In Tennessee One Year Healthcare Liability Action Statute of Limitations is Not Extended by Pre-Suit Notice When Dealing with GTLA Lawsuit

Analysis:  Last year the Tennessee Supreme Court decided another important case that interprets the Governmental Tort Liability Act (“GTLA”) in conjunction with other Tennessee statutes.  In this case the Tennessee Supreme Court found that the 120 day extension of time to file a healthcare liability action (formerly medical malpractice cause of action) when pre-suit notice is provided does not apply to GTLA lawsuits.  The Tennessee Supreme Court in Walton Cunningham v. Williamson County Hospital District et al, 405 S.W.3d 41 (Tenn. 2013) dealt with a medical malpractice claim that was filed 15 months after the claim accrued at the time of the death.  The plaintiffs relied upon T.C.A. § 29-26-121 that provides a 120 day extension of time beyond the one year statute of limitations to file suit after pre-suit notice is provided under the statute.  The pertinent part of T.C.A. § 29-26-121 provides as follows:

(c) When notice is given to a provider as provided in this section, the applicable statutes of limitations and repose shall be extended for a period of one hundred twenty (120) days from the date of expiration of the statute of limitations and statute of repose applicable to that provider...

The question in this case therefore was whether the extension found in T.C.A. § 29-26-121 applies to a GTLA healthcare liability claim (essentially a medical malpractice case against a governmental entity).  The statute of limitations for a GTLA claim is one year as explicitly provided in T.C.A. § 29-20-305(b) which provides as follows:

(b) The action must be commenced within twelve (12) months after the cause of action arises.

As a result, there is a conflict between the SOL of 12 months for a GTLA claim and 12 months + 120 days (with pre-suit notice) in the healthcare liability statute.  The GTLA is a specific statute where the government waives immunity in certain limited circumstances.  However, “because waiver of immunity is in derogation of the common law, any claim for damages brought under the GTLA must be in strict compliance with the terms of the statute.”  Cunningham at 43.  As a result, because the GTLA statute is very specific on the 12 month requirement, the Tennessee Supreme Court held that the 120 day extension provision in T.C.A. § 29-26-121 does not apply to GTLA claims and therefore the lawsuit must be brought within the 12 month time period.

As a result, if you are considering filing a claim against a governmental entity in Tennessee for medical malpractice, you cannot take advantage of the 120 day extension found in T.C.A. § 29-26-121.  If you are defending such a claim, do not assume the 120 day extension is allowed for the GTLA claim, because it is not.    

One other interesting issue that the Court really did not address (but it did hint about in a footnote) was whether the pre-suit notice requirements found in T.C.A. § 29-26-121 actually apply at all to a GTLA case.  In footnote number 3 the Court stated as follows:

Neither party has addressed the issue of the applicability of the sixty-day notice requirement in cases governed by the GTLA.  Although we have previously held that failure to comply with the sixty-day pre-suit notice requirement of section 29–26–121(a) may result in dismissal of the medical malpractice claim absent a showing of extraordinary cause, we have not previously addressed whether the sixty-day pre-suit notice is required in GTLA cases. Tenn.Code Ann. § 29–26–121(b); Myers v. AMISUB (SFH), Inc., 382 S.W.3d 300, 311–12 (Tenn. 2012).

As a result, it is certainly arguable (although I would not risk arguing this on appeal if it can be avoided) that the 60 day notice requirement does not apply to GTLA healthcare liability actions.  It seems to me that the sword should cut the same in both directions (the old “what is good for the goose is good for the gander” rule – and yes, I had to google “gander” because I never knew what that was).  If the court is not going to allow plaintiffs to take advantage of the extension of SOL time provided in the statute, then the statute should be able to be relied upon to dismiss an action that does not comply with the 60 day notice requirement in the very same statute.  Obviously, this could be modified by the Tennessee legislature to make clear that these provision do apply to GTLA claims, but this has not been done to date.  Due to the uncertainty, I would not take any risk and instead I would comply with the notice requirements under the “belt and suspenders” theory of safe law practice.  [That my friends, is the third idiom in this paragraph – can you spot them all?]