Walton Cunningham & Phyllis Cunningham ex rel. Phillip Walton Cunningham v. Williamson County Hospital District

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
October 11, 2011 Session

WALTON CUNNINGHAM & PHYLLIS CUNNINGHAM EX REL. PHILLIP
WALTON CUNNINGHAM v. WILLIAMSON COUNTY HOSPITAL
DISTRICT ET AL.

Appeal from the Circuit Court for Williamson County
No. 2010119 James G. Martin, III, Judge

No. M2011-00554-COA-R9-CV - Filed November 30, 2011

Defendants, Williamson Medical Center and five of its employees, appeal from the denial
of their motion to dismiss this medical malpractice action. They contend the action is time
barred because it was filed more than one year after the cause of action accrued, in violation
of the one year statute of limitations applicable to Tennessee Governmental Tort Liability
Act actions, codified at Tennessee Code Annotated § 29-20-305(b). The trial court, however,
found that the action was timely filed because it was commenced within the 120-day
extension afforded to the plaintiffs pursuant to an amendment to the Tennessee Medical
Malpractice Act, codified at Tennessee Code Annotated § 29-26-121(c) (2009). We have
determined that the amendment codified at Tennessee Code Annotated § 29-26-121(a)-(c)
applies, notwithstanding the one-year statute of limitations provision under the Governmental
Tort Liability Act, that the plaintiffs’ compliance with the pre-suit notification provision in
Tennessee Code Annotate § 29-26-121(a) extended the statute of limitations by 120 days, and
that this action was timely filed within the 120-day extension. Therefore, were affirm.

Tenn. R. App. P. 9 Interlocutory Appeal; Judgment of the Circuit Court Affirmed

F RANK G. C LEMENT, J R., J., delivered the opinion of the Court, in which A NDY D. B ENNETT
and R ICHARD H. D INKINS, JJ., joined.

Bryan Essary and James Sperring, Nashville, Tennessee, for appellants, Williamson County
Hospital District, d/b/a Williamson Medical Center, Karen Christopher, R.N., C. Atkins,
R.N., Camela McCullough, NT, Cary Ralph, LPH, Jane Doe, CNT, and Jane Doe, R.N.

Philip N. Elbert and Elizabeth S. Tipping, Nashville, Tennessee, for the appellees, Walton
Cunningham and Phyllis Cunningham, individually and as surviving parents of Phillip
Walton Cunningham, deceased.
 OPINION

This is a medical malpractice action filed by Plaintiffs, Walton and Phyllis
Cunningham, against Williamson County Hospital District, d/b/a Williamson Medical
Center, and five of its employees (collectively “Defendants”). Plaintiffs allege that
Defendants proximately caused the death of their 25-year-old son, Phillip Cunningham,
because, in spite of him being at high risk of aspiration and choking due to the fact he had
cerebral palsy, two nurses administered a full dose for Fleet Phospho-soda through a
nasogastric tube more rapidly than the doctor ordered and failed to remain in his room to
monitor his condition. The complaint further alleges that not long thereafter, and despite the
fact that Phillip would inevitably suffocate if he was laid flat after administration of the Fleet
Phospho-soda, a different nurse and a nurse technician came in his room to change the bed
linens and, in doing so, they laid Phillip flat on his back at which time he began to choke and
suffocate. They further allege that his mother, who was in the room, cried out for them to
take immediate curative action, however, instead of calling a Code Team for an immediate
response, they delayed the necessary response by looking for one of the nurses who had
administered the Fleet Phospho-soda so she could examine Phillip and determine the
appropriate response. Plaintiffs further allege that, as a result of the negligent acts and
omissions of Defendants, their son suffered a severe anoxic brain injury, aspiration
pneumonia, sepsis, and cerebral edema, from which injuries he died eight days later, on
November 25, 2008.

This action was commenced with the filing of the initial complaint on March 12,
2010, which was more than one year but less than sixteen months after Phillip’s death.1 After
the filing of responsive pleadings, motions, and amended pleadings, which are not germane
to the issue on appeal, Defendants filed a motion to dismiss Plaintiffs’ claims as time barred
pursuant to the one-year statute of limitations in the Governmental Tort Liability Act,
Tennessee Code Annotated § 29-20-305(b). Plaintiffs responded to the motion contending
that the one-year limitation was extended by 120 days, pursuant to Tennessee Code
Annotated § 29-26-121(c) (2009), because they provided the requisite pre-suit written notice
to Defendants pursuant to Tennessee Code Annotated § 29-26-121(a) prior to the running of
the one-year limitation period, and the complaint was filed within the 120-day extension.
Defendants countered, insisting that the 120-day extension provided in Tennessee Code

1
Notice of the claim was provided to the Defendants Williamson Medical Center, Karen Christopher,
R.N., and Cary Ralph, LPN, on November 14, 2009. Notice of the claim was provided to Defendants C.
Atkins, R.N., Camela McCullough, NT, Jane Doe, CNT, and Jane Doe, R.N., on November 16, 2009, after
delivery was refused on November 13, 2009. Plaintiffs also complied with the good faith certificate
requirement codified at Tennessee Code Annotated § 29-26-122.

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Annotated § 29-26-121(c) (2009) was not applicable because the General Assembly had not
explicitly stated that it applied to claims governed by the Governmental Tort Liability Act.

The trial court denied Defendants’ motion to dismiss stating that “in the absence of
any authority expressly addressing the interplay between the statute of limitations within the
Governmental Tort Liability Act and the effect, if any, of the recent amendments to the
Tennessee Medical Malpractice Act that could extend the statute of limitations within the
[GTLA] . . . the Motion to Dismiss . . . should be denied.”2 Defendants filed a timely motion
for an interlocutory appeal, pursuant to Rule 9 of the Tennessee Rules of Appellate
Procedure, which the trial court and this court granted.

A NALYSIS

The issue in this appeal, which is a matter of first impression, is whether the provision
of the Tennessee Medical Malpractice Act codified at Tennessee Code Annotated § 29-26-
121(c) (2009) applies to claims filed against governmental entities and their employees under
the Tennessee Governmental Tort Liability Act, or whether the statute of limitations
provision stated therein, at Tennessee Code Annotated § 29-20-305(b), applies.

The issue presented is a matter of statutory interpretation, which is reviewable as a
matter of law pursuant to the de novo standard without any presumption of correctness. In
re Estate of Tanner, 295 S.W.3d 610, 613 (Tenn. 2009) (citing Gleaves v. Checker Cab
Transit Corp., 15 S.W.3d 799, 802 (Tenn. 2000); Myint v. Allstate Ins. Co., 970 S.W.2d 920,
924 (Tenn. 1998)).

Well-defined precepts exist when dealing with statutory interpretation. Id. The
primary objective is to carry out the legislative intent without broadening or restricting a
statute beyond its intended scope. Id. (citing Houghton v. Aramark Educ. Res., Inc., 90
S.W.3d 676, 678 (Tenn. 2002)). In construing legislative enactments, we presume that every
word in a statute has meaning and purpose and should be given full effect if the obvious
intention of the General Assembly is not violated by so doing. Id. at 614 (citing In re C.K.G.,
173 S.W.3d 714, 722 (Tenn. 2005)). When a statute is clear, we apply the plain meaning
without complicating the task. Id. (citing Eastman Chem. Co. v. Johnson, 151 S.W.3d 503,
507 (Tenn. 2004)). Our obligation is simply to enforce the written language Id. (citing Abels
ex rel. Hunt v. Genie Indus., Inc., 202 S.W.3d 99, 102 (Tenn. 2006)). It is only when a statute
is ambiguous that we may reference the broader statutory scheme, the history of the

2
Defendants included other grounds for dismissal in their motion; however, the trial court only
addressed Defendants’ statute of limitations argument, and the other grounds are not at issue in this
interlocutory appeal.

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legislation, or other sources. Id. (citing Parks v. Tenn. Mun. League Risk Mgmt. Pool, 974
S.W.2d 677, 679 (Tenn. 1998)). Further, the language of a statute cannot be considered in
a vacuum, but “should be construed, if practicable, so that its component parts are consistent
and reasonable.” Marsh v. Henderson, 424 S.W.2d 193, 196 (Tenn. 1968). Any interpretation
of the statute that “would render one section of the act repugnant to another” should be
avoided. Tenn. Elec. Power Co. v. City of Chattanooga, 114 S.W.2d 441, 444 (Tenn. 1937).
We also must presume that the General Assembly was aware of any prior enactments at the
time the legislation passed. Id. (citing Owens v. State, 908 S.W.2d 923, 926 (Tenn.1995)).

T HE INTERPLAY OF T WO A CTS

The issue presented here arises from the fact that this cause of action is subject to two
statutory schemes. It is subject to the Tennessee Medical Malpractice Act, as amended in
2008 and 2009, because the cause of action arose in November of 2008 and notice of the
claim was given to the Defendants in November 2009, and at issue is whether health care
providers employed by a Tennessee hospital deviated from the applicable standard of care
and as a proximate result of their negligent acts or omissions the patient, Phillip
Cunningham, suffered injury. This cause of action is also subject to the relevant provisions
of the Tennessee Governmental Tort Liability Act because Williamson Medical Center is
owned and operated by Williamson County through the Williamson County Hospital District.

In May 2008, the Tennessee Medical Malpractice Act was amended to add certain
requirements to parties filing medical malpractice actions after October 1, 2008. See 2008
Tenn. Pub. Acts 434-38. The first requirement was that written notice of the claim be
provided to each prospective defendant in the action prior to the filing of the action. Tenn.
Code Ann. § 29-26-121(a) (2008) (stating that a claimant shall give “written notice of the
potential claim to each health care provider against whom such potential claim is made at
least sixty (60) days before the filing of a complaint based upon medical malpractice in any
court of this state”). Subsection (c) of § 29-26-121 (2008) provided that if the pre-suit notice
was provided then “the applicable statutes of limitations and repose 3 shall be extended up
to a period of 90 days.” Tenn. Code Ann. § 29-26-121(c) (2008). The Medical Malpractice
Act was also amended to require that a certificate of good faith be filed within 90 days of the
filing of any medical malpractice action in which expert testimony was required by
Tennessee Code Annotated § 29-26-115. Tenn. Code Ann. § 29-26-122(a) (2008). These

3
Tenn. Code Ann. § 29-26-116(a)(1) states that the statute of limitations for medical malpractice
actions shall be one year as set forth in Tenn. Code Ann. § 28-3-104.

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amendments took effect October 1, 2008, and applied to “all actions filed on or after that
date, the public welfare requiring it.” 2008 Tenn. Pub. Acts 438, § 3.4

In 2009, the General Assembly again amended the Medical Malpractice Act.5 See
2009 Tenn. Pub. Acts 472-75. The pre-suit notice requirement was maintained,6 however,
subsection (c) was amended to the following: “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.” Tenn. Code Ann. § 29-26-
121(c). The changes to Tennessee Code Annotated § 29-26-121 took effect and applied to
notice given on or after July 1, 2009. 2009 Tenn. Pub. Acts 474, § 4.7 The effect of the 2009
amendments was that the applicable statutes of limitations and repose for medical
malpractice claims may extend to sixteen months from the accrual of the cause of action. See
Tenn. Code Ann. § 29-26-121(a)-(c) (2009).

Prior to the enactment of the Governmental Tort Liability Act, governmental entities
were generally immune from liability based upon the concept of sovereign immunity. Sutton
v. Barnes, 78 S.W.3d 908, 913 (Tenn. Ct. App. 2002) (citing Williams v. Memphis Light, Gas
and Water Div., 773 S.W.2d 522, 523 (Tenn. Ct. Ap. 1988)). The Governmental Tort
Liability Act, codified at Tenn. Code Ann. § 29-20-101, et seq., waives absolute sovereign
immunity for governmental entities under certain limited conditions. Id. “The GTLA’s
waiver of immunity is ‘narrowly confined in its scope.”’ Id. (quoting Doyle v. Frost, 49
S.W.3d 853, 858 (Tenn. 2001); citing Tenn. Code Ann. § 29-20-201(c) (2000) (stating “any
claim for damages must be brought in strict compliance with the terms of this chapter)). The
Act also contains a statute of limitations, stating that an action against a governmental entity
“must be commenced within twelve (12) months after the cause of action arises.” Tenn. Code
Ann. § 29-20-305(b).

4
However, “[f]or purposes of the administrative office of the courts developing a form Certificate
of Good Faith,” the Act took effect “upon becoming law.” 2008 Tenn. Pub. Acts 438, § 3.
5
Additional and substantial changes were also made to the Medical Malpractice Act in 2011 with
the enactment of the Tennessee Civil Justice Act of 2011. See 2011 Tenn. Pub. Acts 1221-1225. Those
changes, however, went into effect after the commencement of this action.
6
Subsection (a) now stated: “Any person, or that person’s authorized agent, asserting a potential
claim for medical malpractice shall give written notice of the potential claim to each health care provider
who will be a named defendant at least sixty (60) days before the filing of a complaint based upon medical
malpractice in any court of this state.” Tenn. Code Ann. § 29-26-121(a) (2009).
7
Notice in this action was given in November 2009, and, therefore the 2009 amendments to the
Medical Malpractice Act are the applicable version of the statute.

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 Defendants contend the 120-day extension of the statute of limitations for medical
malpractice actions does not apply to claims filed under the Governmental Tort Liability Act.
Instead, they insist the limitation is one year as stated in Tennessee Code Annotated § 29-20-
305(b). Defendants’ contention is based on the fact that the General Assembly did not
expressly state that Tennessee Code Annotated § 29-26-121 (2009) applies to claims filed
under the Governmental Tort Liability Act. We have determined that it was the express intent
of the General Assembly that the 2008 and 2009 amendments shall apply to all medical
malpractice actions including claims filed under the Governmental Tort Liability Act. This
is evident from the stated purpose in both the 2008 Public Act, which stated that the
amendments “shall apply to all actions filed on or after [July 1, 2008], the public welfare
requiring it,” and the 2009 Public Act, which stated that Tennessee Code Annotated § 29-26-
121 “shall take effect and apply to notice given on or after July 1, 2009, in all medical
malpractice actions. . . .” See 2008 Pub. Acts 919, § 3; 2009 Pub. Acts 474, § 4. This,
however, is not the only reason we draw this conclusion, as we explain below.

In two recent decisions, Brandon v. Williamson Medical Ctr., 343 S.W.3d 784 (Tenn.
Ct. App. 2010), and Martins v. Williamson Medical Ctr., No. M2010-00258-COA-R3-CV,
2010 WL 4746238 (Tenn. Ct. App. Nov. 22, 2010), this court determined that the 2008
amendments apply in malpractice actions filed against governmental entities. Ironically,
Williamson Medical Center was a defendant in both cases.

The opinion that is directly pertinent to the issue here, Martins v. Williamson Medical
Ctr., addressed the pre-filing notice requirement in Tenn. Code Ann. § 29-26-121(a).
Martins, 2010 WL 4746238, at *1. The complaint in Martins was filed on July 14, 2009,
accordingly, the 2008 amendments to the medical malpractice act were in effect prior to the
commencement of that action.8 The Martins filed suit against Williamson Medical Center
without having provided the pre-suit notification mandated by Tennessee Code Annotated
§ 29-26-121(a) or a certificate of good faith as required by Tennessee Code Annotated § 29-
26-122. Id. at *1. Williamson Medical Center filed a motion to dismiss the Martins’ medical
malpractice claim on the grounds that the Martins’ failed to comply with the 2008
amendments to the Malpractice Act, specifically that they failed to provide evidence of
compliance with the pre-suit notice requirements as required by Tennessee Code Annotated
§ 29-26-121(a), and that they failed to file a certificate of good faith pursuant to Tennessee
Code Annotated § 29-26-122(a). Id. The trial court found that the complaint stated a claim
for medical malpractice, that the Medical Malpractice Act as amended in 2008 applied to the
action filed against Williamson Medical Center, and that due to the Martins’ failure to
comply with the 2008 requirements, the complaint should be dismissed. Id. The Martins

8
The incident giving rise to the action occurred on July 18, 2008. Martins, 2010 WL 4746238, at *1.

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appealed contending that the complaint set forth a claim for ordinary negligence and,
therefore, was not subject to the requirements of the Medical Malpractice Act. Id. This court
determined that the complaint alleged a claim for medical malpractice; therefore, the Martins
were required to provide pre-suit notice and a certificate of good faith as mandated by
Tennessee Code Annotated §§ 29-26-121(a)-(b), 122(a). Id. at *3-4. Because the Martins
failed to comply with the 2008 amendments to the Medical Malpractice Act, dismissal of the
action was proper, notwithstanding the fact the action was also governed by the
Governmental Tort Liability Act. Id.

In Brandon v. Williamson Medical Ctr., this court affirmed the dismissal of the
plaintiff’s complaint for failure to file a certificate of good faith as required by Tennessee
Code Annotated § 29-26-122. Brandon, 343 S.W.3d at 790-91. Although the plaintiff timely
provided the pre-suit notice of the potential claim for medical malpractice and she waited 60
days before filing her complaint, the plaintiff, acting pro se, did not provide a certificate of
good faith. Id. at 786. Williamson Medical Center subsequently filed a motion to dismiss on
the ground that the plaintiff failed to file a certificate of good faith as and when required by
Tennessee Code Annotated § 29-26-122.9 Id. at 787. The trial court granted the motion to
dismiss.10 Id. On appeal, this court affirmed finding that the plaintiff failed to comply with
Tennessee Code Annotated § 29-26-122 (2008). Id. at 790-91.

While the above cases do not directly address the 120-day extension in Tennessee
Code Annotated § 29-26-121(c), the 2008 amendments to the Medical Malpractice Act,
which created the pre-suit notice requirement and the good faith certificate requirement, were
applied to claims against governmental entities. Despite this, Defendants insist the 120-day
extension does not apply in this case because Williamson Medical Center is a governmental
entity. In support of this position, Defendants point to this court’s 2002 opinion in Sutton v.
Barnes, 78 S.W.3d 908 (Tenn. Ct. App. 2002). The issue in Sutton was whether the discovery
rule, which provides “that the applicable statute of limitations begins to run when the
plaintiff discovers, or in the exercise of reasonable care should have discovered, that an
injury was sustained as a result of wrongful conduct by the defendant,” applied to actions
arising under the Governmental Tort Liability Act. Id. at 912. In determining whether the
discovery rule applied to claims arising under the Governmental Tort Liability Act, this court

9
When Brandon was filed, Tenn. Code Ann. § 29-26-122(a) (2008) required the filing of a certificate
of good faith within 90 days of the filing of the complaint. Tennessee Code Annotated § 29-26-122(a) was
amended effective July 1, 2009, and now requires the filing of a certificate of good faith contemporaneous
with the complaint. 2009 Tenn. Pub. Acts 475, § 2.
10
The plaintiff, who had at this time retained counsel, attempted to file a certificate of good faith with
a motion to enlarge the time for filing under Tennessee Rule of Civil Procedure 6.02. Brandon, 343 S.W.3d
at 787.

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identified earlier cases where “courts have refused to apply statutes and rules to cases arising
under the GTLA if application of the particular statute or rule would effectively expand the
statute of limitations period set forth in [Tennessee Code Annotated] § 29-20-305(b).” Id. at
913-14 (citing Williams, 773 S.W.2d at 523 (holding savings statute did not apply to GTLA
actions); Daniel v. Hardin County General Hosp., 971 S.W.2d 21 (Tenn. Ct. App. 1997)
(holding comparative fault joinder statute does not apply to GTLA actions)). This court also
noted the decision of the Supreme Court in Doyle v. Frost, 49 S.W.3d 853 (Tenn. 2001), in
which the court held that the relation back doctrine set forth in Tennessee Rule of Civil
Procedure 15.03 applied to actions governed by the Governmental Tort Liability Act. Id. at
915. The court reasoned that the discovery rule applied because “[u]nlike the statutes at issue
in Williams, Nance11 and Daniel, application of the discovery rule would not expand the 12-
month period in which a plaintiff has to file suit under the GTLA.” Id. at 916-17.

We find Sutton and the cases cited therein distinguishable and, therefore, not
controlling. First, each of the cases was decided prior to the 2008 and 2009 amendments to
the Medical Malpractice Act. Second, we have determined that the General Assembly
expressly mandated that the 2008 and 2009 amendments to the Medical Malpractice Act
were to have universal application to all medical malpractice actions, including those against
governmental entities. This is evident from the express declaration by the General Assembly
that the stated purpose of the 2008 amendments was that they “shall apply to all actions filed
on or after [October 1, 2008], the public welfare requiring it.” See 2008 Tenn. Pub. Acts
438, § 3 (emphasis added). The General Assembly was equally clear when it adopted the
minor changes in the 2009 amendments stating “this act shall take effect and apply to notice
given on or after July 1, 2009, in all medical malpractice actions, . . .” 2009 Tenn. Pub. Acts
475, § 4. We find these clear and concise expressed declarations by the General Assembly
unequivocal. Further, the statute at issue itself, states “When notice is given to a provider as
provided in this section, the applicable statutes of limitation shall be extended for a period
of one hundred twenty days.” Tenn. Code Ann. § 29-26-121(c) (2009).

As for Defendants’ other contentions on appeal, we find them unpersuasive, and, for
one of the Defendants, contrary to its earlier positions. Williamson Medical Center
affirmatively asserted in Martins and Brandon that amendments to the Medical Malpractice
Act apply to claims against governmental entities; however, here Defendants would have us
carve out one subsection from a comprehensive statutory scheme. We decline to do so

11
Nance v. City of Knoxville, 883 S.W.2d 629, 631 (Tenn. Ct. App. 1994), held that Tennessee Code
Annotated § 28-1-115, which permits a plaintiff to bring an action in state court following the dismissal of
an action in federal court for lack of jurisdiction, does not apply to GTLA claims.

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believing that to carve out this important subsection of the statutory scheme would be
contrary to the General Assembly’s expressed intent.12

When construing legislative enactments, we are to presume that every word in a
statute has meaning and purpose and should be given full effect if the obvious intention of
the General Assembly is not violated by so doing. In re Estate of Tanner, 295 S.W.3d at 614
(citing In re C.K.G., 173 S.W.3d at 722). When a statute is clear, we apply the plain meaning
without complicating the task. Id. (citing Eastman Chem. Co., 151 S.W.3d at 507). For the
reasons stated above, and particularly because the General Assembly expressly declared that
Tennessee Code Annotated § 29-26-121 (2009) applied to notice given on or after July 2,
2009, in all medical malpractice actions, we have concluded that the stated purpose is
expressed and clear, and that it means what it says. Accordingly, we affirm the decision of
the trial court to deny Defendants’ motion to dismiss.

I N C ONCLUSION

The judgment of the trial court is affirmed, and this matter is remanded with costs
of appeal assessed against Williamson Medical Center.

______________________________
FRANK G. CLEMENT, JR., JUDGE

12
We also note that the 2011 amendments to the Medical Malpractice Act, which were part of the
Tennessee Civil Justice Act of 2011, are wholly consistent with our understanding of the General Assembly’s
intent to make the 2008 amendments to the Act applicable to GTLA claims. Tennessee Code Annotated §
29-26-101(a)(1) (2011) states that the Medical Malpractice Act applies to “any civil action, including claims
against the state or political subdivision thereof, alleging that a health care provider or providers have caused
an injury related to the provision of, or failure to provide, health care services to a person, regardless of the
theory of liability on which the action is based.” The 2011 amendment to subsection (c) of Tennessee Code
Annotated § 29-26-102(c) further states that: “Any such civil action or claim is subject to the provisions of
this part regardless of any other claims, causes of action, or theories of liability alleged in the complaint;
provided, that no provision of this part shall apply to claims against the state to the extent that such provision
is inconsistent with or conflicts with the provisions of the Tennessee Claims Commission Act, compiled in
title 9, chapter 8, part 3.”

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