                 IN THE COURT OF APPEALS OF TENNESSEE
                              AT JACKSON
                    Submitted On Briefs September 20, 2006 Session

         SHANNON WALKER, ET AL. v. RANDE LAZAR, M.D., ET AL.

                   Direct Appeal from the Circuit Court for Shelby County
                         No. CT-000323-05     D’Army Bailey, Judge



                 No. W2006-00225-COA-R3-CV - Filed September 27, 2006


The trial court granted Defendants’ motions to dismiss based on the statute of repose applicable to
medical malpractice actions. Plaintiffs appeal, asserting the statute of repose was tolled where the
action was brought on behalf of their minor children and commenced before December 9, 2005. We
affirm in part, reverse in part, and remand.

  Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed in part;
                            Reversed in part; and Remanded

DAVID R. FARMER , J., delivered the opinion of the court, in which W. FRANK CRAWFORD , P.J., W.S.,
and HOLLY M. KIRBY , J., joined.

T. Edgar Davison, III, Memphis, Tennessee, for the appellants, Shannon Walker and Danna Walker,
Individually and as Next Friends and Parents of Macye Walker and Eli Walker.

J. Kimbrough Johnson, Memphis, Tennessee, for the appellees, Rande Lazar, M.D. and
Otolaryngology Consultants of Memphis.

William L. Bomar and J. Mark Griffee, Memphis, Tennessee, for the appellee, Methodist
Healthcare-Memphis Hospitals, d/b/a Le Bonheur Children’s Medical Center.

                                            OPINION

        This appeal pertains to the Tennessee Supreme Court’s holding in Calaway v. Schucker, No.
M2004-02856-SC-R23-CQ (Tenn. Dec. 9, 2005), modified in part on reh’g, 193 S.W.3d 509 (Tenn.
2005), that the statute of repose applicable to medical malpractice actions under Tennessee Code
Annotated § 29-26-116 is not tolled during the minority of the injured plaintiff. Specifically, this
appeal requires us to consider whether the application date of December 9, 2005, prescribed by the
Calaway court upon rehearing in February 2006, applies to a cause of action commenced prior to
the application date but dismissed by the trial court prior to modification following rehearing in
February 2006. The facts relevant to our review are undisputed, and the issues raised for our review
present questions of law which we review de novo, affording no presumption of correctness to the
trial court.

        On January 18, 2005, Plaintiffs Shannon Walker and Danna Walker, (“the Walkers”)
individually and as next of friends and parents of Macye Walker (Macye) and Eli Walker (Eli),
minors commenced a medical malpractice action against Defendants Rande Lazar, M.D., (Dr.
Lazar); Otolaryngology Consultants of Memphis (“OCM”); and Methodist Healthcare d/b/a Le
Bonheur Children’s Medical Center (“Le Bonheur”; collectively, “Defendants”). The Walkers’
action arose from injuries allegedly sustained as a result of surgery performed by Dr. Lazar on Macye
in November 2000, and on Eli in February 2001. In their complaint, the Walkers alleged negligence,
battery, and outrageous conduct against Dr. Lazar; negligence against OCM; and negligence against
Le Bonheur. They sought damages for injuries to Macye and Eli in the amount of $500,000 per
child. They also sought damages for loss of consortium in the amount of $500,000, and punitive
damages in the amount of $20,000,000.

       When the Walkers commenced their action, under Bowers v. Hammon, 954 S.W.2d 752
(Tenn. Ct. App. 1997) perm. app. denied (Tenn. Sept. 29, 1997) and Braden v. Yoder, 592 S.W.2d
896 (Tenn. Ct. App. 1979) cert. denied (Tenn. Jan. 21, 1980), the three-year statute of repose
applicable to medical malpractice actions was tolled during a plaintiff’s minority. During the
pendency of the Walkers’ action, on December 9, 2005, the supreme court overruled Bowers and
Braden and held that minority does not toll the statute of repose. Calaway v. Schucker, 193 S.W.3d
509 (Tenn. 2005)(“Calaway I”).

        Defendants filed virtually identical motions for summary judgment/dismissal on December
14, 2005, and December 27, 2005. In their motions, Defendants asserted the Walkers claims were
barred by the three-year statute of repose set forth in Tennessee Code Annotated § 29-26-116. They
further asserted that the statute “contains no exception for tolling during a plaintiff’s minority, as
held by the Tennessee Supreme Court in Calaway v. Schucker, Case No. M2004-02856-SC-R23-
CQ.”

         The Walkers filed their response to Defendants’ motions on January 19, 2006. The Walkers
asserted the existence of genuine issues of material fact and argued that Calaway should be applied
prospectively and not retroactively. In the alternative, the Walkers relied on the dissent in Calaway
I for the proposition that it had been wrongly decided and should be overruled.

        By order filed January 24, 2006, the trial court determined that, under Calaway I, the
Walkers’ action was barred by the three-year statute of repose. The trial court granted Defendants’
motions and dismissed the Walkers’ action with prejudice. The Walkers filed a timely notice of
appeal to this Court on January 30, 2006.

      As the Walkers asserted in their response to Defendants’ motions for dismissal/summary
judgment, Calaway I, filed on December 9, 2005, but not yet published in the official reporter, did



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not address whether the court’s holding would apply to cases already in ligation.1 Upon petition to
rehear, however, the supreme court modified Calaway I in part on February, 21, 2006. Calaway as
published provides, “for cases commenced on or before December 9, 2005, we hold that the
plaintiff’s minority tolls the medical malpractice statute of repose. For cases commenced after
December 9, 2005, we hold that the plaintiff’s minority does not toll the medical malpractice statute
of repose.” Calaway, 193 S.W.3d at 518.

        The dispositive issue before this Court is the applicability of the supreme court’s holding in
Calaway. The Walkers assert that, under Calaway, their medical malpractice action on behalf of
their minor children for permanent injuries to the children is not barred by the statute of repose
where the action was commenced prior to December 9, 2005.2 Defendants, on the other hand, assert
prospective application of the holding in Calaway to actions commenced after December 9, 2005,
violates the separation of powers doctrine; deprives Dr. Lazar of a vested right without due process;
and deprives Dr. Lazar of equal protection of the law.

         The decision of the supreme court in Calaway is clear and unambiguous. For cases
commenced prior to or on December 9, 2005, the statute of repose is tolled during the minority of
the plaintiff. Id. Additionally, the Calaway court considered the due process and equal protection
arguments asserted by Dr. Lazar. In Calaway, the defendant/appellee physician filed a motion to
rehear asserting that prospective application of Calaway violated due process. “After careful
consideration” and balancing the interest of the injured plaintiff, who had relied on nearly forty years
of judicial precedent, against the interest of the defendant physician in the new rule, the Calaway
court rejected the defendant’s due process argument and denied the motion. Id. at 522. The
Calaway court also rejected the argument that prospective application of its holding deprived the
defendant doctor in that case of equal protection of the law. Id. at 518 (citing Great N. Ry. Co. v.
Sunburst Oil and Refining Co., 287 U.S. 358, 53 S.Ct. 145, 77 L.Ed. 360 (1932)). Accordingly, we
find it unnecessary to further address Dr. Lazar’s assertions here.

        Finally, Dr. Lazar’s assertion that the holding in Calaway violates the separation of powers
doctrine is without merit. Certainly, when construing a statute, the judicial branch is limited to
interpreting the statute, determining the intent of the legislature, and effectuating that intent. See,
e.g., City of Memphis v. Shelby County Election Comm’n, 146 S.W.3d 531, 537 (Tenn. 2004).
However, as Justice Holder noted in her vigorous dissent to Calaway, since 1979, the appellate
courts of this State have held that the statute of repose applicable to medical malpractice actions is
tolled during the minority of the injured plaintiff by application of the legal disability statute codified
at Tennessee Code Annotated § 28-1-106. Calaway, 193 S.W.3d at 521 (Holder and Anderson, J.J.,


         1
           W e note that the parties failed to attach a copy of Calaway I to their briefs, and it is not in the record. The
parties do not dispute that Calaway I was silent with respect to its application date, however, and we take judicial notice
of the original opinion filed on December 9, 2005.

         2
          The W alkers concede that their individual claims are barred and that they may not recover medical expenses
incurred. They assert, “[t]he crux of this case does not lie with the parents. The major injuries sustained were permanent
damages to the children.”

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dissenting). During this time, the general assembly took no action to legislatively supercede this
judicial interpretation. Id. We cannot fathom how prospective application of judicial statutory
interpretation that overrules nearly forty years of prior interpretation violates the separation of
powers doctrine where the general assembly has remained silent.

       In light of the foregoing, we affirm summary judgment with respect to the Walkers’
individual claims, but reverse summary judgment with respect to medical malpractice claims brought
on behalf of the minor children. This action is remanded for further proceedings. Costs of this
appeal are taxed to the Appellees, Rande Lazar, M.D.; Otolaryngology Consultants of Memphis;
Methodist Healthcare d/b/a Le Bonheur Children’s Medical Center.



                                                     ___________________________________
                                                     DAVID R. FARMER, JUDGE




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