IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
July 11, 2012 Session
MARTIS J. KELLEY ET AL. v. CHATTANOOGA-HAMILTON COUNTY
HOSPITAL AUTHORITY ET AL.
Appeal from the Circuit Court for Hamilton County
No. 11 C 717 W. Neil Thomas, III, Judge
No. E2011-02665-COA-R3-CV-FILED-MAY 23, 2013
This is a medical malpractice1 action filed pursuant to the Tennessee Medical Malpractice
Act (“the TMMA.”) The plaintiffs are wife and husband. The sole defendant is a
governmental entity subject to the Governmental Tort Liability Act (“the GTLA”). The
defendant operates a hospital in Chattanooga. The complaint alleges that wife was a victim
of medical malpractice at the hospital in February 2010. On February 2, 2011, the plaintiffs
sent the notice required by Tenn. Code Ann. § 29-26-121(a) (2012), a part of the TMMA. On
June 3, 2011, the plaintiffs filed suit against the Hospital Authority. The Authority filed a
motion to dismiss pursuant to the provisions of Tenn. R. Civ. P. 12(6), arguing that the suit
was not timely filed because it was not filed within the one-year statute of limitations, Tenn.
Code Ann. § 29-20-305(b) (2012), set forth in the GTLA. The plaintiffs responded that the
period of limitations was extended by 120 days by Tenn. Code Ann. § 29-26-121(c) because
the plaintiffs had complied with the pre-suit notice requirements of Tenn. Code Ann. § 29-
26-121(a). The trial court dismissed the complaint as untimely filed. The plaintiffs appeal.
We affirm.
Tenn R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
Affirmed; Case Remanded
C HARLES D. S USANO, J R., P.J., delivered the opinion of the Court, in which D. M ICHAEL
S WINEY and J OHN W. M CC LARTY, JJ, joined.
Jimmy W. Bilbo and Brent J. McIntosh, Cleveland, Tennessee, for the appellants, Martis J.
Kelley and Joseph Kelley, Sr.
1
In 2012, following the filing of this action, the General Assembly amended Tenn. Code Ann. §§ 29-
26-115 to -122 and -202 of the TMMA. It replaced the “medical malpractice” language with “health care
liability.” We will use the old language since this suit was filed before those amendments.
Arthur P. Brock and William J. Rieder, Chattanooga, Tennessee, for the appellee,
Chattanooga-Hamilton County Hospital Authority.
OPINION
The plaintiffs present one issue:
Did the trial court err[] in dismissing a claim that was filed
within the . . . []120[] day statute of limitations under Tenn.
Code Ann. § 29-26-121(c) against a governmental entity
medical provider which has received the mandatory pre-suit
notice under Tenn. Code Ann. § 29-26-121(a)?
At oral argument, the plaintiffs correctly pointed out that “[t]his precise issue” was then
pending before the Supreme Court. We decided to hold this case pending a ruling by the
High Court in its case. The Supreme Court has now decided that case. The Supreme Court’s
decision is a complete answer to the issue raised in this case:
We hold that the 120-day extension provided by [Tenn. Code
Ann. §] 29-26-121(c) does not apply to the plaintiffs’ claim
brought under the GTLA.
Cunningham v. Williamson Cnty. Hosp. Dist. ____ S.W.3d ____, No. M2011-00554-SC-
S09-CV, 2013 WL 1912611 at *1 (Tenn., filed May 9, 2013). In other words, the one-year
statute of limitations in the GTLA, Tenn. Code Ann. § 29-20-305(b), applies to the claim
filed by the plaintiffs in this case because Tenn. Code Ann. § 29-26-121(c), wherein the 120-
day extension is found, “fails to evince an express legislative intent to extend the statute of
limitations in GTLA cases.” Id. at *6.
The judgment of the trial court is affirmed. Costs on appeal are taxed against the
plaintiffs, Martis J. Kelley and Joseph Kelley, Sr. This case is remanded to the trial court,
pursuant to applicable law, for the collection of court costs assessed below.
__________________________________________
CHARLES D. SUSANO, JR., PRESIDING JUDGE
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