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Analysis: The statute of limitations for a medical
malpractice cause of action (now known as a “healthcare liability action” due to recent
changes in the Tennessee statutes) is one year as established by T.C.A. § 29-26-116. If the alleged injury is not discovered
within the one year period then the period of limitations is one year from the
date of the discovery of the alleged injury (this is known as the “discovery
rule” which is applied to many different statutes of limitations in Tennessee). However, no cause of action can be brought
greater than three years after the date of the negligent act or omission except
when there is fraudulent concealment by the defendant. If there is fraudulent concealment then the
case must be commenced within one year after the discovery that the cause of
action exists. This three year time
period is considered a statute of repose under Tennessee law and the “discovery
rule” does not save a claim from being barred under this statute of repose
under the plain language of this statute (unless fraudulent concealment is
present as stated in the statute).
There is one other exception to the
limitation time periods identified in this statute - when a foreign object is
negligently left in the patient’s body.
In this circumstance the statute of limitations is one year from the
time the alleged injury is discovered or should have been discovered. This exception also applies to the three year
statute of repose based on the plain language in the statute. (See also Bloomer v.
Wellmont Holston Valley Medical Center, 299 F.Supp.2d 810 (E.D.Tenn. 2004)).
T.C.A. § 29-26-116(a) in totality provides
as follows:
(a)(1) The statute
of limitations in health care liability 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-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.
It is important to note that there are
additional significant requirements for pre-suit notice under T.C.A. § 29-26-121 that can bar a
claim if not properly complied with prior to filing suit. The pre-suit notice requirements provide very
important defenses to medical care providers for medical malpractice causes of
actions because Tennessee courts have strictly construed these requirements. Additionally, the statute of limitations and
statute of repose for medical malpractice causes of action need to be carefully
analyzed in any case to determine if they bar the claim.
Follow me on Twitter at @jasonalee for updates from the Tennessee Defense Litigation
blog.
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