                  IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                                       July 23, 2015 Session

            FRANCES E. MILLER EX REL. ARNOLD EDWARD MILLER, SR.
              V. COOKEVILLE REGIONAL MEDICAL CENTER ET AL.

                     Appeal from the Circuit Court for Putnam County
                         No. 11J0256      Amy V. Hollars, Judge


                No. M2014-01917-COA-R3-CV –Filed September 29, 2015


Plaintiff filed this medical malpractice action1 on September 8, 2011, pursuant to the
Tennessee Medical Malpractice Act (“the TMMA”) against Cookeville Regional Medical
Center, which is a governmental entity subject to the Governmental Tort Liability Act
(“the GTLA”). The Medical Center filed a motion to dismiss for failure to state a claim,
relying upon the Supreme Court‟s decision in Cunningham v. Williamson Cnty. Hosp.
Dist., 405 S.W.3d 41 (Tenn. 2013), to support its assertion that Plaintiff‟s suit was
untimely filed because it was not filed within the one-year statute of limitations set forth
in the GTLA, Tenn. Code Ann. § 29-20-305(b) (2012). Plaintiff responded contending
that the Cunningham decision should be applied prospectively only, so as to preserve
Plaintiff‟s claim as timely. The trial court found the decision in Cunningham controlling
and dismissed the complaint as untimely filed. We affirm.

   Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

FRANK G. CLEMENT, JR., P.J., M.S., delivered the opinion of the Court, in which ANDY D.
BENNETT and W. NEAL MCBRAYER, JJ., joined.

Euel Walter Kinsey, Jr., Detroit, Michigan, for the appellant, Frances E. Miller.

Cynthia A. Wilson, Cookeville, Tennessee, for the appellee, Cookeville Regional
Medical Center.


        1
          In 2012, Tenn. Code Ann. sections 29-26-115 to -122 and section -202 of the Medical
Malpractice Act were amended to replace “medical malpractice” with “health care liability.” Act of Apr.
23, 2012, ch. 798, sections 7 to 15, §§ 29-26-115 to -122, & -202, 2012 Tenn. Code Ann. Adv. Legis.
Serv. 274, 274-75 (LexisNexis) (relative to health care liability). Because the term “medical malpractice”
was used in the statutes at the time of this action, we will continue to use it throughout this opinion.
                                                 OPINION

       This is a medical malpractice action filed by Plaintiff, Frances E. Sparks Miller,
individually and as the surviving spouse of Arnold E. Miller, Sr., against Cookeville
Regional Medical Center (“the Medical Center”) and David I. Udom, M.D.2 Plaintiff
alleges the negligence of the Medical Center and Dr. Udom in prescribing and
administering an excess dosage of blood thinner resulted in the death of Mr. Miller.
Specifically, Plaintiff alleges that, after Mr. Miller was admitted to the Medical Center
for treatment of Chronic Obstructive Pulmonary Disease and Chronic Heart Failure, he
received a dosage of blood thinner approximately three times greater than what he
ordinarily took at home. The complaint further alleges that as a result of the excessive
dosage, Mr. Miller‟s blood became so thin that he required emergency correction with
blood products, and that, within thirty minutes of receiving the blood products, Mr.
Miller died on May 18, 2010.

       Plaintiff provided notice of intent to file a claim to the Medical Center and Dr.
Udom on May 11, 2011, in accordance with Tenn. Code Ann. § 29-26-121. This action
was commenced with the filing of the complaint on September 8, 2011, which was more
than one year but less than sixteen months after Mr. Miller‟s death.

        The Medical Center, a public hospital operated by the City of Cookeville,
Tennessee, filed a motion to dismiss Plaintiff‟s claim as time barred pursuant to the one-
year statute of limitations in the Governmental Tort Liability Act (“GTLA”), Tenn. Code
Ann. § 29-20-305(b). In support of its motion, the Medical Center relied upon the
Tennessee Supreme Court‟s recent decision in Cunningham v. Williamson County
Hospital District, 405 S.W.3d 41, 46 (Tenn. 2013), holding that the GTLA statute of
limitations was not extended through compliance with the pre-suit notice provisions in
Tenn. Code Ann. § 29-26-121. Plaintiff responded to the motion contending that the
Cunningham decision affected a substantive right and that the decision should be applied
prospectively only, so as to preserve Plaintiff‟s claim as timely.

       The trial court granted the Medical Center‟s motion to dismiss stating that having
“considered the controlling relevant authority, Cunningham [ ], the court is of the opinion
that Plaintiff‟s claim against [the Medical Center] is barred by the statute of limitations
set forth at [Tenn. Code Ann.] § 29-20-305(b).” Thereafter, upon the request of the
Medical Center, the order was designated as a final appealable order pursuant to Tenn. R.
Civ. P. 54.02, from which Plaintiff appealed.3

        2
          Plaintiff‟s complaint included allegations against the Medical Center‟s affiliates and two other
doctors; however, those claims were subsequently dismissed by either agreed order or voluntary non-suit
and are not at issue in this appeal.
        3
            The claims against Dr. Udom remain in the trial court and are not at issue in this appeal.


                                                     -2-
                                  STANDARD OF REVIEW

        The order from which this appeal arises granted a motion to dismiss pursuant to
Tenn. R. Civ. P. 12.02(6). The purpose of a Rule 12.02(6) motion to dismiss for failure to
state a claim upon which relief can be granted is to test the sufficiency of the complaint.
Phillips v. Montgomery Cnty., 442 S.W.3d 233, 237 (Tenn. 2014). In determining
whether the pleadings state a claim upon which relief can be granted, only the legal
sufficiency of the complaint is tested, not the strength of plaintiff‟s proof. Id. (citing
Webb v. Nashville Area Habitat for Humanity, Inc., 346 S.W.3d 422, 426 (Tenn. 2011)).
Such a motion admits the truth of all the relevant and material allegations contained in
the complaint, but asserts that the allegations fail to establish a cause of action. Id.
(citations omitted). In considering a motion to dismiss, courts should construe the
complaint liberally in favor of the plaintiff, taking all allegations of fact as true, and deny
the motion unless it appears that the plaintiff can prove no set of facts in support of her
claim that would entitle her to relief. Stein v. Davidson Hotel Co., 945 S.W.2d 714, 716
(Tenn. 1997). In considering this appeal from the trial court‟s grant of the defendant‟s
motion to dismiss, we take all allegations of fact in the plaintiff‟s complaint as true, and
review the trial courts‟ legal conclusions de novo with no presumption of correctness. Id.;
Tenn. R. App. P. 13(d); Owens v. Truckstops of America, 915 S.W.2d 420, 424 (Tenn.
1996); Cook, 878 S.W.2d at 938.

                                         ANALYSIS

        Although stated differently, Plaintiff presents the following two issues for our
review: 1) whether the trial court erred in dismissing Plaintiff‟s claim, despite Plaintiff‟s
“justifiable reliance” on the plain language of the notice statute, Tenn. Code Ann. § 29-
26-121(a), which ordinarily tolls the statute of limitations period for 120 days; and 2)
whether the Supreme Court‟s decision in Cunningham should only apply prospectively.
We will begin our analysis with a brief review of the 2011 amendment to the Medical
Malpractice Act, and specifically the interplay of its 120-day tolling provision and claims
under the GTLA for medical malpractice against governmental entities.

     I. THE GTLA STATUTE OF LIMITATIONS AND THE HCLA TOLLING PROVISION

       In 2011, the General Assembly amended the Medical Malpractice Act 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 applicable to all causes of action accruing on or after October 1,
2011. See 2011 Tenn. Pub. Acts. 510, §§ 8, 24 (“This act shall take effect October 1,
2011, the public welfare requiring it and shall apply to all liability actions for injuries,
death and losses covered by this act which accrue on or after such date.”).


                                             -3-
        Prior to the 2011 amendment, there was no specific reference to “governmental
entities” or their employees anywhere within the act, and it was uncertain whether the
2008 and 2009 amendment, which established, inter alia, that the pre-suit notice
requirements and the tolling provision were applicable to actions accruing before October
1, 2011, against governmental entities. The Tennessee Supreme Court resolved this
uncertainty in Cunningham v. Williamson County Hospital District holding that:

       [a]lthough 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. The Supreme Court then held that “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.” Id. at 46.

        The cause of action in Cunningham accrued on November 25, 2008. Id. at 42.
After providing pre-suit notice, the plaintiffs filed their claim for medical malpractice
against a government entity on March 12, 2010. Id. The Supreme Court found that,
despite the plaintiffs‟ filing of pre-suit notice, the twelve-month statute of limitations
provided by the GTLA expired on November 25, 2009. Thus, because the plaintiffs filed
their claim more than 12 months after the alleged medical malpractice, their claim was
untimely and must be dismissed. Id. at 46. In reaching this decision, the Supreme Court
expressly noted that the 2011 amendment to the Medical Malpractice Act modifying the
definition of “health care liability action” to include “claims against the state or a political
subdivision thereof,” and further explained that the 2011 amendment became effective on
October 1, 2011, after the plaintiffs in Cunningham filed their complaint. Id. at 45 n.2.
After concluding the 2011 amendment did not apply retroactively and, thus, was not at
issue in Cunningham, the Court declined to determine whether the language of the 2011
amendment clearly expresses a legislative intent to extend the statute of limitations in
GTLA cases. Id.

       Since the Cunningham decision, this court has specifically recognized that the
relevant date in determining whether the 2011 amendment to the HCLA applies to a case
is the date on which the cause of action accrues. See Wade v. Jackson Madison Cnty.
Gen. Hosp. Dist., --- S.W.3d ---, No. W2014-01103-COA-R3-CV, 2015 WL 340265 at
*6 (Tenn. Ct. App. Jan. 27, 2015) appeal denied (May 19, 2015) (“Accordingly, the new
language only applied to actions that had accrued on or after October 1, 2011.”); Banks.
v. Bordeaux Long Term Care, et al., 465 S.W.3d 141, 144 (Tenn. Ct. App. Dec. 4, 2014)
appeal denied (Apr. 10, 2015) (“The cause of action in the case on appeal accrued in
January 2012, therefore, the 2011 amendments to the HCLA apply.”); Harper v. Bradley

                                             -4-
County, 464 S.W.3d 615, 618 (Tenn. Ct. App. Oct. 30, 2014) appeal denied (Feb. 19,
2015) (“In the present case, plaintiff‟s cause of action accrued after October 1, 2011, the
date on which the 2011 amendment became effective.”).

        Plaintiff‟s cause of action accrued on May 18, 2010. After giving pre-suit notice
on May 11, 2011, and relying upon the tolling provision in Tenn. Code Ann. § 29-26-
121(c), Plaintiff filed her complaint against the government entity on September 8, 2011,
which was one year and 113 days after the cause of action accrued. Because the cause of
action in this case accrued prior to October 1, 2011, the HCLA does not apply; thus, the
statute of limitations was not extended by giving pre-suit notice of intent to file a claim.
Accordingly, as Cunningham explains, this action is time barred. See Cunningham 405
S.W.3d at 46; Kelley v. Chattanooga-Hamilton Cnty. Hosp. Auth., No. E2011-02665-
COA-R3CV, 2013 WL 2295667, at *1 (Tenn. Ct. App. May 23, 2013)4.

       Nevertheless, Plaintiff argues that the decision in Cunningham effected a
substantive change in the law; therefore, we may only apply that decision prospectively.
We are not persuaded by Plaintiff‟s argument. The Supreme Court‟s decision in
Cunningham is controlling because Plaintiff‟s cause of action accrued prior to October 1,
2011, the date on which the 2011 amendment became effective. Moreover, by applying
Cunningham prospectively we would be extending the statute of limitations for Plaintiff‟s
claim against a state entity, which would, in effect, amend, revise, or waive the state‟s
sovereign immunity, and the courts are expressly precluded from doing just that.

                             II. TENNESSEE‟S SOVEREIGN IMMUNITY

       Tennessee‟s sovereign immunity arises from its constitution. Article I, section 17,
of the Tennessee Constitution provides that “suits may be brought against the State in
such manner and in such courts as the Legislature may by law direct.” Based upon this
constitutional provision, no civil action against the State may be sustained absent express
authorization from the Tennessee General Assembly. Greenhill v. Carpenter, 718 S.W.2d
268, 270 (Tenn. Ct. App. 1986); see also Chumbley v. State, 183 Tenn. 467, 192 S.W.2d
1007 (1946) (holding that a suit against the State of Tennessee is barred by Tennessee
Constitution article I, section 17 when it is not brought in such manner as the legislature
has directed).



        4
            In Kelley, this court expressly stated that it withheld its decision in the case pending the
Supreme Court‟s ruling in Cunningham. Kelley, 2013 WL 2295667, at *1. Thereafter we affirmed the
trial court‟s dismissal of the plaintiff‟s complaint as untimely despite the plaintiff‟s compliance with
Tenn. Code Ann. § 29-26-121(a) (2012), for the alleged malpractice occurred in February 2010, and the
plaintiff filed suit in June 2011, more than 12 months after the alleged malpractice against a government
entity. Id.


                                                  -5-
       It is also critical to recognize that the courts of this state have no power to amend,
revise, or waive this state‟s sovereign immunity. Brown v. State, 783 S.W.2d 567, 571
(Tenn. Ct. App. 1989) (citing Austin v. City of Memphis, 684 S.W.2d 624, 637 (Tenn. Ct.
App. 1984)). The unequivocal restraint upon the courts of this state is stated in Tenn.
Code Ann. § 20-13-102(a):

       No court in the state shall have any power, jurisdiction or authority to
       entertain any suit against the state, or against any officer of the state acting
       by authority of the state, with a view to reach the state, its treasury, funds or
       property, and all such suits shall be dismissed as to the state or such
       officers, on motion, plea or demurrer of the law officer of the state, or
       counsel employed for the state.

Thus, only the Tennessee General Assembly may waive this state‟s sovereign immunity,
and legislation authorizing suits against the state must provide for the state‟s consent in
“plain, clear, and unmistakable” terms. Williams v. State, 139 S.W.3d 308, 311 (Tenn.
Ct. App. 2004) (quoting State ex rel. Allen v. Cook, 171 Tenn. 605, 106 S.W.2d 858, 861
(1937)) (emphasis added). “The state cannot be subjected to suits by individuals unless
the words of the act are so plain, clear and unmistakable as to leave no doubt of the
intention of the Legislature that it should be done.” Daley v. State, 869 S.W.2d 338, 340
(Tenn. Ct. App. 1993) (citing Quinton v. Board of Claims, 54 S.W.2d 953, 957 (Tenn.
1932); Brewington v. Brewington, 215 Tenn. 475, 387 S.W.2d 777, 779 (1965)).
Moreover, a statute permitting suit against the state must be strictly construed, and
jurisdiction cannot be enlarged by implication. Chumbley, 192 S.W.2d at 1008; Brown,
783 S.W.2d at 571.

        At the time Plaintiff‟s complaint was filed, the legislature did not intend to apply
the 120-day extension to medical malpractice actions governed by the GTLA.
Cunningham, 405 S.W.3d at 46 (“[B]y 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.”). Moreover, the time for pursuing an action brought under the GTLA cannot
be extended by the application of a tolling provision that does not specifically apply to
claims against a governmental entity. See Brown v. State, 783 S.W.2d 567, 572 (Tenn.
App. 1989) (“The time for pursuing a remedy against the State can be extended neither
by filing an unauthorized suit in an unauthorized forum, nor by the application of the
„Savings Statute‟ which does not specifically apply to claims against the State.”).

       As noted earlier, it is not within the power of this court to amend, revise, or waive
this state‟s sovereign immunity. Brown, 783 S.W.2d at 571. Plaintiff‟s request for
prospective application only of the Supreme Court‟s decision in Cunningham would
result in an extension to the twelve-month statute of limitations specifically provided


                                             -6-
under the GTLA and a waiver of this state‟s sovereign immunity. Accordingly, we
decline Plaintiff‟s request.

       For the foregoing reasons, we affirm the trial court‟s judgment dismissing
Plaintiff‟s complaint as untimely.

                                    IN CONCLUSION

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


                                                    ______________________________
                                                    FRANK G. CLEMENT, JR., JUDGE




                                          -7-
