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§47.37 Statute of Repose

The Case: Calaway ex rel Calaway v. Schucker , 193 S.W.3d 509 (Tenn. 2005).

The Basic Facts: Plaintiff mother filed medical malpractice case for minor child for than three years after negligent act or omission. Defendant raised statute of repose defense.

The Bottom Line:

  • "Tennessee Code Annotated section 29-26-116:
    (a)(1) The statute of limitations in malpractice actions shall be one (1) year as set forth in § 28-3-104.

    (2) In the event the alleged 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. (3) In no event shall any such 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. (4) The time limitation herein set forth shall not apply in cases where a foreign object has been negligently left in a patient's body, in which case the action shall be commenced within one (1) year after the alleged injury or wrongful act is discovered or should have been discovered."
    193 S.W.3d at 514-15.
  • "We begin our analysis by noting the distinction between statutes of limitations and statutes of repose. A statute of limitations normally governs the time within which legal proceedings must be commenced after a cause of action accrues. A statute of repose, on the other hand, limits the time within which an action may be brought and is unrelated to the accrual of any cause of action. Jones v. Methodist Healthcare, 83 S.W.3d 739, 743 (Tenn. Ct. App.2001)." Id. at 515.
  • "A further distinction is that statutes of repose are substantive rather than procedural. 'Statutes of repose are substantive and extinguish both the right and the remedy while statutes of limitations are procedural, extinguishing only the remedy.' Id. Thus, a statute of repose typically
    does not bar a cause of action; its effect, rather, is to prevent what might otherwise be a cause of action from ever arising. . . . The injured party literally has no cause of action. The harm that has been done is damnum absque injuria-a wrong for which the law allows no redress. The function of the statute is thus rather to define substantive rights than to alter or modify a remedy.
    Rosenberg v. Town of North Bergen, [293 A.2d 662, 667 (N.J. 1972)] (emphasis in original). A statute of repose, however, does not always extinguish the cause of action before it accrues: ''Where the injury occurs within the [repose] period, and a claimant commences his . . . action after the [repose] period has passed, an action accrues but is barred. Where the injury occurs outside the [repose] period, no substantive cause of action ever accrues, and a claimant's actions are likewise barred.'' Penley, 31 S.W.3d at 184 (quoting Gillam v. Firestone Tire & Rubber Co., [489 N.W.2d 289, 291 (Neb. 1992)]). In short, '[s]tatutes of repose operate differently [from] . . . statutes of limitation[s]' because statutes of repose impose 'an absolute time limit within which action must be brought.' Penley, 31 S.W.3d at 184 (emphasis added)." Id.
  • "In light of the distinction between statutes of limitations and repose, we note that this Court has consistently characterized Tennessee Code Annotated section 29-26-116(a)(3) as a statute of repose. As early as 1978, Harrison v. Schrader, [569 S.W.2d 822, 824 (Tenn. 1978)], our first encounter with this statute, we described it as 'an absolute three-year limit upon the time within which malpractice actions, with two [express] exceptions, could be brought' and also as 'an outer limit or ceiling superimposed upon the existing statute [of limitations].' Cronin v. Howe, [906 S.W.2d 910, 913 (Tenn. 1995)], we stated that the statute 'places an absolute three-year limit upon the time within which malpractice actions can be brought.' And earlier this year, in Mills, 155 S.W.3d at 920, we stated that the statute of repose 'expresses a legislative intent to place an absolute three-year bar beyond which no medical malpractice right of action may survive.'" Id. at 515-16.
  • "We now expressly overrule the Bowers and Braden courts and hold that the plaintiff's minority does not toll the medical malpractice statute of repose. We do so not only on the basis of the clear language of the statute and our consistent characterizations of the medical malpractice statute of repose as an absolute three-year bar to such claims. We also stress our holding in Penley that the legal disability statute, Tennessee Code Annotated section 28-1-106, serves to toll only statutes of limitations and not statutes of repose. '[T]his section is only applicable to extend the running of a statute of limitations, and we will not interpret the legal disability statute to give it effect beyond the fair import of its terms.' Penley, 31 S.W.3d at 186. Further, '[w]here the General Assembly enacts some specific limitations period as part of an overall statutory scheme, these specific limitations will apply over more general provisions found elsewhere in the code.' Id. at 187 (citing Dobbins v. Terrazzo Mach. & Supply Co., [479 S.W.2d 806, 809 (Tenn. 1972)]). To accept the argument that the legal disability statute trumps the medical malpractice statute of repose 'would be to defeat the very purposes behind the enactment' of the latter. Id. We cannot, under the guise of judicial interpretation of the statute, in effect rewrite the law and thus substitute our own policy preferences for the Legislature's.FN2
    FN2 The dissent asserts that minority tolling is appropriate because the claim of a young minor could be eliminated before the minor has a meaningful opportunity to assert that claim or lose his or her cause of action through the neglect of others. However, it is not the role of this Court to rewrite the statute in order to remedy any perceived unfairness. The dissent's argument is best addressed to the Legislature."
    Id . at 517.

Other Sources of Note: Mills v. Wong , 155 S.W.3d 116 (Tenn. 2005) (medical malpractice statute of repose applies to persons of unsound mind).

Recent Cases: Crespo v. McCullough , No. M2007-02601-COA-R3-CV, 2008 WL 4767060 (Tenn. Ct. App. Oct. 29, 2008) (reversing summary judgment granted on basis of three-year statute of repose for medical malpractice claims, which the Tennessee Supreme Court interpreted to be applicable to minors in Calaway v. Schucker, 193 S.W.3d 509 (Tenn. 2005), finding application to minors whose unfiled claims existed at the time of the opinion violates the due process and equal protection rights of those minors); Huber v. Marlow, No. E2007-01879-COA-R9-CV, 2008 WL 2199827 (Tenn. Ct. App. May 28, 2008) (holding that because the statute of repose extinguished plaintiff's cause of action against the nonparty employee, the employer cannot be held vicariously liable for alleged medical negligence based solely on nonparty employee's actions).

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The foregoing is an excerpt from Day on Torts: Leading Cases in Tennessee Tort Law, published by John A. Day, Civil Trial Specialist, Fellow in the American College of Trial Lawyers, recipient of Best Lawyers in America recognition, Martindale-Hubbell AV® Preeminent™ rated attorney, and Top 100 Tennessee Mid-South Super Lawyers designee. Read John’s full bio here.

The book is now available electronically by subscription at The new format allows us to keep the book current as new opinions are released. BirdDog Law also has John's Tennessee Law of Civil Trial and Compendium of Tennessee Tort Reform Statutes available by subscription, as well as multiple free resources to help Tennessee lawyers serve their clients

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