Medical Malpractice Newsletter – Fall/Winter 2017 Issue

December 27th, 2017   •   Comments Off on Medical Malpractice Newsletter – Fall/Winter 2017 Issue   

How Long Does a Patient Have to Sue a Medical
Provider for Alleged Malpractice in Tennessee?

Physicians and other medical providers often wonder how much time must go by before a potential malpractice claim is time barred. Statutes of limitations and statutes of repose are set time periods that can preclude a potential claim due simply to the passing of time. These laws were passed by the legislature to provide medical providers some certainty as to their window of potential liability. In Tennessee, providers enjoy the protection of both a one-year statute of limitations and a three-year statute of repose. Thus, many claims are time barred after one year, and nearly all after three years. However, the issue of when a potential claim is time barred can be complicated. As in many areas of the law, there are exceptions and conditions that often make the analysis difficult.

One-Year Statute of Limitations

A statute of limitations is a law that delineates the amount of time in which a claim must be asserted after the claim arises or “accrues.” Tennessee Code Annotated § 29-26-116 states that the “statute of limitations in health care liability actions shall be one (1) year . . . .” As a general rule, a patient (or the patient’s next of kin) has one year from the date the cause of action “accrues” to file a claim against a medical provider before the statute of limitations expires.

A complicating factor is determining when the one-year statute of limitations begins to run, i.e. when the claim accrues. Sometimes the one-year period does not begin to run until well after the treatment at issue. In Tennessee, the statute of limitations does not begin to run until a patient knew, or reasonably should have known, the “occasion, the manner, and the means” by which the alleged breach of duty occurred, as well as the “identity” of the provider who allegedly caused the injury. Sometimes it is clear when a patient knew, or should have known, of these factors. However, other times the situation is unclear or disputed. In some cases, Tennessee courts have found that the one-year statute of limitations did not begin to run until long after the medical treatment at issue.

Other complicating factors include the age and mental condition of the patient. The one- year statute of limitations does not begin to run under Tennessee law until a patient reaches the age of majority (age 18). Thus, the limitations period could be much longer for certain claims, such as those against pediatricians and OB/GYNs who often treat minors. The limitations period also may not run during a patient’s mental incompetence.

Three-Year Statute of Repose

A statute of repose is an “absolute time limit” as to when claims must be asserted regardless of their “accrual.” Tennessee Code Annotated § 29-26-116 provides: “In no event shall any action be brought more than three (3) years after the date on which the negligent act or omission occurred . . . .” This three-year repose period begins to run from the time of the treatment at issue even if the patient may not have been aware of a potential claim. As a general rule, a patient (or the patient’s next of kin) has three years from the date of treatment to file a lawsuit against a medical provider before the statute of repose expires and extinguishes the claim.

The statute of repose has fewer exceptions than the statute of limitations. Unlike the statute of limitations, the statute of repose is not tolled during a patient’s minority. The three-year repose period begins to run even if the patient is under the age of majority (age 18). Likewise, a patient’s mental incompetency does not toll the three- year statute of repose.

However, there are exceptions to the statute of repose. For example, fraudulent concealment on the part of the medical provider tolls the statute of repose. Such action may include illicitly changing a medical record or misleading a patient to prevent suspicion of a claim. Another exception to the statute of repose is “where a retained foreign object has been negligently left in a patient’s body.” In such a case, the patient has one year from the date of when the object was discovered, or should have been discovered, to file a claim.

Pre-Suit Notice and Extending Statutes of Limitations and Repose

Another complicating factor is pre-suit notice. In Tennessee, patients (or the patient’s next of kin) are now required to provide written pre-suit notice of a potential lawsuit prior to actually filing it. Pre-suit notice must be sent to a medical provider within the one-year statute of limitations and the three-year statute of repose. If pre-suit notice is timely and adequately served, then both the statute of limitations and statute of repose are extended by 120 days. Thus, a patient would generally have one year plus 120 days to file a lawsuit within the statute of limitations, and three years plus 120 days to file within the statute of repose.

In sum, medical providers in Tennessee enjoy both a one-year statute of limitations and three-year statute of repose. However, it is not always easy to determine when these time periods begin and end. One thing medical providers can do to help ensure the commencement of the statutes is to document that the patient was well informed of the conditions and treatments. Also, medical providers cannot assume that a claim is extinguished by operation of law due to the statute of limitations or statute of repose. These defenses must be affirmatively asserted. Therefore, medical providers should promptly inform their insurance carriers and/or counsel upon receipt of any pre-suit notice letters, lawsuits, or other similar documents regardless of how long ago the treatment took place.

Medical Malpractice News at
Rainey  Kizer  Reviere & Bell plc

We are pleased to announce that Jerry D. Kizer, Jr., a founding member of the law firm, is celebrating 50 years of practicing law. During his five decades as a lawyer, Mr. Kizer has been inducted as a Fellow of the American College of Trial Lawyers, has been recognized by Best Lawyers in America© (Medical Malpractice Law, Defense) and Mid-South Super Lawyers (Tennessee), and has been named to the Top 100 Lawyers in Tennessee. Mr. Kizer has successfully handled countless cases and lectured on many issues related to healthcare and malpractice law. He has always focused on practicing law with high ethics and professionalism. Mr. Kizer continues in the full-time practice of law and serves as a Rule 31 Listed General Civil Mediator. When not practicing law, Mr. Kizer enjoys traveling and spending time with his family, which includes his wife (Martha) of 50 years, three daughters, and five grandchildren.