Statutes of Limitations

A medical malpractice action, whether for personal injury or wrongful death, must be brought within one year after the date upon which the claimant discovered the injury. Tenn. Code Ann. § 29-26-116 (1980). However, no such action may be brought more than three years after the date on which the negligent act or omission occurred, unless the action involves a foreign object. Id. If, at the time the cause of action accrues, the claimant is under the age of eighteen years or is of unsound mind, the claimant may bring an action within one year following the removal of the disability. Tenn. Code Ann. § 28-1-106 (1980).

Contributory or Comparative Negligence

The Tennessee Supreme Court has abolished the doctrine of contributory negligence. McIntyre v. Balentine, 833 S.W.2d 52 (Tenn. 1992). It adopted a modified comparative fault system, in which a negligent plaintiff may recover only if his negligence is less than the defendant's. In such a case, plaintiff's damages are reduced in proportion to the total negligence attributed to him. Id. These principles apply to cases tried or retried after May 4, 1992. Id.

Joint and Several Liability

In McIntyre v. Balentine, 833 S.W.2d 52 (Tenn. 1992), the court held that with the adoption of comparative fault in place of contributory negligence, the doctrine of joint and several liability became "obsolete." (See discussion under Contributory or Comparative Negligence.) Although the Uniform Contribution Among Tortfeasors Act, Tenn. Code Ann. §§ 29-11-101 to 106 (1980), remains on the books, McIntyre states that its provisions no longer determine the apportionment of liability between co-defendants, and that each tortfeasor is now liable only for the percentage of plaintiff's damages occasioned by his own negligence. Id.

Contribution

Tennessee affords joint tortfeasors a right of contribution in personal injury and wrongful death actions. There is no right of contribution in favor of a tortfeasor who has intentionally caused or contributed to an injury or wrongful death. Tenn. Code Ann. § 29-11-102 (1980). An action for contribution may be brought in the original action or in a separate action. Tenn. Code Ann. § 29-11-104 (1980). Under the terms of the McIntyre decision, discussed in the previous two sections, a right to contribution must be based on comparative negligence principles. Bervoets v. Harde Ralls Pontiac-Olds, Inc., 891 S.W.2d 905 (Tenn. 1995).

Vicarious Liability

No Tennessee Supreme Court case has directly addressed the issue of whether and under what circumstances the principles of ostensible or apparent agency may be used as a means by which to hold a hospital liable for the negligent acts of its independently-contracted physicians. An early Court of Appeals case noted that the primary inquiry in determining whether an apparent authority relationship between a hospital and its independent contractor has been created is whether the patient, in good faith reliance upon appearances, might reasonably consider the negligent physician connected with the hospital. Edmonds v. Chamberlain Memorial Hospital, 629 S.W.2d 28 (Tenn. Ct. App. 1981). A more recent case would impose liability whenever plaintiff seeks care from the hospital, not a particular doctor, and has to rely on the hospital to choose the doctor. White v. Methodist Hospital South, 844 S.W.2d 642 (Tenn. Ct. App. 1992). The White court did not appear to base its decision on whether the patient knew if staff members were employees.

Expert Testimony

To qualify as an expert witness, one must be a physician licensed to practice in the specialty in which the alleged malpractice occurred. Tenn. Code Ann. § 29-26-115 (1980).

Damage Caps

Tennessee does not place a cap on the amount of damages recoverable in a medical malpractice action.

Statutory Cap on Attorneys' Fees

In medical malpractice actions where the claimant and his attorney have entered into a contingent fee contract, the claimant's attorney's compensation may not exceed 33 1/3 percent of all damages awarded to the claimant. Tenn. Code Ann. § 29-26- 120 (1980). The cap was held to be constitutional in Newton v. Cox, 878 S.W.2d 105 (Tenn.), cert. denied, 513 U.S. 869 (1994).

Periodic Payments

Tennessee does not mandate the periodic payment of medical malpractice judgments.

Collateral Source Rule

Economic losses suffered by a medical malpractice claimant are recoverable only to the extent that such costs are paid or payable out of the claimant's assets, the claimant's family's assets, or insurance benefits for which the claimant or family paid. Losses indemnified by employer-sponsored insurance or a unit of government are not recoverable. Tenn. Code Ann. § 29- 26-119 (1980).

Pre-Judgment Interest

In Tennessee, pre-judgment interest is an element of damages and may be awarded at the discretion of the trial court in accordance with principles of equity at any rate not in excess of ten percent per annum. Tenn. Code Ann. § 47-14-123 (1996). However, pre-judgment interest is not allowed as a matter of right in Tennessee on unliquidated claims for damages. B. F. Myers & Son of Goodlettsville, Inc. v. Evans, 612 S.W.2d 912 (Tenn. Ct. App. 1980).

Patient Compensation Funds and Physician Insurance

Tennessee does not have a patient compensation fund, and it does not require its licensed physicians to carry liability insurance.

Immunities

Tennessee has waived its sovereign immunity for professional malpractice claims and has created a board of claims which has exclusive jurisdiction over such claims. The state is immune from liability for punitive damages. For causes of action arising in tort, the state may be held liable up to $300,000 per claimant and $1,000,000 per occurrence (or to its insurance limits, if greater). Tenn. Code Ann. § 9-8-307 (1992 & Supp. 1997).

Generally, all governmental entities, including municipalities and counties, are immune from suit for any injury resulting from their activities. Tenn. Code Ann. § 29-20-201 (Supp. 1997). However, the legislature has waived governmental entities' immunity in cases involving the negligence of governmental employees acting within the scope of their employment. Tenn. Code Ann. § 29-20-205 (1980). Furthermore, a governmental entity may not extend its immunity to independent contractors. Tenn. Code Ann. § 29-20-107 (Supp. 1997). A governmental entity must purchase liability insurance (or self-insure) in a minimum amount of $130,000 per claim and $350,000 per occurrence. Tenn. Code Ann. § 29-20-403 (Supp. 1997). No judgment or award rendered against a governmental entity may exceed the amounts of insurance purchased. Tenn. Code Ann. § 29-20-311 (1980). An earlier version of this limitation of liability has been held to apply in a medical malpractice action against a municipal hospital. Crowe v. John W. Harton Memorial Hospital, 579 S.W.2d 888 (Tenn. Ct. App. 1979).

Arbitration

Tennessee allows for, but does not mandate, the submission of medical malpractice claims to arbitration. Tenn. Code Ann. § 29-5-302 (1980).

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