ARTICLE

Do not read this column before bedtime. Don Paine recently brought to my attention a medical negligence opinion that is worthy of consideration for all lawyers, even those who don't know the difference between a tort and a tart. Unfortunately, it is one of those opinions that will interrupt your restful repose.

You know what I am talking about. You are sound asleep. The only sound in the room is the steady hum of warm air rising from your heat duct. Then, you awake. You are drenched in sweat, heart racing like the engine of a 1968 Corvette in the hands of a 16-year-old. Did that statute of limitations run yesterday? When was that non-suit order signed? Is there a local rule about disclosing witnesses for trial in Lake County? What do you mean there is a subrogation interest? National Spam Day is a legal holiday within the meaning of Rule 6.01, isn't it?

How many times in the middle of the night have you taken your fingers and (with the aid of the light from your clock/radio) counted the days to determine a deadline? If you haven't done it, you are blessed with inner peace, cursed with stupidity, or have managed to find an adult beverage that drowns out the voice in your head.

The holding of the case is not the cause of sleep interruption or depravation. Mr. Bloomer had back surgery and more than five years later discovered that surgical needles had been left in his back. Within one year of the time the needles were discovered, he filed suit against his physicians and the hospital where the surgery took place. The defendants moved to dismiss, saying that the three-year statute of repose in T.C.A.Sec. 29-26-116 (the medical negligence statute of limitations and repose provision) barred his claim. Mr. Bloomer resisted the motion, saying that the "foreign object" exception set forth in the statute applied to his claim. The applicable sub-section says "[t]he time limitation set forth herein shall not apply in cases where a foreign object has been negligently left in a patient's body."

The defendants would have none of this, at least not voluntarily. They said that the "time limitation" language meant the statute of limitations, not the statute of repose, and that the statute of repose still applied in such cases.

Now, there is (or, at least, was) no Tennessee case on point, but I must say that I always viewed the law on this issue as quite straight-forward. I give the defendants an "A" for imagination, but they had as much chance of winning this motion as Donald Rumsfeld has winning a personality contest. The judge denied the motion and held that "foreign object" cases are not limited by the statute of repose.

So what is so terrifying about that, you may ask? Nothing. What will scare the living daylights out of you is that Judge Greer tells us that the Tennessee Code Commission changed the format and wording of the language of the legislation when it codified the original bill and, in doing so, impacted the potential interpretation of the statute.

The statute provides as follows:

a)(1) The statute of limitations in malpractice actions shall be one (1) year as set forth in §28-3-104.

(2) In the event the alleged injury is not discovered within such one (1) year period, the period of limitation shall be one (1) year from the date of such discovery.

(3) In no event shall any such action be brought more than three (3) years after the date on which the negligent act or omission occurred except where there is fraudulent concealment on the part of the defendant, in which case the action shall be commenced within one (1) year after discovery that the cause of action exists.

(4) The time limitation herein set forth shall not apply in cases where a foreign object has been negligently left in a patient's body, in which case the action shall be commenced within one (1) year after the alleged injury or wrongful act is discovered or should have been discovered.

However, the operative language of the bill as passed by the legislature said:

The statute of limitations in malpractice actions shall be one (1) year as set forth in §28-304 [now Sec. 28-3-104]; provided, however, that in the event the alleged injury is not discovered within the said one (1) year period, the period of limitation shall be one (1) year from the date of such discovery; provided further, however, that in no event shall any such action be brought more than three (3) years after the date on which the negligent act or omission occurred except where there is fraudulent concealment on the part of the defendant in which case the action shall be commenced within one (1) year after discovery that the cause of action exists, and provided still further that the time limitation herein set forth shall not apply in cases where a foreign object has been negligently left in a patient's body in which case the action shall be commenced within one (1) year after the alleged injury or wrongful act is discovered or should have been discovered. (Emphasis added by court).

In the words of Judge Greer, "while it was useful to the Code Commission to do away with the connecting words, highlighted in boldface above, to break up the single paragraph into multiple paragraphs, when read with the connecting words in place, which were likewise included in the act prior to its codification, the intent of the legislature that the discovery of a foreign object by a patient be an exception to the three-year limitation period becomes even clearer."

Are your palms sweaty yet? Just when you thought it was safe to rely on the words printed in those green, leather-bound books, it turns out that (at least once) the Code Commission has fiddled with those words in a way that might have affected the interpretation of the statute. So, the question is: How many other times have they done it? And did they do it with the statute I cited yesterday?

Well, I warned you about reading this at night. If you rejected my unambiguous warning, have a pleasant drive to the office. Wear your seat belt.

And don't blame me for telling you about this opinion. Blame Don Paine. I do.