Krisinda Bowers, A Minor, by next friend, Tammy K. Bowers and Steve Bowers v. Stephen Hammond

IN THE COURT OF APPEALS OF TENNESSEE
WESTERN SECTION AT JACKSON
FILED
KRISINDA BOWERS, A Minor, ) May 2, 1997
by next friend, TAMMY K. BOWERS )
and STEVE BOWERS, ) Cecil Crowson, Jr.
) Appellate C ourt Clerk
Plaintiff/Appellant, ) Madison Law No. C-91-273
)
VS. ) Appeal No. 02A01-9601-CV-00011
)
STEPHEN HAMMOND, THE JACKSON )
CLINIC PROFESSIONAL ASSOCIATION, )
and THE JACKSON-MADISON COUNTY )
GENERAL HOSPITAL, )
)
Defendants/Appellees. )
APPEAL FROM THE CIRCUIT COURT OF MADISON COUNTY
AT JACKSON, TENNESSEE
THE HONORABLE FRANKLIN MURCHISON, JUDGE
JOEL PORTER
BURCH, PORTER & JOHNSON
Memphis, Tennessee
Attorney for Plaintiff/Appellant
JAMES BELEW WEBB
FLIPPIN, COLLINS, HUEY & WEBB
Milan, Tennessee
Attorney for Plaintiff/Appellant
MARTY R. PHILLIPS
RAINEY, KIZER, BUTLER, REVIERE & BELL, P.L.C.
Jackson, Tennessee
Attorney for Appellees, Stephen Hammond &
The Jackson Clinic Professional Association
JERRY D. KIZER, JR.
PATRICK W. ROGERS
RAINEY, KIZER, BUTLER, REVIERE & BELL, P.L.C.
Jackson, Tennessee
Attorneys for Appellee Jackson-Madison County
General Hospital District
AFFIRMED IN PART, REVERSED IN PART
AND REMANDED
ALAN E. HIGHERS, J.
CONCUR:
W. FRANK CRAWFORD, P.J., W.S.
DAVID G. HAYES, J.
Plaintiff Krisinda Bowers, a minor, by next friends Tammy K. Bowers and Steve
Bowers (Krisinda’s parents), appeals the trial court’s order entering summary judgment in
favor of Defendants/Appellees Stephen Hammond, The Jackson Clinic Professional
Association, and Jackson-Madison County General Hospital. In dismissing the complaint,
the trial court ruled that Krisinda’s action against the Defendants was barred by the three-
year statute of repose applicable to medical malpractice actions and, further, that
Krisinda’s action against the Hospital was barred by her failure to comply with the statutory
notice requirements formerly applicable to actions against governmental entities. We
affirm in part and reverse in part.
On March 18, 1982, Krisinda was born at Jackson-Madison County General
Hospital, where she was delivered by Dr. Hammond and employees of the Hospital. Dr.
Hammond was an employee of The Jackson Clinic. During her birth, Krisinda suffered
from oxygen deficiency, or hypoxia, which resulted in severe brain damage and mental
retardation.
Nine years later, in November 1991, Krisinda sued the Defendants for $3.5 million
in damages for her birth-related injuries. The Defendants answered, raising the defense,
inter alia, that the three-year statute of repose contained in Tennessee’s Medical
Malpractice Act barred Krisinda’s action against them. See T.C.A. § 29-26-116(a)(3)
(1980). The Hospital, a governmental entity, raised the additional defense that Krisinda’s
claim was barred by her failure to comply with the notice provisions of the Tennessee
Governmental Tort Liability Act, which provisions were applicable to claims against
governmental entities at the time Krisinda’s cause of action arose. See T.C.A. §§ 29-20-
301, 29-20-302 (1980).1 Based on these defenses, the trial court granted the Defendants’
respective motions for summary judgment, and Krisinda appealed.
On appeal from the trial court’s order of dismissal, Krisinda, through her parents,
contends that the trial court erred in entering summary judgment in favor of the Defendants
1
Sections 29-2 0-30 1 an d 29 -20-302 were rep ealed in 19 87. See 1987 Tenn. Pub. Acts 405.
2
based on the foregoing defenses because operation of the cited statutes was tolled by
Krisinda’s disability of minority. In this regard, Tennessee Code Annotated section
28-1-106 provides that:
If the person entitled to commence an action is, at the
time the cause of action accrued, either within the age of
eighteen (18) years, or of unsound mind, such person, or his
representatives and privies, as the case may be, may
commence the action, after the removal of such disability,
within the time of limitation for the particular cause of action,
unless it exceed three (3) years, and in that case within three
(3) years from the removal of such disability.
T.C.A. § 28-1-106 (1980). Accordingly, this appeal requires us to consider, in turn, the
relationship between section 28-1-106, which extends the time in which minors or other
persons under a legal disability may commence a cause of action, and the statutes cited
by the Defendants, which purport to impose time limitations on the commencement of
certain actions.
I. Section 29-26-116: The Medical Malpractice Act’s Statute Of Repose
The statute of repose for medical malpractice actions, contained in section
29-26-116, provides that:
In no event shall any [medical malpractice] action be
brought more than three (3) years after the date on which the
negligent act or omission occurred except where there is
fraudulent concealment on the part of the defendant in which
case the action shall be commenced within one (1) year after
discovery that the cause of action exists.
T.C.A. § 29-26-116(a)(3) (1980). Based on the language of this statute, the Defendants
contend that, despite her disability of minority, Krisinda had only three years after the date
of her injury in which to bring this action.
This argument was rejected by this court’s prior unpublished decision in Adkins v.
Martin, slip op. at 6-9 (Tenn. App. Mar. 28, 1983), perm. app. denied C.R.O. (Tenn. June
27, 1983), which appears to require reversal of the judgment entered in favor of the
Defendants in this case. In Adkins, the plaintiff, a minor, suffered complications during
surgery when she became cyanotic, or suffered from a lack of oxygen. Adkins, slip op. at
3
2. As a result of this oxygen deficiency, the plaintiff suffered permanent brain damage and
was rendered non compos mentis. Id. More than three years after the surgery, the plaintiff
filed a medical malpractice action against her surgeon, the anesthetist, and the hospital.
Id. The defendants filed a motion for summary judgment on the ground that the suit was
barred by section 29-26-116, but the trial court denied the motion. Id. at 3.
This court affirmed, holding that section 29-26-116 did not supersede or suspend
the operation of section 28-1-106. Adkins, slip op. at 5. The court explained:
There are several compelling reasons why we are of the
opinion that § 29-26-116 does not take precedence over § 28-
1-106. First of all, the basic unfairness of rigidly enforcing a
statute of limitations against mentally incompetent persons is
recognized by the statutes of all 50 states and the District of
Columbia. See Brooks v. Southern Pacific Co., 466 P.2d 736,
738 n.1 (Ariz. 1970). See also 51 AmJur2d, Limitation of
Actions, § 186.
The legal disability statute of this state represents a
long-standing policy to protect potential causes of action of
minors during their period of minority, and of persons of
unsound mind during their period of mental incompetency, as
well. It first came into our code in 1858. Prior to the advent of
the Medical Malpractice Act of 1976, and the Tennessee
Products Liability Act of 1978, . . . no limitations were
attempted to be placed upon the rights of minors during their
minority, nor persons of unsound mind during their
incompetency, to enforce their causes of action.
Adkins, slip op. at 6-7. In accordance with this policy, this court held that the medical
malpractice action brought by the plaintiff, who was still under a mental disability, was not
barred by the three-year limitation period contained in section 29-26-116.
In so holding, this court relied on a previous decision of the Eastern Section of this
court, as well as a United States District Court opinion, which construed these statutes.
In Braden v. Yoder, 592 S.W.2d 896, 897 (Tenn. App. 1979), the court held that section
29-26-116(a) did not eliminate the special rights of minors under section 28-1-106 because
“[t]here is no legislative intent that such rights be eliminated and to do so would cause
harsh results to parties injured at an early age who are helpless to protect their rights.” In
Parlato v. Howe, 470 F. Supp. 996 (E.D. Tenn. 1979), the federal district court explained
4
the onerous burden that operation of the three-year statute of repose would have upon
minors in the absence of the legal disability statute:
Under Section 23-3415(a) [now section 29-26-116(a)], if an
injury is discovered within the three-year period, an adult is at
least in a position to protect himself by bringing his action
promptly. A minor, especially one who, like plaintiff here, is
injured at a very early age, is helpless to protect himself. If
Section 23-3415(a) is held to eliminate the legal disability
statute in medical malpractice cases, the minor could forever
lose his cause of action strictly through the neglect of others.
This burden upon minors would be so oppressive that the
Court cannot reasonably so construe Section 23-3415(a)
unless clear legislative intent appears.
Parlato, 470 F. Supp. at 999. On the subject of legislative intent, the court opined that:
Section 23-3415(a) was not intended to interfere with the
operation of the legal disability statute. The mere fact that a
new, and more restrictive, statute of limitations is passed does
not necessarily indicate that the legislature intended to
eliminate the special rights of minors. . . . Statutes of
limitations are usually phrased in absolute and general terms
and thus the failure of the legislature to exempt minors
specifically is not surprising. The legal disability statute
represents a long-standing policy of the State of Tennessee to
protect potential causes of actions by minors during the period
of their minority. See Gaugh v. Henderson, 39 Tenn. 628, 634
(1859). Unlike the discovery rule itself, the legal disability
statute does not represent a recent alteration in procedure and
is not in any way associated with the “medical malpractice
insurance crises” that concerned the legislature in passing
Section 23-3415(a). Harrison v. Schrader, [569 S.W.2d 822,
826 (Tenn. 1978)]. Before acknowledging the elimination of
such an established policy, this Court would require more
evidence of legislative intent than mere silence.
Id. at 998-99 (citation and footnote omitted).
Despite these decisions, and despite this court’s decision in Adkins, the Defendants
insist that the trial court’s judgment should be affirmed in this case because, since Adkins
was decided, several developments in the law have occurred which compel a different
result. We are not persuaded, however, because we note that most, if not all, of the
arguments presently advanced by the Defendants were considered and rejected by this
court in Adkins.
Citing principles of statutory construction, the Defendants argue that the plain
language of section 29-26-116 bars the present action, despite Krisinda’s minority. In
5
particular, the Defendants point to the language that “[i]n no event shall any such action
be brought more than three (3) years after the date on which the negligent act or omission
occurred.” T.C.A. § 29-26-116(a)(3) (1980) (emphasis added). The Defendants contend
that the language “[i]n no event” bars any claim brought more than three years after the
date of the negligent act, even in the event the claim is brought by a minor.
This specific argument, however, was considered and rejected by this court in
Adkins. There, the defendants urged a literal application of the “in no event” language
based on the decision of the Supreme Court of Tennessee in Harrison v. Schrader, 569
S.W.2d 822, 826 (Tenn. 1978). Despite the Supreme Court’s pronouncement in Harrison
that section 29-26-116(a) provided “an absolute three-year limit on the time within which
actions could be brought,” we concluded that the plaintiff’s claim was not barred. Adkins,
slip op. at 6.
In another statutory construction argument, the Defendants note that the ten-year
statute of repose contained in the Tennessee Products Liability Act contains an express
exception for minors. See T.C.A. § 29-28-103(a) (1980 & Supp. 1996).2 Citing this statute,
the Defendants argue that, had the legislature intended to create an exception for minors
in the Medical Malpractice Act, the legislature expressly would have done so.
Our opinion in Adkins, however, reveals that the court was aware of the exception
for minors contained in the Products Liability Act’s statute of repose. In contrast to the
Defendants’ present argument, we concluded that “the exclusion of minors from the effects
2
Section 2 9-28 -103 (a) provide s that:
Any action against a m anufacturer or se ller of a produc t for injury
to person or property caused by its defective or unreasonably dangerous
condition must be brought within the period fixed by §§ 28-3-104, 28-3-105,
28-3-202 and 47-2-725, but notwithstanding any exceptions to these
provisions it mu st be brou ght w ithin six (6 ) years of the date of injury, in any
event, the action m ust be bro ugh t within ten (10) years from the date on
which the product was first purchased for use or consumption, or with in
one (1) year after the expiration of the anticipate d life of the pro duc t,
whichever is the sho rter, excep t in the case of injury to minors whose action
must be brought within a period of one (1) year after attaining the age of
m ajority, whichever occu rs soone r.
T.C.A. § 29-2 8-103(a) (1980 & Supp . 1996) (em phase s added ).
6
of the ten-year ‘cap’ statute in the Products Liability Act” supported, rather than
undermined, our decision in Adkins. Adkins, slip op. at 8. In reaching this conclusion, we
relied on the Parlato decision, wherein the defendants similarly argued “that if the
legislature had desired to provide special exemption for minors in the medical malpractice
area, it would have so stated, as it did in the case of products liability actions.” Parlato v.
Howe, 470 F. Supp. 996, 999 (E.D. Tenn. 1979). In rejecting this argument, the federal
district court reasoned that:
[T]he exclusion of minors from the operation of the products
liability statute of limitations renders it extremely unlikely that
the legislature intended to include minors in the operation of
Section 23-3415(a) [now section 29-26-116(a)]. These two
statutes of limitations are similar in purpose and operation.
Both provide ceilings for the utilization of the discovery rule for
accrual of an action. Defendants have been unable to provide
the Court with a coherent reason why the legislature might
desire to treat minors differently under the Products Liability
Act than under the Medical Malpractice Act. The specific
reference to minors in the products liability statute might well
represent a fear by the legislature that the courts would
misconstrue its intent and unfairly subject minors to a restricted
statute of limitations. Interpreted in this fashion, the Products
Liability Act suggests that there is a general legislative policy
not to include minors in the operation of restrictive statutes of
limitations and thus supports the view that Section 23-3415(a)
was not intended to supersede the legal disability statute in the
case of minors. If the legislature had intended to include
minors in the restrictions of Section 23-3415(a), it would have
been a simple matter to say so.
Parlato, 470 F. Supp. at 999-1000 (quoted in Adkins, slip op. at 8).
The Defendants further argue that creating an exception for minors based on
section 28-1-106 subverts the legislative intent in enacting the three-year statute of repose
contained in section 29-26-116. This legislative intent was set forth in Harrison v.
Schrader, 569 S.W.2d 822 (Tenn. 1978), where the Supreme Court of Tennessee
explained that:
At the time the legislature passed the statute of
limitations eventually codified as Sec. 23-3415(a) [now section
29-26-116(a)], T.C.A., this state and the nation were in the
throes of what was popularly described as a “medical
malpractice insurance crisis.” Because of alleged increasing
numbers of claims, insurance companies had grown reluctant
to write medical malpractice policies. Where policies were
available, premiums had risen astronomically.
7
The legislature could have seen in this situation a threat
not only to the medical profession and its insurers, but also to
the general welfare of the citizens of this state. As liability
costs skyrocketed, so would the cost of health care.
Physicians would be encouraged to cease practice or
contemplate early retirement, and the number of available
physicians would decrease. The practice of “defensive
medicine,” spawned by fear of costly legal actions, would lead
to a lower quality of health care in general. These
considerations may or may not have been valid; however, it is
apparent that they were accepted by the legislature and
formed the predicate for its action.
In addition, it could be argued that to the extent that
safe estimates required by actuarial uncertainty, aggravated by
the extended period during which a physician could be subject
to potential liability, contributed to the increase in malpractice
insurance costs, “it is understandable that a legislature intent
upon halting such phenomenal increases would seek some
method to increase the certainty of such estimates,” i.e., an
absolute three-year limit on the time within which actions could
be brought. Note, Malpractice in Dealing with Medical
Malpractice??, 6 Mem. St. L. Rev. 437, 459 (1976).
Harrison, 569 S.W.2d at 826 (footnotes omitted). The Defendants contend that an
exception for minors would defeat this legislative intent because such an exception could
extend the period in which a minor may bring a medical malpractice action from three years
to up to nineteen years.
As before, however, this court’s opinion in Adkins reveals that the court was aware
of the legislative intent behind section 29-26-116 and that the court specifically rejected the
notion that creating an exception for minors would defeat this intent. In Adkins, we stated
that:
In holding that persons under mental disability should,
along with minors, be excepted from the application of T.C.A.
§ 29-26-116(a), we do not feel that we are in any way fueling
the fires of the “medical malpractice insurance crises” that
precipitated the enactment of § 29-26-116(a) in the first
instance.
Adkins, slip op. at 9.
The Defendants’ remaining, and perhaps strongest, argument for us to recede from
our holding in Adkins is that subsequent decisions in Tennessee have distinguished
between statutes of limitations and statutes of repose and have concluded that section
29-26-116 falls within the latter category. See Cronin v. Howe, 906 S.W.2d 910, 913
8
(Tenn. 1995); Bruce v. Hamilton, 894 S.W.2d 274, 276 (Tenn. App. 1993), overruled on
other grounds by Cronin v. Howe, 906 S.W.2d 910, 914 n.3 (Tenn. 1995). In Cronin v.
Howe, the Supreme Court of Tennessee explained that:
On its face, [section 29-26-116] recognizes the application of
the one-year statute of limitations and the discovery rule, but
places an absolute three-year limit upon the time within which
malpractice actions can be brought, which has been
characterized as “an outer limit or ceiling superimposed upon
the existing statute [of limitations].” Harrison v. Schrader, [569
S.W.2d 822, 826 (Tenn. 1978)]. . . .
[W]here the one-year statute of limitations governs the
time within which legal proceedings may be commenced after
a cause of action accrues, the three-year medical malpractice
statute of repose limits the time within which an action may be
brought, but it is entirely unrelated to the accrual of a cause of
action and can, in fact, bar a cause of action before it has
accrued. . . . That distinction has prompted courts to hold that
statutes of repose are substantive and extinguish both the right
and the remedy, while statutes of limitation are merely
procedural, extinguishing only the remedy.
Cronin v. Howe, 906 S.W.2d at 913 (emphases in original) (citing Bruce v. Hamilton, 894
S.W.2d at 276) (other citations omitted).
Upon reflection, we conclude that this distinction does not warrant a retreat from our
holding in Adkins. It is true that in Adkins we did not distinguish between statutes of
limitations and statutes of repose. Nevertheless, this court’s opinion in Adkins, as well as
other decisions upon which we relied, revealed that the courts were aware of the
significance of the limitation period contained in section 29-26-116. In Adkins, for example,
we noted that the three-year statute of limitations contained in section 29-26-116(a)(3) was
a “cap” which placed an “absolute,” “outside limit” on the time within which medical
malpractice actions could be brought. Adkins, slip op. at 4, 6 (citing Harrison v. Schrader,
569 S.W.2d 822, 826 (Tenn. 1978)). Similarly, in Braden v. Yoder, 592 S.W.2d 896, 897
(Tenn. App. 1979), the Eastern Section of this court recognized that, in enacting section
29-26-116(a)(3), “the legislature superimposed upon the existing limitation period . . . a
maximum three-year ceiling” which was “unrelated to the accrual of a cause of action
commencing not on discovery but rather at the date of the allegedly negligent act.” Despite
this court’s recognition of the distinction between the Medical Malpractice Act’s one-year
9
and three-year limitations periods, we still held that the three-year limitation period
contained in section 29-26-116(a)(3) was tolled by the plaintiff’s legal disability.
In a related argument, the Defendants contend that, since Adkins, a similar statute
of repose has been held to preclude a cause of action filed by a minor outside the statute’s
limitation period. In Pigg v. Barge, Waggoner, Sumner & Cannon, 1988 WL 92523, at
**5-6 (Tenn. App. 1988), the Middle Section of this court held that section 28-1-106 did not
preserve a minor’s claim arising out of deficient improvements to real property where the
statute of repose contained in Tennessee Code Annotated section 28-3-202 limited the
commencement of such actions to “within four (4) years after the substantial completion
of such an improvement.” T.C.A. § 28-3-202 (1980). In so holding, the court drew the
same distinction between statutes of repose and conventional statutes of limitation as did
the Supreme Court in Cronin v. Howe, 906 S.W.2d 910, 913 (Tenn. 1995). Pigg, 1988 WL
92523, at *3.
We conclude, however, that this court’s decision in Pigg is not inconsistent with the
court’s prior holdings in Adkins and Braden. In Pigg, the savings provisions of section
28-1-106 could not have saved the minor’s action because it was undisputed that no cause
of action ever accrued to be saved. There, the plaintiff’s injury occurred more than four
years after the substantial completion of the improvement to real property; thus, regardless
of the plaintiff’s disability of minority, no cause of action accrued which could have been
saved by section 28-1-106. Pigg, 1988 WL 92523, at *6. In fact, the Pigg court
distinguished the facts of that case from those presented in Braden and Parlato by pointing
out that, in those cases, “[n]o statute of repose had extinguished the defendants’ liability
at the time the injury occurred.” Pigg, 1988 WL 92523, at *5.3
3
The De fendants c orrectly note that the causes of action in Adkins, Braden, and Parlato all accrued
prior to enactment of the Medical Malpractice Act. The Parlato court cited this fact as an alternative reason
for denying the defendants ’ m otio ns for sum m ary jud gm ent, no ting that the “legislature does not have
unlimited power to cut off an ex isting caus e of action.” Parlato v. Howe, 470 F. Supp. 996, 1000 (E.D. Tenn.
1979). This fac tor, howe ver, appears to have played no part in this court’s decisions in Adkins and Braden.
10
In accordance with the foregoing analysis, we conclude that the trial court erred in
entering summary judgment in favor of the Defendants based on the Medical Malpractice
Act’s three-year statute of repose. Although the Defendants skillfully advance several
arguments for why this court should reexamine its holding in Adkins, after doing so, we
remain unconvinced that recent developments in this area of the law require us to depart
from prior precedent of this court. As we stated in Adkins:
[S]tatutes of limitation are creatures of the legislature. Up to
this time, the legislature has not seen fit to provide a cap for
the tolling effect of a permanent or long-term incapacity, such
as mental disability. We are not inclined to rewrite the statute.
However, if our holding in this case is deemed to present a
problem in the medical malpractice field, then it is the
prerogative of the legislature to remedy it.
Adkins, slip op. at 9.4
Despite this invitation, the legislature has not seen fit to change the rule of law
announced in Adkins and Braden. In this regard, we are mindful that:
The legislature is presumed to know the interpretation which
courts make of its enactments; the fact that the legislature has
not expressed disapproval of a judicial construction of a statute
is persuasive evidence of legislative adoption of the judicial
construction, . . . .
Hamby v. McDaniel, 559 S.W.2d 774, 776 (Tenn. 1977). After careful consideration, we
decline to disturb this court’s ruling in Adkins.
II. Sections 29-20-301 and 29-20-302: The Former Notice Provisions of the
Tennessee Governmental Tort Liability Act
On the other hand, prior decisions of this court require us to affirm the trial court’s
order of dismissal with regards to the Hospital based on the failure to meet the notice
requirements of former sections 29-20-301 and 29-20-302. At the time of Krisinda’s injury,
these statutes provided that:
29-20-301. Notice as condition precedent to
recovery. -- Any person having a claim for injury to person or
property against a governmental entity or its employee must
give written notice, as provided for in § 29-20-302, to said
4
As an aside, we wish to comm end counsel for the Defendants for bringing this unreported decision
to the attention of this court.
11
governmental entity as a condition precedent to any recovery
from said governmental entity or employees.
29-20-302. Time for filing notice -- Contents and
form of claim. -- (a) A claim against a governmental entity
shall be forever barred whether or not this statute be pled in
bar of such action, unless notice thereof is filed within one
hundred twenty (120) days after the cause of action arises
except where the cause of action arises out of injury resulting
from the operation of a motor vehicle.
(b) . . . .
(c) This section shall not be strictly construed where the
municipality should have reasonably apprised itself of the
occurrence of the incident or could have done so with the
exercise of proper diligence.
T.C.A. §§ 29-20-301, 29-20-302 (1980). The failure to meet these notice requirements is
“a valid and complete defense to any liability of a governmental entity which might
otherwise exist” by virtue of the Tennessee Governmental Tort Liability Act. T.C.A.
§ 29-20-303 (1980).
Citing Tennessee Code Annotated section 29-20-104, Krisinda, through her parents,
contends that the foregoing notice provisions are not applicable to minors. Section
29-20-104(b) provides that, “[n]otwithstanding any other provision of law to the contrary,
the provisions of §§ 28-1-106 -- 28-1-108 shall apply in causes of action arising pursuant
to this chapter.” T.C.A. § 29-20-104(b) (1980) (emphasis added).
While sections 29-20-104(b) and 28-1-106 effectively extend the time in which
minors may bring suit under the Governmental Tort Liability Act,5 the Eastern Section of
this court has held that injured minors are not immune from the Act’s former notice
requirements. Schorn v. Oak Ridge Schools, 1989 WL 109475, at *3 n.1 (Tenn. App.
1989). In so holding, the court relied on Robinson v. City of Memphis, 105 S.W.2d 101(Tenn. 1937), wherein the Supreme Court of Tennessee stated that:
[A] notice of this character, which is a prerequisite to the
bringing of a suit, is mandatory. The liability of the city is
statutory, and the statute is a limit on that liability; no
5
See Doe v. Coffee County Bd. of Educ., 852 S.W .2d 899, 903-04 n.2 (T enn . App . 1992); Collier v.
Mem phis Light, Gas & W ater Div., 657 S.W .2d 771, 775 (Tenn. App. 1983). In this regard, section 29-20-
305(b) provides that actions under the Governmental Tort Liability Act “must be comm enced within twelve (12)
m onths after the caus e of action arises.” T.C.A. § 29-20-30 5(b) (1980 & S upp. 1996).
12
exceptions as to persons is made in the statute and none can
be supplied by the courts. It imposes upon all persons,
whether minors or not, the obligation to serve such notice in
order to maintain an action. The liability of a city for injuries of
this character rests exclusively upon express or implied
provisions of the statute; it is therefore competent for the
Legislature to limit such liability or remove it entirely.
Robinson, 105 S.W.2d at 102.
In accordance with the court’s decision in Tucker v. Metropolitan Government, 686
S.W.2d 87 (Tenn. App. 1984), we conclude that the notice given in this case did not
comply with the foregoing statutory notice requirements. In Tucker, as in the present case,
the plaintiff argued that the defendant hospital had notice of an alleged incident of medical
malpractice through the plaintiff’s hospital records. Tucker, 686 S.W.2d at 91. By virtue
of the information contained in the hospital’s own records, the plaintiff insisted, the hospital
was reasonably apprised of the occurrence of the incident out of which the plaintiff’s claim
arose. Id. The court rejected this argument, reasoning that:
[T]he question arises as to what person in the governmental
entity must be “reasonably apprised.” We believe that the
intent of the legislature was to stipulate that even the less than
strict construction as to notice provision was to refer to the
same party who must receive written notice, that is, the chief
administrative officer. In the instant case, at the very least, the
chief administrative officer of [the hospital] would have to be
“reasonably apprised . . . of the occurrence of the incident” out
of which the claim arose. There is no evidence that the chief
administrative officer had any such knowledge merely by virtue
of the Plaintiff’s . . . medical records.
Id.
We likewise reject the argument in this case that Krisinda’s hospital records
reasonably apprised the Defendant Hospital of the occurrence of the alleged malpractice
incident. In support of this notice argument, Krisinda’s counsel points out that Krisinda’s
hospital records contain a notation by a treating pediatrician that seizures which Krisinda
suffered shortly after her birth were, in the pediatrician’s opinion, the result of “perinatal
asphyxia.” The record, however, contains no evidence that the chief administrative officer
or anyone else in authority at the hospital was apprised of this information. Accordingly,
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the trial court properly entered summary judgment in favor of the Hospital based on this
defense.
The trial court’s judgment in favor of the Hospital is affirmed; however, the judgment
in favor of Dr. Hammond and The Jackson Clinic is hereby reversed, and this cause is
remanded for further proceedings consistent with this opinion. Costs on appeal are taxed
to Dr. Hammond and The Jackson Clinic, for which execution may issue if necessary.
HIGHERS, J.
CONCUR:
CRAWFORD, P.J., W.S.
HAYES, J.
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