Do the Health Care Liability Action pre-suit notice requirements and tolling provisions found in T.C.A. § 29-26-122 apply to a GTLA (Governmental Tort Liability Act) case in Tennessee?

Brief Summary:  In a Tennessee GTLA Health Care Liability Action, the statute of limitations tolling provisions found in T.C.A. § 29-26-121 for the pre-suit notice requirements do not apply.  A Health Care Liability Action brought under the GTLA must therefore be filed within the one year statute of limitations with no tolling available under this statute.

Analysis:  In Betty Lou Lawing v. Greene County EMS, No. E2011-01201-COA-R9-CV, 2012 WL 6562155 (Tenn. Ct. App. December 17, 2012) the Tennessee Court of Appeals discussed the Health Care Liability Action (Medical Malpractice) pre-suit notice requirements and their applicability in a GTLA case (the Tennessee Governmental Tort Liability Act can be found in T.C.A. § 29-20-101 et seq.).  In the Lawing case there was an alleged medical malpractice event on July 8, 2009 that resulted in an injury.  Notice pursuant to T.C.A. § 29-26-121 was provided on July 2^nd, 2010, which was within the one year statute of limitations.  The lawsuit was then filed on October 27, 2010, outside of the one year statute of limitations but within the 120 day tolling provision contained in T.C.A. § 29-26-121 (the statute provides a 120 day extension of the one year statute of limitations when notice is provided to the opposing party within the one year statute of limitations).  The question, therefore, was whether the plaintiff could take advantage of the tolling provisions found in T.C.A. § 29-26-121 for this Health Care Liability Action brought under the GTLA.

The Tennessee Supreme Court has previously held that claims against governmental entities “must be brought in strict compliance with the GTLA, and that our courts have thus held that the savings statute as well as joinder provisions in the comparative fault statute do not operate to extend the statute of limitations in the GTLA because the legislature did not expressly provide that they would apply to claims under the GTLA”.  Lawing at 2 (citing Lynn v. City of Jackson, 63 S.W.3d 332 (Tenn. 2001); Daniel v. Hardin County General Hospital, 971 S.W.2d 21 (Tenn. Ct. App. 1997)) (Note that T.C.A. § 20-1-119 was amended by the legislature in 1999 after the Daniel decision to explicitly apply the comparative fault joinder provisions to GTLA cases – however it took a specific act of the Tennessee legislature to make this clear as required under the GTLA). 

As a result, in the Lawing case the Tennessee Court of Appeals found that the tolling provisions within T.C.A. § 29-26-121 for Health Care Liability Actions (medical malpractice cause of actions) do not apply to extend the statute of limitations beyond one year.  This is because the Tennessee legislature did not expressly state that T.C.A. § 29-26-121 applied to GTLA cases.  The court also interestingly went on to also state that the notice provisions contained within T.C.A. § 29-26-121 do not apply to GTLA claims.  The court specifically stated that, "we follow the rationale and holdings in Nance, Goodman and Daniel, and hold that the tolling provision does not apply and neither does the notice provisions contained in Tenn. Code Ann. § 29–26–121."  Under this reasoning, apparently the notice provisions found in T.C.A. § 29-26-121 where the potential defendant must be provided notice by the plaintiff 60 days prior to suit, does not apply in a GTLA case.    

This is an important decision to review and consider carefully if you handle any Health Care Liability Action case brought under the GTLA.  GTLA claims have strict compliance requirements and there is a real risk of missing the requirements unless you carefully analyze the statutes and case law for GTLA claims.  Further, the holding in the Lawing case that the notice requirements found in T.C.A. § 29-21-121 do not apply to GTLA claims, is a scary holding to rely upon, at best.  It was basically dicta added at the end of the opinion.  The case was not about whether notice to the defendant was provided prior to the one year statute of limitations, it clearly was.  As of this time, this dicta holding is only found in an unreported Tennessee Court of Appeals decision and I would not want to rely upon this holding to guide any decision to not provide pre-suit notice to the defendant under T.C.A. § 29-26-121 for a GTLA Health Care Liability Action.  It would keep me up at night to rely on this part of the opinion because there is certainly a chance for reversal by the Tennessee Supreme Court or even disagreement by another Tennessee Court of Appeals decision.