Picture of John Day

§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: 

Bentley v. Wellmont Health System, No. E2013-01956-COA-R3-CV, 2014 WL 1408171 (Tenn. Ct. App. April 10, 2014) (affirming that three-year statute of repose for medical malpractice cases is not tolled by plaintiff’s minority); Pratcher v. Methodist Healthcare Memphis Hosp., 407 S.W.3d 727 (Tenn. 2013) (medical malpractice statute of repose is an affirmative defense that must be raised in an answer, and a defendant may waive the defense entirely through undue delay in asserting it); Givens v. Josovitz, 343 S.W.3d 76 (Tenn. Ct. App. 2010) (upholding summary judgment on basis of three year statute of repose for medical malpractice claims and finding no basis for application of fraudulent concealment exception).

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).

After an accident, many injury victims and their families want more information on the accident and their legal rights. Consequently, many of them have found their way to these pages. While we are happy you are here, please understand Day on Torts: Leading Cases in Tennessee Tort Law was written to be a quick, invaluable reference for Tennessee tort lawyers. While the book provides the leading case for more than 300 tort law subjects and thousands of related case citations, it is not a substitute for personalized legal advice from a qualified lawyer.

Rather than researching these legal issues alone, we urge you to contact one of our award-winning lawyers who can sit down with you, review your case, answer your questions and clearly explain your rights and your options in a no-cost, no-obligation consultation. Our experienced attorneys handle all personal injury and wrongful death cases on a contingency basis, so we only get paid if we win. If for any reason you are unable to come to our office, we will gladly come to you.

To schedule an appointment, contact us online or call us at 615-742-4880 or toll-free at 866-812-8787.



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.

To order a copy of the book, visit www.dayontortsbook.com. John also blogs regularly on key issues for tort lawyers. To subscribe to the Day on Torts blog, visit www.dayontorts.com.

Client Reviews
Everything was great. You guys are a great representative. I was satisfied with everything. Truly appreciate John Day and his hard-working staff.
★★★★★
We thought that you did an excellent job in representing us in our lawsuit. We would recommend you to anyone. Mitch Deese
★★★★★
The Law Offices of John Day is, without a doubt, the best in Nashville! They treated me with the utmost respect and tended to my every need. No question went unanswered. I was always kept informed of every step in the process. I received phenomenal results; I couldn't ask for more. I would definitely hire the Law Offices of John Day again. Anthony Santiago
★★★★★
I would definitely recommend to anyone to hire John Day's law firm because everyone was helpful, made everything clear and got the job done. I am satisfied with how my case was handled. June Keomahavong
★★★★★
It's been a long battle but this firm has been very efficient and has done a remarkable job for me! I highly recommend them to anyone needing legal assistance. Everyone has always been very kind and kept me informed of all actions promptly. Linda Bush
★★★★★
I had a great experience with the Law Offices of John Day. The staff was very accommodating, and my phone calls/emails were always responded to in a timely manner. They made the entire process very easy and stress-free for me, and I had confidence that my case was in good hands. I am very happy with the results, and I highly recommend! Casey Hutchinson
★★★★★