               IN THE COURT OF APPEALS OF TENNESSEE
                            AT JACKSON
                              November 12, 2014 Session

  ERICA WADE, ET AL. V. JACKSON-MADISON COUNTY GENERAL
                 HOSPITAL DISTRICT, ET AL.

                 Appeal from the Circuit Court for Madison County
                     No. C1332     Roy B. Morgan, Jr., Judge




               No. W2014-01103-COA-R3-CV - Filed January 27, 2015



The trial court granted summary judgment to the defendant medical providers on the basis
that the plaintiffs’ health care liability complaint was filed after the expiration of the
Governmental Tort Liability Act statute of limitations. Because we conclude that, under
Tennessee Code Annotated Section 29-26-121(c), plaintiffs were entitled to a 120-day
extension on the applicable statute of limitations, we reverse and remand.

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

J. S TEVEN S TAFFORD, P.J., W.S., delivered the opinion of the Court, in which A RNOLD B.
G OLDIN, J., and B RANDON O. G IBSON, J., joined.

Louis P. Chiozza, Jr., Memphis, Tennessee and Steven R. Walker, Oakland, Tennessee, for
the appellants, Erica Wade and Peggy Fly.

Patrick W. Rogers, Jackson, Tennessee, for the appellee, Jackson-Madison County General
Hospital District.

Marty R. Phillips and Craig P. Sanders, Jackson, Tennessee, for the appellee, Armie Walker,
M.D.
                                         OPINION

                                      Background

       On October 11, 2011, Plaintiff/Appellant Erica Wade (“the child”) was admitted to
Jackson Madison County General Hospital, owned by the Defendant/Appellee Jackson-
Madison County General Hospital District, to undergo a total abdominal hysterectomy. The
procedure was performed by Defendant/Appellant Armie Walker, M.D, an employee of
Jackson-Madison County General Hospital District. The child experienced persistent pain
after the operation, and another procedure was performed by Dr. Walker for exploratory
purposes on October 17, 2011. Although it was later revealed that the child suffered from a
colonic perforation, allegedly caused by the total abdominal hysterectomy, Dr. Walker did
not discover the perforation during the exploratory procedure. The child was later discharged
from the hospital, despite the fact that the child’s medical records show that an abscess was
found during the exploratory procedure. Over a month later, on November 29, 2011, the child
was transferred to Vanderbilt University Hospital, where she was diagnosed with an
untreated perforation. The child underwent additional surgery in an attempt to correct the
perforation on December 1, 2011.

        On February 6, 2013, the child and Plaintiff/Appellant Peggy Fly (“Mother,” and
together with the child “Appellants”), individually and as attorney-in-fact for the child, filed
a complaint for damages against the Defendants West Tennessee Healthcare Jackson-
Madison County General Hospital District (“Jackson-Madison County Health Care District”),
West Tennessee Healthcare Network, Bolivar General Hospital, Inc., West Tennessee
Healthcare OBGYN Services, Jackson Madison County General Hospital (collectively,
“Defendant entities”), and Dr. Walker (together with Jackson-Madison County General
Hospital District, “Appellees”). The complaint was accompanied by a certificate of good
faith pursuant to Tennessee Code Annotated Section 29-26-122. The complaint alleged that
Dr. Walker breached the standard of care in treating the child by failing to detect that the
child suffered from a colorectal perforation after surgery was performed on the child by Dr.
Walker. According to the complaint, Dr. Walker’s failure to timely diagnose and treat the
child “is the source of continuous deterioration” of the child, including numerous
complications, some of which are life-threatening. The complaint also alleged that the named
entities were vicariously liable for Dr. Walker’s negligence and that Jackson-Madison
County General Hospital District was independently negligent in allowing a surgery to be
performed on the child at its hospital when it was not properly equipped to perform such a
surgery. The complaint further alleged that timely notice of the potential claim had been sent
to the Appellees prior to the lawsuit so that the applicable one-year statute of limitations had
been extended through operation of Tennessee Code Annotated Section 29-26-121(c) (2012).

       The Defendant entities and Dr. Walker answered the complaint on March 18, 2013
and March 22, 2013, respectively. Both answers asserted that the case was governed by the
Tennessee Governmental Tort Liability Act (“GTLA”), denied the material allegations
contained therein, and raised the affirmative defense of the expiration of the one-year GTLA



                                              -2-
statute of limitations.1 On April 2, 2013, Dr. Walker petitioned the trial court for a qualified
protective order pursuant to Tennessee Code Annotated Section 29-26-121(f) in order to
interview the child’s other treating physicians ex parte. On May 7, 2013, Appellants filed an
amended certificate of good faith to correct a minor clerical error. The parties thereafter
engaged in discovery.2 The trial court granted Dr. Walker’s motion for a qualified protective
order on November 20, 2013.

        On March 27, 2014, Dr. Walker filed a motion for summary judgment, arguing that
Appellants’ claim was barred by the GTLA statute of limitations. Dr. Walker asserted that
the case was controlled by the recent Tennessee Supreme Court case of Cunningham v.
Williamson County Hospital District, 405 S.W.3d 41 (Tenn. 2013), which held that the
GTLA statute of limitations was not extended through compliance with Tennessee Code
Annotated Section 29-26-121. Dr. Walker’s motion was accompanied by a memorandum
of law, a statement of undisputed facts, and the affidavit of Jackson-Madison County General
Hospital District’s General Counsel. The Defendant entities filed a similar motion on April
1, 2014. The Appellants filed a response to both motions on April 11, 2014, arguing that the
GTLA statute of limitations was extended by 120 days based on compliance with the notice
requirements of Tennessee Code Annotated Section 29-26-121. Specifically, Appellants
argued that Tennessee Code Annotated Section 29-26-121 was amended in October 2011 to
state that the statute of limitations was extended by 120 days even in claims governed by the
GTLA. Dr. Walker filed a reply on April 24, 2014, arguing that: (1) the amendment did not
apply to the case because parts of the amendment were passed after the treatment at issue
and the initiation of the lawsuit; and (2) even if the amendment applied, it did not constitute
a clear directive that the GTLA statute of limitations should be extended through compliance
with the notice provisions of Tennessee Code Annotated Section 29-26-121. On April 28,
2014, the Defendant entities filed a reply expressly incorporating the argument set forth by
Dr. Walker.

       The trial court held a hearing on the pending summary judgment motions on May 5,
2014. At the outset of the hearing, the parties agreed that summary judgment should be
granted to all of the Defendant entities except Jackson-Madison County General Hospital


        1
          The GTLA statute of limitations, Tennessee Code Annotated Section 29-20-305(b), provides
that an action arising under the GTLA “must be commenced within twelve (12) months after the cause of
action arises.”
        2
          Although the record in this case is not voluminous, it contains materials specifically excluded
by Rule 24 of the Tennessee Rules of Appellate Procedure, specifically documents relating to discovery. We
take this opportunity to, once again, point out that parties should make every effort to cull from the record
on appeal any documents either specifically excluded by the rules or clearly unnecessary to this Court’s
review.

                                                    -3-
District. Accordingly, an order was entered the same day granting summary judgment to all
parties other than Dr. Walker and Jackson-Madison County General Hospital District. At the
conclusion of the hearing, the trial court ruled that it would grant summary judgment in favor
of both Dr. Walker and Jackson-Madison County General Hospital District. Specifically, the
court held that Cunningham, rather than the amended statute, was controlling, and as such,
the GTLA statute of limitations was not extended through compliance with Tennessee Code
Annotated Section 29-26-121. Because Appellants’ complaint was filed more than one-year
from the date of the allegedly negligent treatment, the trial court ruled that it was barred by
the applicable statute of limitations. The trial court entered an order granting summary
judgment to Dr. Walker and Jackson-Madison County General Hospital District on May 21,
2014. Appellants timely appealed.

                                      Issues Presented

      Appellants raise one issue on appeal: Whether the trial court erred in concluding that
Appellants were not entitled to the benefit of the 120-day extension provided in Tennessee
Code Annotated Section 29-26-121(c), and in granting summary judgment to the Appellees.

                                    Standard of Review

        A trial court’s decision to grant a motion for summary judgment presents a question
of law. Our review is therefore de novo with no presumption of correctness afforded to the
trial court’s determination. Bain v. Wells, 936 S.W.2d 816, 622 (Tenn. 1997). This Court
must make a fresh determination that all the requirements of Tennessee Rule of Civil
Procedure 56 have been satisfied. Abshure v. Methodist-Healthcare-Memphis Hosps., 325
S.W.3d 98, 103 (Tenn. 2010). When a motion for summary judgment is made, the moving
party has the burden of showing that “there is no genuine issue of material fact and the
moving party is entitled to judgment as a matter of law.” Tenn. R. Civ. P. 56.04. Further,
according to the Tennessee General Assembly:

              In motions for summary judgment in any civil action in
              Tennessee, the moving party who does not bear the burden of
              proof at trial shall prevail on its motion for summary judgment
              if it:

              (1) Submits affirmative evidence that negates an essential
              element of the nonmoving party’s claim; or

              (2) Demonstrates to the court that the nonmoving party’s
              evidence is insufficient to establish an essential element of the

                                              -4-
               nonmoving party’s claim.

Tenn. Code. Ann. § 20-16-101 (effective on claims filed after July 1, 2011).

                                            Analysis

       This case involves a single issue: whether the trial court correctly concluded that the
Appellants were not entitled to a 120-day extension on the GTLA statute of limitations
through their compliance with the notice provisions of Tennessee Code Annotated Section
29-26-121. As must be true in all summary judgment cases, the material facts are not in
dispute. The child received the treatment alleged to have caused her injuries on October 11,
2011. Per the GTLA statute of limitations, her claim must have been filed within one year
of the date of treatment. Her claim was not filed within one-year, but instead was filed on
February 6, 2013. Prior to filing, however, Appellants sent pre-suit notice of their claim to
the Appellees pursuant to Tennessee Code Annotated Section 29-26-121. Tennessee Code
Annotated Section 29-26-121(c) provides that: “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.” If the 120-day extension
provided in Tennessee Code Annotated Section 29-26-121(c) applies to Appellants’
complaint, the complaint was timely filed and the trial court erred in granting summary
judgment to Appellees. If, however, the 120-day extension does not apply to Appellants’
complaint, the complaint was filed after the expiration of the applicable statute of limitations
and summary judgment was appropriate. The dispositive question, then, is whether the 120-
day extension applies to the Appellants’ complaint pursuant to the GTLA.

       Because this issue requires us to interpret a statute, we review the trial court’s decision
de novo with no presumption of correctness. We must determine the legislature's intent and
purpose by reading the words of the statutes using their plain and ordinary meaning in the
context in which the words appear. Lee Med., Inc. v. Beecher, 312 S.W.3d 515, 526 (Tenn.
2010). When the language of a statute is clear and unambiguous, courts will not look beyond
the plain language of the statute to determine its meaning. Lee Med., 312 S.W.3d at 527.

       The Tennessee Supreme Court recently considered this question with regard to a
complaint filed in 2010 in Cunningham v. Williamson County Hospital District, 405
S.W.3d 41 (Tenn. 2013). In Cunningham, the plaintiffs claimed that the negligence of a
county hospital and its employees resulted in their son’s death. After giving presuit notice
of their claim, the plaintiffs filed a medical malpractice lawsuit, approximately fifteen
months after the allegedly negligent treatment. Id. at 42. The hospital filed a motion to
dismiss, arguing that the claim was filed after the expiration of the GTLA statute of

                                               -5-
limitations. The plaintiffs asserted that they were entitled to the 120-day extension provided
in Tennessee Code Annotated Section 29-26-121(c). The trial court denied the motion to
dismiss, but granted an interlocutory appeal. The Court of Appeals also granted an
interlocutory appeal but affirmed the judgment of the trial court. The Tennessee Supreme
Court thereafter granted permission to appeal and reversed both the Court of Appeals and the
trial court. Id.

       In reaching its decision, the Court explained that the issue involved “the interplay
between the GTLA and Tennessee Code Annotated section 29-26-121 . . . [and] whether
Tennessee Code Annotated section 29-26-121(c) operates to extend the statute of limitations
by an additional 120 days in Mr. and Mrs. Cunningham’s case, which is governed by the
GTLA.” Cunningham, 405 S.W.3d at 43. The Court first concluded that both statutes were
clear and unambiguous:

                        The GTLA provides general immunity to governmental
                entities causing injury to an individual during the exercise or
                discharge of their duties. Tenn. Code Ann. § 29-20-201(a)
                (2012). Immunity is removed, however, when injuries are
                caused by the negligence of government employees acting
                within the scope of their employment. Tenn. Code Ann. § 29-
                20-205 (2012). 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. Tenn. Code Ann. § 29-20-201(c); Doyle v. Frost, 49
                S.W.3d 853, 858 (Tenn. 2001). Accordingly, the GTLA statute
                of limitations, which provides that suits against a governmental
                entity “must be commenced within twelve (12) months after the
                cause of action arises,” requires strict compliance. Tenn. Code
                Ann. § 29-20-305(b).
                        The second statute at issue in this case is Tennessee Code
                Annotated section 29-26-121, which is part of the Tennessee
                Medical Malpractice Review Board and Claims Act (“Medical
                Malpractice Act”).3 Tenn. Code. Ann. §§ 29-26-115 to -122
                (2000 & Supp. 2010). Section 121(a) requires any person
                asserting a potential medical malpractice claim to provide notice
                to each health care provider at least sixty days before filing a


        3
          The Medical Malpractice Act has since been amended to remove the term medical malpractice
and instead replace it with “health care liability.” As such, the act is now referred to as the Health Care
Liability Act, or HCLA. The amendments, and their timing, are directly at issue in this case.

                                                   -6-
              complaint. Tenn. Code Ann. § 29-26-121(a). When the sixty-day
              notice is provided, the “applicable statutes of limitations and
              repose shall be extended [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©.

Cunningham, 405 S.W.3d at 43–44.

        The Court next considered its previous Opinions “examin[ing] asserted conflicts
between provisions of the GTLA and other rules or statutes of general application.” Id. at 44.
In general, the Court noted that it generally held that statutes of “general application” that
conflict with a provision of the GTLA shall not apply to cases brought under the GTLA
unless the General Assembly expressly states its intent that the general statute should apply
to GTLA cases. Id. at 45 (citing Lynn v. City of Jackson, 63 S.W.3d 332, 337 (Tenn.
2001)). For example, in Lynn, the Tennessee Supreme Court held that the general savings
statute was “inapplicable to GTLA claims because the general savings statute did not contain
specific language requiring an extension of the GTLA statute of limitations.” Cunningham,
405 S.W.3d at 45 (citing Lynn, 63 S.W.3d at 337). Thus, the Court explained: “In the
absence of specific statutory language permitting extension of the GTLA statute of
limitations, we have held that statutory provisions inconsistent with the GTLA may not
extend the applicable statute of limitations period.” Cunningham, 405 S.W.3d at 45 (citing
Lynn, 63 S.W.3d at 337).

      The Tennessee Supreme Court in Cunningham concluded that the conflict at issue
was similar to the conflict presented in Lynn:

              Like the general statutory provision in Lynn, section 29-26-
              121(c) is inconsistent with the statute of limitations provided by
              the GTLA and therefore must expressly state the legislature’s
              intent to apply the provision to cases brought under the GTLA.
              Although the 2009 amendment to the Medical Malpractice Act
              “applies to all medical malpractice actions,” this language does
              not reference the applicability of the Medical Malpractice Act
              to actions governed by the GTLA. The language of section 29-
              26-121(c) fails to evince an express legislative intent to extend
              the statute of limitations in GTLA cases.

Cunningham, 405 S.W.3d at 45–46 (footnote omitted). Accordingly, the Tennessee Supreme
Court held that because Tennessee Code Annotated Section 29-26-121 did not expressly state
that the extension on the statute of limitations would apply to actions against governmental

                                             -7-
entities under the GTLA, the extension did not apply to claims brought under the GTLA. See
Id. at 46 (“In light of th[e] presumption [that the General Assembly is aware of the courts’
prior decisions], it is reasonable to conclude that by choosing not to use express language
applying Tennessee Code Annotated section 29-26-121(c) to cases governed by the GTLA,
the legislature did not intend to apply the 120-day extension to the GTLA statute of
limitations.”).

      The Court noted, however that a recent amendment to the statutory scheme could
change the outcome in future cases. As explained by the Court:

                      The General Assembly amended the Medical Malpractice
              Act in 2011 to modify the definition of “health care liability
              action” to include “claims against the state or a political
              subdivision thereof.” Act of May 20, 2011, ch. 510, § 8, 2011
              Tenn. Pub. Acts. 510, 1506 (codified as amended at Tenn. Code
              Ann. § 29-26-101(a) (2012)). The 2011 amendment became
              effective on October 1, 2011, after Mr. and Mrs. Cunningham
              filed their claim. Act of May 20, 2011, ch. 510, § 24, 2011
              Tenn. Pub. Acts. 510, 1514. The 2011 amendment does not
              apply retroactively in this case. See In re D.A.H., 142 S.W.3d
              267, 273–74 (Tenn. 2004) (explaining that all statutes are
              presumed to apply prospectively unless otherwise stated but
              procedural or remedial statutes that do not affect vested rights
              may apply retrospectively). Because the 2011 amendment is not
              at issue in this case, we will await a more appropriate case in
              which to determine whether the language of the 2011
              amendment clearly expresses a legislative intent to extend the
              statute of limitations in GTLA cases.

Cunningham, 405 S.W.3d at 45 n.2. Thus, the Tennessee Supreme Court indicated that the
October 1, 2011 amendment to Tennessee Code Annotated Section 29-26-101 to define a
“health care liability action” to include “claims against the state or a political subdivision
thereof” may change the analysis as to whether a plaintiff may rely on Tennessee Code
Annotated Section 29-26-121(c) to extend the statute of limitations in actions brought
pursuant to the GTLA.

       Since the decision in Cunningham, two cases from this Court have considered the
issue of whether a medical malpractice plaintiff filing suit after October 1, 2011, may rely
on an extension of the GTLA statute of limitations. See Banks v. Bordeaux Long Term
Care, No. M2013-01775-COA-R3-CV, 2014 WL 6872979 (Tenn. Ct. App. Dec.4, 2014)

                                             -8-
(involving a complaint filed in March 2013 concerning allegedly negligent treatment
occurring between May 2011 and January 2012); Harper v. Bradley County, No. E2014-
00107-COA-R9-CV, 2014 WL 5487788 (Tenn. Ct. App. Oct. 30, 2014), perm. app. filed
(involving a complaint filed in February 2013 concerning allegedly negligent treatment
occurring in November 2011). In both cases, this Court has concluded that the amendment
to Tennessee Code Annotated Section 29-26-101(a)(1) required that courts provide plaintiffs
with a 120-day extension to the GTLA statute of limitations when the plaintiff complies with
the Tennessee Code Annotated Section 29-26-121 notice requirements. See Banks, 2014 WL
6872979, at *4; Harper, 2014 WL 5487788, at *7. Appellees argue, however, that these
decisions are “based upon erroneous assumptions as to when the amendment at issue became
effective.” As such, we turn to the statutes.

        On May 20, 2011, the General Assembly passed House Bill Number 2008, to be
known as the Tennessee Civil Justice Act. See 2011 Tenn. Pub. Acts. 510 (codified as
amended at Tenn. Code Ann. § 29-26-101(a) (2012)). Among other things, the Tennessee
Civil Justice Act amended Title 29, Chapter 26, Part 1 of the Tennessee Code to add a new
section, Tennessee Code Annotated Section 29-26-101. See 2011 Tenn. Pub. Acts. 510, § 8.
As is relevant to this litigation, Tennessee Code Annotated Section 29-26-101 included the
following language:

              (a) As used in this part, unless the context otherwise requires:

              (1) “Health care liability action” means any civil action,
              including claims against the state or a 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; . . . .

Tenn. Code Ann. § 29-26-101(a) (2012) (emphasis added). This was the first time the
Tennessee Medical Malpractice Act referenced governmental entities as defendants.

       The Tennessee Civil Justice Act was approved by the Governor on June 16, 2014.
However, the Act specified that it would “take effect [on] October 1, 2011, the public
welfare requiring it and shall apply to all liability actions for injuries, deaths and losses
covered by this act which accrue on or after such date.” 2011 Tenn. Pub. Acts. 510, § 59.
Accordingly, the new language only applied to actions that had accrued on or after October
1, 2011.

       At the time the amendment to Title 29, Chapter 26, Part 1 went into effect, Tennessee

                                              -9-
Code Annotated Section 29-26-121, however, did not include the term “health care liability
action[.]” Specifically, with regard to the 120-day extension, the statute states:

              (a)(1) 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 that
              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.

                                            * * *

              (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. Personal service is effective
              on the date of that service. Service by mail is effective on the
              first day that service by mail is made in compliance with
              subdivision (a)(2)(B). In no event shall this section operate to
              shorten or otherwise extend the statutes of limitations or repose
              applicable to any action asserting a claim for medical
              malpractice, nor shall more than one (1) extension be
              applicable to any provider. . . .

Tenn. Code Ann. § 29-26-121 (2012) (emphasis added). Instead, the term “health care
liability” was not added to Tennessee Code Annotated Section 29-26-121 until nearly seven
months later on April 23, 2012, with the passage of House Bill Number 3717. See 2012
Tenn. Pub. Acts 798, § 13. The April 2012 amendment specifically states that it takes effect
“upon becoming law[.]” 2012 Tenn. Pub. Acts 798, § 59. Accordingly, the amendment to
include the term “health care liability action” in the relevant statute took effect on April 23,
2012. Tennessee Code Annotated Section 29-26-121 now states, in pertinent part:

              (a)(1) Any person, or that person’s authorized agent, asserting
              a potential claim for health care liability shall give written
              notice of the potential claim to each health care provider that
              will be a named defendant at least sixty (60) days before the
              filing of a complaint based upon health care liability in any
              court of this state.


                                              -10-
                                             * * *

               (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. Personal service is effective
               on the date of that service. Service by mail is effective on the
               first day that service by mail is made in compliance with
               subdivision (a)(2)(B). In no event shall this section operate to
               shorten or otherwise extend the statutes of limitations or repose
               applicable to any action asserting a claim for health care
               liability, nor shall more than one (1) extension be applicable to
               any provider.

Tenn. Code Ann. § 29-26-121 (Supp. 2014) (emphasis added). Thus, the version of
Tennessee Code Annotated Section 29-26-121 in effect on or after April 23, 2012 clearly
indicates that the 120-day extension will apply to all health care liability actions, as that term
is defined in Tennessee Code Annotated Section 29-26-101(a)(1), in which the plaintiff
complies with the pre-suit notice requirements.

        Appellees argue that because Tennessee Code Annotated Section 29-26-121 did not
use the term “health care liability action” at the time of the allegedly negligent conduct in this
case, the definition of a “health care liability action” in Tennessee Code Annotated Section
29-26-101(a)(1) is wholly irrelevant to this case. To quote Appellees’ brief, “[t]he definition
of a term cannot amend a statute unless the statute actually contains the term in the first
place.” Both parties appear to assume that the April 23, 2012 amendment to Tennessee Code
Annotated Section 29-26-121 is inapplicable to the present case because it went into effect
after the allegedly negligent acts at issue took place. See generally Estate of Bell v. Shelby
Cnty. Health Care Corp., 318 S.W.3d 823 (Tenn. 2010) (“[T]his Court has long recognized
that ‘[t]he rights of the parties [are] fixed under the law as it existed at the time of the injury
complained of . . . .’”) (quoting Chicago, St. Louis & New Orleans R.R. v. Pounds, 79 Tenn.
127, 131 (Tenn. 1883)). Appellants argue, however, that regardless of the timing of the
amendment to Tennessee Code Annotated Section 29-26-121, the addition of Tennessee
Code Annotated Section 29-26-101(a)(1) evinces a clear intent on the part of the General
Assembly to indicate that claims against governmental entities are subject to the procedural
requirements and corresponding benefits of the Medical Malpractice Act. We agree.

       First, we note that while the term “health care liability action” is not strictly used in
the version of Tennessee Code Annotated Section 29-26-121 at issue in this case, the section

                                               -11-
is replete with the term “medical malpractice.” Thus, there can be no dispute that the
procedural requirements and benefits of Tennessee Code Annotated Section 29-26-121
applied to medical malpractice actions at that time. After the passage of the Tennessee Civil
Justice Act, however, the term “medical malpractice” is not defined in Tennessee Code
Annotated Section 29-26-101 or elsewhere in the HCLA. This Court, however, applying pre-
April 2012 law, defined the term “medical malpractice action” as “any civil action, . . .
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.” West v. AMISUB (SFH), Inc., No. W2012-00069-COA-R3-
CV, 2013 WL 1183074, at *5 (Tenn. Ct. App. March 21, 2013). This definition is nearly
identical to the definition of a “health care liability action” found in Tennessee Code
Annotated Section 29-26-101(a)(1). Additionally, the definition of “health care liability
action” is very broad, applying to “any” claim against a health care provider for professional
negligence. Clearly, that definition would encompass a medical malpractice claim. See also
Black’s Law Dictionary 1044–45 (9th ed. 2009) (defining “medical malpractice” as “[a]
doctor’s failure to exercise the degree of care and skill that a physician or surgeon of the
same medical specialty would use under similar circumstances”). Accordingly, we agree with
Appellants that regardless of the actual use of the term “health care liability action” in
Tennessee Code Annotated Section 29-26-121, as it existed on October 11, 2011, we
conclude that the terms “health care liability action” and “medical malpractice action” are
synonymous and interchangeable. Accordingly, we can consider the definition of a “health
care liability action” in determining whether the General Assembly expressed a clear intent
to apply the medical malpractice notice requirements and corresponding benefits to claims
against governmental entities.

        Moreover, it is a well-settled rule of statutory interpretation that in order to ascertain
and give effect to the legislative intent, courts must consider the words used in a statute “in
the context of the entire statute” and “presume that the General Assembly intended to give
each of these words its full effect.” Lovlace v. Copley, 418 S.W.3d 1, 18 (Tenn. 2013)
(quoting Garrison v. Bickford, 377 S.W.3d 659, 663 (Tenn. 2012)). Further, we presume that
“every word in a statute has meaning and purpose.” In Re C.K.G., 173 S.W.3d 714, 722
(Tenn. 2005). From our research, the terms “health care liability” or “health care liability
action” are not used in Title 29, Chapter 26, Part 1, except in Tennessee Code Annotated
Section 29-26-101(a)(1). If we were, thus, to confine the term to only its express use, our
interpretation would result in the term having no effect on the statute. Further, pursuant to
the plain language of the Tennessee Civil Justice Act, the General Assembly intended that
the newly enacted definition of “health care liability action” should have effect on “all
liability actions” that accrued on or after October 1, 2011. 2011 Tenn. Pub. Acts. 510, § 59.
Under Appellees’ interpretation of the statute, however, this provision would have no effect,
except for cases that accrued on or after April 23, 2012. Clearly, the General Assembly did

                                              -12-
not intend this result. As such, to credit Appellees’ interpretation would be contrary to our
clear directive to interpret a statute so that every word or provision has meaning and purpose.

        We note that while this exact argument does not appear to have been raised in this
Court prior to this case, our decision is in line with other decisions of this Court that have
applied the new definition of “health care liability action” to similarly timed claims. As
previously discussed, two recent decisions from this Court considered the issue of whether
the Tennessee Civil Justice Act’s inclusion of “claims against the state or a political
subdivision thereof” in Tennessee Code Annotated Section 29-26-101(a)(1) indicates a clear
intent on the part of the General Assembly to extend the GTLA statute of limitations through
compliance with Tennessee Code Annotated Section 29-26-121. In both cases, the allegedly
negligent conduct occurred after October 1, 2011, the effective date of the Tennessee Civil
Justice Act, but prior to April 23, 2012, the effective date of the amendment to Tennessee
Code Annotated Section 29-26-121. See Banks, 2014 WL 6872979, at *2–3 (Tenn. Ct. App.
Dec.4, 2014) (involving a complaint filed in March 2013 concerning allegedly negligent
treatment occurring between May 2011 and January 2012); Harper, 2014 WL 5487788, at
*5–7 (involving a complaint filed in February 2013 concerning allegedly negligent treatment
occurring on or around November 2011). Thus, this case and both Banks and Harper involve
claims that accrued in the same transitionary period.

        Furthermore, the reasoning in both cases regarding the applicability of the term
“health care liability action” to the pre-April 2012 version of Tennessee Code Annotated
Section 29-26-121 is consistent with the decision in this case. In Harper, the Court focused
not on the express use or non-use of the term “health care liability” in Tennessee Code
Annotated Section 29-26-121 at the time of the accrual of the action, but on the statute’s
repeated use of the term “health care provider” to describe the defendant in the action.
Harper, 2014 WL 5487788, at *6 (“Section 121(a)(1) requires pre-suit notice ‘to each health
care provider that will be a defendant.’ Section 121(c) provides that ‘[w]hen 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.’”) (original
emphasis omitted) (emphasis added); see also Banks, 2014 WL 6872979, at * 3 (citing the
above language from Harper) As previously discussed, Tennessee Code Annotated Section
29-26-101(a)(1) defines a health care liability action as any action that involves the failure
of a health care provider to provide appropriate health care services, “regardless of the theory
of liability on which the action is based.” Because Tennessee Code Annotated Section 29-26-
121 expressly contemplates an action against a health care provider related to the rendition
of health care services, it clearly contemplates the filing of a “health care liability action,”
and the definition of that term is clearly relevant to any discussion of the requirements and
benefits of Tennessee Code Annotated Section 29-26-121.

                                              -13-
        Finally, even if we were to conclude that the General Assembly’s failure to utilize the
term “health care liability action” in Title 29, Chapter 26, Part 1, other than in section 101
created an ambiguity or a conflict, the Tennessee Civil Justice Act evinces a legislative intent
that “health care liability action” be synonymous with medical malpractice. The Tennessee
Supreme Court has indicated that when an ambiguity or conflict exists in a statute, courts
may consider “matters other than the statutory language—such as the broader statutory
scheme, the history and purpose of the legislation, public policy, historical facts preceding
or contemporaneous with the enactment of the statute, earlier versions of the statute, the
caption of the act, and the legislative history of the statute—to discern the legislature’s
intent. Womack v. Corrections Corp. of America, --- S.W.3d ----, 2014 WL 4670807, at *3
(Tenn. 2014) (emphasis added) (citing Pickard v. Tennessee Water Quality Control Bd., 424
S.W.3d 511, 518 (Tenn. 2013)). Here, House Bill Number 2008 states that: “The code
commission is requested to delete the terms ‘malpractice,’ ‘medical malpractice,’
‘malpractice action,’ and ‘medical malpractice action’ wherever they appear in Tennessee
Code Annotated and substitute instead the term ‘health care liability’ or ‘health care liability
action’ as applicable.” 2011 Tenn. Pub. Acts. 510, § 9; see also Bryan Garner, A Modern
Legal Dictionary 848 (2d ed. 1995) (defining “substitute” as to put a person or thing in place
of another” or “to supply an equivalent of”). Accordingly, to the extent that any ambiguity
or conflict is created, the Tennessee Civil Justice Act resolves this ambiguity in favor of a
conclusion that “health care liability action” be considered equivalent to and synonymous
with “medical malpractice” as that term is used throughout Title 29, Chapter 26, Part 1.
Therefore, we may consider the definition of “health care liability action” in order to
determine if the General Assembly expressed a clear intent to apply the 120-day extension
found in Tennessee Code Annotated Section 29-26-121(c) to claims brought pursuant to the
GTLA.

        Appellees next argue that even considering the language of Tennessee Code
Annotated Section 29-26-101(a)(1), there has been no clear expression from the General
Assembly that the 120-day extension of the applicable statute of limitations provided in
Tennessee Code Annotated Section 29-26-121(c) applies in claims brought pursuant to the
GTLA. We agree that in order for the GTLA statute of limitations to be extended through
compliance with Tennessee Code Annotated Section 29-26-121(c), the General Assembly’s
intent to do so “must be expressly stated in the text of the statutory provision.” Cunningham,
405 S.W.3d at 45. We disagree, however, that the language of Tennessee Code Annotated
Section 29-26-101(a)(1) does not provide this clear expression.

        As previously discussed, two recent decisions from the Middle and Eastern Sections
of this Court have held that the language in Tennessee Code Annotated Section 29-26-
101(a)(1) is clear evidence of the General Assembly’s intent to extend the GTLA statute of
limitations through compliance with the health care liability pre-suit notice requirements. As

                                              -14-
explained by the Eastern Section in Harper:

                      The 2011 amendment expressly clarifies that
              governmental entities are included as “health care providers”
              and that “health care liability actions” governed by the HCLA
              include claims against “the state or a political subdivision
              thereof.” While it does not mention the GTLA, the language
              employed by the legislature clearly expresses that GTLA
              defendants are within the ambit of the HCLA. One such
              provision is the 60-day pre-suit notice requirement. Tenn. Code
              Ann. § 29-26-121. Section 121(a)(1) requires pre-suit notice “to
              each health care provider that will be a defendant.” Section
              121(c) provides that “[w]hen 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.”
              (Emphasis added). The Supreme Court has recently stated that
              “[c]learly, the General Assembly enacted the 120-day extension
              to offset the obligation to give pre-suit notice at least 60 days
              prior to filing a complaint.” Rajvongs v. Wright, 432 S.W.3d
              808, 813–14 (Tenn. 2013).

Harper, 2014 WL 5487788, at *6. To support its conclusion, the Harper Court considered
another recent string of cases involving the extension of the GTLA statute of limitations with
regard to comparative fault and joinder. According to the Court:

                      The Court of Appeals’ decision in Daniel v. Hardin
              Cnty. Gen’l Hosp., 971 S.W.2d 21 (Tenn. Ct. App. 1997), and
              the General Assembly’s legislative response to that decision, is
              instructive in the present case. In Daniel, we addressed “whether
              the twelve month limitation for bringing suit against a
              governmental entity pursuant to [the GTLA] can be extended by
              T.C.A. § 20-1-119,” the comparative fault statute. 971 S.W.2d
              at 24. We answered in the negative, noting that “[t]he legislature
              could have made T.C.A. § 20-1-119 applicable to the [ ]GTLA,
              however, it has chosen not to do so.” Id. at 25. The General
              Assembly subsequently amended Tenn. Code Ann. § 20-1-119
              to include subsection (g), w hich provides that
              “[n]otwithstanding any law to the contrary, this section applies

                                             -15-
to suits involving governmental entities.” The Supreme Court
later recognized that this language was sufficient to evince an
intent to extend the GTLA’s 12-month statute of limitations in
appropriate comparative fault cases, stating as follows:

               More directly applicable are the
       intermediate court’s holdings concerning the
       comparative fault joinder provision, Tenn. Code
       Ann. § 20-1-119 (1999). This statute applies in
       comparative fault cases when a plaintiff has sued
       a defendant and the defendant alleges, after the
       statute of limitations has expired, that a nonparty
       caused or contributed to the plaintiff’s injury. The
       statute provides:

              [I]f the plaintiff’s cause or causes
              of action against such person would
              be barred by any applicable statute
              of limitations but for the operation
              of this section, the plaintiff may,
              within ninety (90) days of the filing
              of the first answer or first amended
              answer alleging such person's fault,
              either: “(1) Amend the complaint .
              . . pursuant to Rule 15 ...; or (2)
              Institute a separate action against
              that person. . . .”

       Tenn. Code Ann. § 20-1-119(a). In Daniel v.
       Hardin County Gen. Hosp., the Court of Appeals
       concluded that the GTLA precluded application
       of this joinder provision to governmental entities
       because doing so effectively would extend the
       twelve-month statute of limitations period. 971
       S.W.2d 21, 25 (Tenn. Ct. App. 1997). In so
       holding, the court noted that the statute appeared
       to evince a legislative intent not to allow joinder
       of governmental entities, noting, “The legislature
       could have made [Tenn. Code Ann.] § 20-1-119
       applicable to the [GTLA], however, it has chosen

                               -16-
                     not to do so.” Id. In the wake of Daniel, however,
                     the legislature has amended the joinder statute to
                     explicitly provide that “[n]otwithstanding any
                     provision of law to the contrary, this section
                     applies to suits involving governmental entities.”
                     Tenn. Code Ann. § 20-1-119(g) (amendment
                     effective June 15, 1999). Given the legislature’s
                     reaction to Daniel, we find reference to the
                     analysis of that case unpersuasive. To the
                     contrary, the legislature’s amendment of the
                     joinder statute supports the proposition that
                     governmental entities should be treated, for the
                     purposes of Rule 15.03, like any other party.

              Doyle v. Frost, 49 S.W.3d 853, 860 (Tenn.2001). The General
              Assembly’s amendment to the comparative fault joinder statute,
              Tenn. Code Ann. § 20-1-119, did not specifically refer to either
              the GTLA or its 12-month statute of limitations. The same is
              true with respect to the language in the 2011 amendment at issue
              here. Both amendments explicitly make reference to
              governmental entities, clarifying that a statutory scheme is
              applicable to a governmental entity—a potential GTLA
              defendant. The Supreme Court’s recognition in Doyle that the
              legislature’s response to Daniel was sufficient to allow
              enlargement of the GTLA statute of limitations in comparative
              fault situations thus supports our conclusion that the legislature
              evinced a similar intent here.

Harper, 2014 WL 5487788, at *6–*7.

        The Court, thus, concluded that the General Assembly’s decision to include in
Tennessee Code Annotated Section 29-26-101(a)(1) an express statement that claims against
“the state or a political subdivision thereof” are included in the definition of a “health care
liability action” was sufficiently clear to show that the General Assembly intended the
provision contained in section 29-16-121(c) to apply to claims filed under the GTLA:


                    We hold that the 2011 amendment, now codified at Tenn.
              Code Ann. § 29-26-101, clearly expresses a legislative intent to
              extend the statute of limitations in GTLA cases where the


                                             -17-
              plaintiff has met the procedural requirements of the HCLA. This
              construction comports with notions of fundamental fairness and
              justice, and also with the Supreme Court’s often-repeated
              “established view that disfavors the doctrine of sovereign
              immunity as applied to local governments.” Lucius, 925 S.W.2d
              at 526; see also Jenkins v. Loudon Cnty., 736 S.W.2d 603,
              605–06 (Tenn. 1987), abrogated on other grounds by Limbaugh
              v. Coffee Med. Ctr., 59 S.W.3d 73, 83 (Tenn. 2001), (stating
              that the Court “does not regard with favor the doctrine of
              sovereign immunity as applied to municipal or county
              governments”); Johnson v. Oman Constr. Co., 519 S.W.2d 782,
              786 (Tenn. 1975) (“This Court does not regard with favor the
              doctrine of sovereign immunity as applied to municipal or
              county governments.”).

Harper, 2014 WL 5487788, at *7.

        Similarly, in Banks, the Middle Section of this Court also held that the inclusion of
claims against “the state or a political subdivision thereof” in the definition of a health care
liability action was clear evidence of the General Assembly’s intent to apply the benefits and
burdens of Tennessee Code Annotated Section 29-26-121 to claims brought under the
GTLA. Banks, 2014 WL 6872979, at **3–*4. The Banks court stated that Harper
constituted “a well-reasoned construction of the effect of the 2011 amendments to the
HCLA” and concurred in both its reasoning and conclusion. Id. at *4.

        We agree with the Courts in both Harper and Banks. The General Assembly’s
decision to enact Tennessee Code Annotated Section 29-26-101(a)(1) and to provide that
health care liability actions governed by Title 29, Chapter 26, Part 1would include claims
against “the state or a political subdivision thereof” evinces the clear intent of the General
Assembly to apply Tennessee Code Annotated Section 29-26-121’s requirements to claims
against governmental entities brought pursuant to the GTLA. Indeed, because Tennessee
Code Annotated Section 29-26-101(a)(1)’s definition of “health care liability action” was
enacted months prior to the substitution of that term for “medical malpractice” throughout
the HCLA, we can discern no other purpose for creating this expansive definition of “health
care liability action” at the time it was approved, other than to clarify that claims pursuant
to the GTLA will be governed by the HCLA. See In Re C.K.G., 173 S.W.3d at 722 (requiring
courts to presume that every word in a statute has meaning and purpose). Additionally,
language similar to the language employed by Tennessee Code Annotated Section 29-26-
101(a)(1) has been held by the Tennessee Supreme Court to constitute sufficient clarity to
extend the GTLA statute of limitations in other cases. See Doyle, 49 S.W.3d at 860. Finally,

                                              -18-
the Tennessee Supreme Court has indicated that when the notice provisions apply, those
requirements are “offset” by the 120-day extension to the statute of limitations. Rajvongs,
432 S.W.3d at 813–14. Because Tennessee Code Annotated Section 29-26-101(a)(1) clearly
provides that the requirements of Title 29, Chapter 26, Part 1 apply to claims against
governmental entities, plaintiffs in those cases who comply with the pre-suit notice
requirements are entitled to the corresponding extension of the GTLA statute of limitations.

       In this case, there appears to be no dispute that the Appellants complied with the pre-
suit notice provisions of Tennessee Code Annotated Section 29-26-121. Accordingly, they
were entitled to a 120-day extension on the GTLA statute of limitations. Appellants’
complaint was, therefore, timely filed, and the trial court erred in granting summary judgment
to Appellees on this issue.

                                        Conclusion

       The judgment of the Circuit Court of Madison County is reversed, and this cause is
remanded to the trial court for all further proceedings as may be necessary and are consistent
with this Opinion. Costs of this appeal are taxed to Appellees Armie Walker, M.D., and
Jackson-Madison County General Hospital District, for which execution may issue if
necessary.




                                                    _________________________________

                                                    J. STEVEN STAFFORD, JUDGE




                                             -19-
