, 906 S.W.2d 910, 913 (Tenn.1995). However,
“[i]n the absence of specific language [in the Medical Malpractice Act] stating its intention
to” extend the saving statute by 120 days, we will not presume that the medical malpractice
notice requirement operates to extend the saving statute. Sharp, 937 S.W.2d at 850.
We are cognizant of the fact that this holding is directly opposite to the determination
of the Middle Section of this Court in the recent decision of Rajvongs v. Wright, No.
M2011-01889-COA-R9-CV, 2012 Tenn. App. LEXIS 393 (Tenn. Ct. App. June 18, 2012).
In Wright, Senior Judge Ben H. Cantrell held that the 120-day extension on “statutes of
limitations” provided by Tennessee Code Annotated Section 29-26-121(c) operated to
extend the saving statute, Tennessee Code Annotated Section 28-1-105(a). Id. at *23–24.
Respectfully, we must disagree. Judge Cantrell’s opinion relies on the holding of
Cunningham v. Williamson County Hospital, No. M2011-00554-COA-R3-CV, 2011 WL
6000379 (Tenn. Ct. App. Nov. 30, 2011) (perm. appeal granted April 11, 2012). In
Cunningham, the Middle Section held that the statute of limitations for a cause of action
under the Governmental Tort Liability Act, Tennessee Code Annotated Section 29-20-
305(b) was extended by compliance with the medical malpractice notice requirement. Id. at
*6. However, unlike the saving statute at issue in this case, courts, including the Tennessee
Supreme Court, have consistently described the one-year limitation on actions filed pursuant
to the Governmental Tort Liability Act as a “statute of limitations.” See e.g., Sanders v.
Traver, 109 S.W.3d 282, 284 (Tenn. 2003) (framing the issue as when the one-year “statute
of limitations” under the Governmental Tort Liability Act began to run); Whitmore v.
Shelby Cnty. Gov’t, No. W2010-01890-COA-R3CV, 2011 WL 3558285 (Tenn. Ct. App.
Aug. 15, 2011); Shaw v. Cleveland Utils. Water Div., No. E2009-00627-COA-R3-CV,
2009 WL 4250157 (Tenn. Ct. App. Nov. 30, 2009); Willis v. Shelby Cnty., Nos.
W200801487COAR3CV, W200801558COAR3CV, 2009 WL 1579248 (Tenn. Ct. App.
June 8, 2009); Estate of Butler v. Lamplighter Apartments, 278 S.W.3d 321 (Tenn. Ct.
App. 2008); Estate of Butler v. Lamplighter Apartments, 278 S.W.3d 321 (Tenn. Ct. App.
2008); Doe v. Goodwin, 254 S.W.3d 428 (Tenn. Ct. App. 2007); Woods v. Jones, 204
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S.W.3d 788 (Tenn. Ct. App. 2006). In addition, the Wright opinion fails to consider this
issue in light of the Tennessee Supreme Court’s holding in Mills v. Fulmarque, 360 S.W.3d
262 (Tenn. 2012), which expressly holds that the phrase “statute of limitations” applies
“exclusively to the statute of limitations for a plaintiff's cause of action.” Id. at 369.
While we agree with both Judge Cantrell and the Appellants in this case that this
holding will “impose additional burdens on plaintiffs,” Wright, 2012 Tenn. App. LEXIS
393, at *24, we are constrained by the express language of the medical malpractice notice
requirement, as well as the holding in Mills, to conclude that the saving statute is not a
statute of limitations for purposes of the medical malpractice notice requirement. As such,
we respectfully decline to follow the holding in Wright. See Ezell v. Cockrell, No.
01A01-9304-CV-00192, 1994 WL 8295, at *8 (Tenn. App. Jan. 12, 1994) (noting that while
appellate courts are bound to follow the decisions of the Supreme Court as binding
precedent, appellate courts may decline to follow decisions by other sections of the Court
of Appeals, or when the decisions are not “settled precedents”); see also In re Estate of
McFarland, 167 S.W.3d 299 (Tenn. 2005) (noting that “whenever a judicial decision, . . .
‘has been submitted to and for some time, acted under, and is not manifestly repugnant to
some rule of law of vital importance in the system, it should not lightly be departed from’”)
(emphasis added).
Based on the reasoning in Mills and Sharp, we hold that the saving statute, Tennessee
Code Annotated Section 28-1-105(a), is not an “applicable statute[] of limitations” for
purposes of the medical malpractice notice requirement. Accordingly, compliance with the
medical malpractice notice requirement does not operate to extend the saving statute beyond
one year from the date of a nonsuit. Because Appellants did not re-file their complaint within
one-year of their nonsuit, their claim is barred by the express terms of the saving statute and
the applicable statute of limitations. Therefore, we affirm the judgment of the trial court and
remand for dismissal of this cause. Costs of this appeal are taxed to Appellants, Derrick
Johnson, Marcus Johnson, Odell Johnson, Ozell Johnson, and Terrence Johnson, and their
surety.
_________________________________
J. STEVEN STAFFORD, JUDGE
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