# FILED
May 2, 1997 Cecil Crowson, Jr . App ellate C ou rt Clerk IN THE COU RT OF A PPEA LS OF TENN ESSEE WESTERN SECT ION A T JA CKSON
KRISINDA

BOWERS, A

Minor, ) by n ext friend, TA MMY K. BOWERS ) and STEVE BO WERS, ) ) Plaintiff/Appellant, ) Madison Law No. C-91-27 3 ) VS. ) A ppeal No. 02A 01-9601-CV-000 11 ) STEPHEN HA MMOND, T HE JA CKSON ) CLINIC PROFESSIONAL A SSOCIATION, ) and THE JACKSON-MA DISON COUNTY ) GENERAL HOSPITA L, ) ) Defendants/Ap pellees. ) APPEAL FROM THE CI RCUI T COURT OF MA DISON COUN TY

AT JACKSON, TENN ESSEE THE HONORABLE FRANKLIN M URCHISON , JUDGE
JOEL PORTER BURCH, P ORTER & JO HNSON Memphis, Tennessee Attorney for Plaintiff/Appellant JAMES BELEW WEBB FLIPPIN, COLLINS, HUEY & WEBB Milan, Tennessee Attorney for Plaintiff/Appellant MA RTY R. P HILLIPS RAINEY, KIZER, B UTLER, REVIERE & BELL, P.L.C. Jackson, Tennessee Attorney for Appellees, Stephen Hammond & The Jackson Cli nic Professional Association JERRY D. KIZER, JR. PATRICK W. ROGERS RAINEY, KIZER, B UTLER, REVIERE & BELL, P.L.C. Jackson, Tennessee Attorneys for Appellee Jack son-Madison County General Hospital District
AFFIRMED IN PART, REVERSED IN PA RT AN D REMA NDED
ALAN E. HIGHERS , J. CONCUR: W. FRA NK CRA

WFORD, P.J., W.S. DAVID G. HA

YES, J.1 Se ctions 29-2 0-30 1 an d 29 -20- 302 wer e rep eale d in 19 87. See 1987 Tenn. Pub. Acts 405. 2 Plai ntiff Krisinda Bow

ers, a minor, by next

friends Tammy K. Bowers a nd St eve Bowers (Krisinda’s parents), appea ls the tria l court’s order entering summary judgment in favor of Defendants/Appellees Stephen H ammond, The Jackson Cl inic Professi onal Association, and Jackson-M adison County General Hospital. In dismissi ng the complai nt, the trial court ruled that Krisi nda’s action against the Defendants was barred by the threeyear statute of repose ap plicable to medi cal malpracti ce actions and, further, that Krisinda’s action against the Hospital was barred by her failure to comp ly with the statutory notice r e q u i r e m e n t s fo r m e r l ya p p l i c a b l e t o a c t i o n s a g a i n s t g o v e r n m e n t a l e n t i t i e s . We affirm in part and reverse in part.

On March 18, 1982, Kris inda wasborn at Jacks on-Madison C ounty General Hospital, where she wasdelivered by Dr. Hammond and employees of the Hospital. Dr. Hammond was an employee of The Jackson Clinic. During her birth, Kri sinda su ffered from oxyg en deficiency, or hypox ia, whic h resulted in severe br ain damage and mental retardation.

Nine years later, in November 1991 , Krisinda s ued the Defendants for $3.5million in damages for her birth- related injur ies. The Defendants answered, raisi ng the defense, inter alia , that the three-y ear statute of repos e contained in Tennes see’s Medical Malpractice Act barred Krisinda’s a cti on against the m. See T.C.A. § 29-26- 116(a)(3) (1980). The Hospital, a government al entity, raised the additional def ense that Krisinda’s cla im was barre d by her fail ure to comply with the notice prov isions of the Tenness ee Governmental Tort Liability Act, which provis i ons were applicable to claims against governmental entities at t he time Krisinda’s cause of action arose. See T.C.A. §§ 29-20- 301, 29-20-302 (1980). 1 Based on these def enses, the trial court granted the Def endants’ respective motions for summary judgment, and Kr isinda appealed.

On appeal from the trial court’s orde r of dismissal, Krisinda, through her parents, contends that the trial court erre d in enteringsummary judg ment in favor of the Defendants3

based on the foreg oing def enses because oper ation of the cited statutes was tolled by Krisinda’s disabilit y of minority . In this regard, Tennessee Code Annotated sect ion 28-1-106 prov ides that:

If th e person entitl ed to commence an acti on is, at the time the cause of action accru ed, ei ther wit hin the age of eighteen (18) year

s, or of unsound mind, such person, or h is representativ

es and privie s, as the case may be, may commence the action, after the re mova l of s uch d isab ility, within the time of limit ation for the parti cular cause of action, unless it exceed three (3) years, and in that case within three (3) yea rs fr om th e rem oval o f su ch di sabi lity. T.C.A

. § 28-1-106 (19 80). Accordi ngly, t his appeal req uires us to consider, in t urn, th e relationship between sec tion 28-1-106, which ex tends the time in which mi nors or other persons under a lega l disabili ty may commence a cause of actio n, and the statutes cited bythe Defendants, which pur port to impose t ime limitati ons on the commencement of certain actions.

I. Section 29-26-116: The M edical Malpractice Act’s Statute Of Repose

The statute of repose for medical malpra ctice action s, contained in sec tion 29-26-116, prov ides that:

In no event shal l any [m e dical malprac tice] action be broughtmore than three (3) years after the date on which t he negligent act or omiss ion occurred except w here th e re is fraudulent concealment on the part of

the defendantin which case the action shall be commenced wit hin one (1) year after discovery that the cause of action exists. T.C.A. § 29-26-1 16(a)(3) ( 1980). Based on t he language of this statute, t he Defendants contend that , des pite her d isab ility o f mi nori ty, Krisinda had only thr

ee years after

the date of her injury

in whic h to bring this action.

This argument was rejected by this court’s prior unpubl ished decisi on in Adki ns v. Martin , slip op. at 6-9 (Tenn. App. Mar. 28, 1983), perm. app. denied C .R.O. (Tenn. June 27, 1983), whi ch appears to require rev ersal of the judg ment entered in favor of the Defendants in this cas e. In Adk ins , the plaintiff, a mi nor, suffered complications during surgery when she became cyanotic, or suffered from a lack of oxyg en. Adkins , slip op. at4

2. As a result of this

oxyg en deficiency, the plaintiff suffered per manent brain damageand
was rendered non compos mentis

. Id . Mo re t han t hreeyea rs after the s urg ery , thepla inti ff filed a medical malpractice action against her surgeon, the anesth etist, and the hospital. Id

. The defendants filed a moti on for summary judgment on the ground tha t the suit was barred by section 29-26- 116, but the tri al court deni ed the motion. Id . at 3.

This court affirmed, h olding that section 29-26-116 did not supersede or suspend the operation of sec

tion 28-1-106. Adkins , slip op. at 5. The court ex plained: There are several compelling reasons w hy we ar e of the opinion that § 29-26-116 does not take precedence over § 28- 1-10 6. First of al l, the basic unfairness of rig idly enforc ing a statute of limitation s against mentally incompetent pers ons is recogniz ed by the statutes of all 5 0 states a nd the Distr ict of Columbia. See Brooks v. Southern Pacific Co. , 466 P.2d 736, 738 n.1 (Ariz . 1970). See also 51 AmJu r2d, Limitation of Actions , § 186. The legal dis ability statute of this st ate repre sents a lon g-sta nding policy to protect potent ial causes of ac tion of minors durin g thei r peri od of mino rity, an d of persons of unsound mind during thei r period of mental incompetency , as well. It first came into our codein 1858. Prior to the advent of the M edical Malp ractice Act of 1976, and the Tennes se e ProductsLiability Act of 1978, . . . no li m itations were attempted to be placed up on the rights of minors during their mino rity, nor persons of unsoun d mind during their incompetency, to enforce their causes of action. Adkins , slip op. at 6-7. In acco rdance with thi s policy , this court held that the medi cal malpractice action broug ht by theplaintiff, who was still under a mental disabi lity, w

as not barred by the three-year limitati on period contai ned in section 29-26-116.

In so holding, this court relied on a previousdecision of the Eastern Section of this court, as well as a United St ates Distr ict Court o pinion, wh ich construed these statut es . In Braden v. Yoder , 592 S.W.2d 896, 897 (Tenn. App. 1979), thecourt held that section 29-26-116(a) did not elimi nate the special rights of minors under sec tion 28-1-106 because “[t]here is no leg islative intent that suc h rights be eliminated and to do so would cause harsh results to parties inj ured at an early age who are helpless to protect their rig hts.” In Parlatov. Howe , 470 F. Supp. 996 (E.D. Tenn. 1979), the federal dist rict court explained5

the onerous burden tha t operation of the th ree-year statute of repose w

ould have upon minors in the absence of the leg al disabili ty statute:

Under Section 23-3415( a) [now s ection 29-26-1 16(a)], if an injuryis discovered with in the three-year period, an adult is at least in a positi on t o protect himsel f by bring ing his ac tion prom ptly. A minor, espec ially on e who, li ke plainti ff here, is inju red at a very

early ag e, is helples s to protect hi mself. I f Section 23-3415(a) i s held to eli minate the lega l disabili ty statute in medical malpract ice cases, the minor could forever lose his cause of action strictly through the neglect of others. This burden upon minors woul d be so oppressive that the Court cannot reasonably so construe Sect ion 23-3415(a) unless clear legislative intent appears. Parlato , 470 F. Supp. at 999. On the subje ct of legisl ative inte nt, the court opi ned that:

S ection 23-3415(a) was not intended to interfere w ith the operation of the l egal disabi lity statut e. Th e mere fact that a new, and more restrictive, statute of limitat ions is passed does not necessaril y indicat e that the leg islature i ntended to eliminate the s p ecial rig hts of minors. . . . Statutes of limit ations

are us ually

phras ed in a bsolut e and g eneral terms and t hu s the failure of the legislature to exempt minors specifical l yis not surpr ising. The l egal disabi lity st atute representsa long-st anding polic y of the State ofTennessee to protect potential caus es of actions by minors duri ng the period of their minori ty. See Gaugh v. H enderson , 39 Tenn. 628, 634 ( 1859). Unlike the discovery rule itself, the legal disabilit y statute does not repres ent a recent al teration in procedure and is not in an y way associated with the “medical malpractice insurance crises”that concerned t he legisl ature in passi ng Section 23-3415(a). Harrison v . Schrader , [569 S.W.2d 822, 826 (Tenn. 1978)]. B e fore acknowl edging the elimination of such an established policy, this Court would re quire m ore evidence of leg islative intent than mere silence. Id . at 998-99 (citation and f ootnote omitted ).
Despite these decisi ons, and despite t his court’s decision in Adkins , the Defendants insist that the trial court’s judgment should be affirmed in this case because, since Adkins
was decided, several devel op ments in the law have occur red whic h compel a different result. We a re not per suaded, however, because we note that most, i f not all, of the argumentspresently advanced by the Defendant s were considered and reje ct ed by this court in Adkins

. Citing pri nci ples

of st atut ory

constru cti on, t he D efe nda nts argue that the plain language of section 29-26- 116 bars the pre sentaction, despite Kris inda’s minori ty. In2 Se ction 2 9-28 -103 (a) p rovide s tha t: Any action against a m anufacturer or se ll er of a produc t for i njury to person or

property caused by i ts def ecti ve or unr ea so nably dangerous condit ion must be brought wit hin t he peri od fi xed by §§ 28-3-10 4, 28- 3-105, 28-3-202 and 47-2- 725, butnotwi thst anding any excep ti ons to these provi sions it mu st be brou ght w ithin six (6 ) years of the date of injury, in any eve nt, the a ction m ust b e bro ugh t with in ten (1 0) y ears fr om the date on which the product was first purc h ased for use or consumpti on , or with in one (1) y ear aft er t he expi rati on of t he an ti ci pate d life of th e pro duc t, whichev er is t he sho rter, excep t in t he case of injury to minors whose acti on must be broughtwit hin a peri od of one ( 1) y ea r aft er at tai ning t he age of m ajority , whichever occu rs soone r. T.C.A. § 29-2 8-103(a) (1980 & Supp . 1996) (em phase s added ). 6 particular, the Defendants point to the language t hat “ [i]n no event shall any

such action be brought more than three (3) years after the date on which t he neglig ent act or omiss ion occurred.”T.C.A. § 29-26-116(a) (3) (1980) (emphasi s added). The Defendants contend that the languag e “[i]n no event” bars any clai m b rought more t han three year s after the date of the negligent act, even in the event the claim is brought by a minor.

This specific arg ument, however, was considered and rej e cted by this court in Adkins

. There, the defendants urg ed a literal application of the “in no event” languag e based on th e dec isi on of the Supreme Court of Tennessee in Harrison v . Schrader , 569 S.W.2d 822, 826 (Tenn. 1978). Despi te the Supreme Cour t’s pronouncement in Harrison that section 29- 26-116(a) pr ovided “an absolute three-yea r limit on the time within which actions could be brought,” we concl uded that the plaint iff’s claim was not barred. Adkins , slip op. at 6.

In another

statutory

constructi on argument, the D efendants note that the te n-year statute of repose contained in the Tennessee Pr oducts Liabil ity Act contains an express exception for minors. See T.C.A. § 29-28- 103(a) (1980& Supp. 1996). 2 Citing this statute, the Defendants arguethat, had the legi slature inten ded to create an exception for minors in the Medica l Malpract ice Act, the l egislature expressl y woul d have done so.

Our opinion in Adkins , however, reveals that the court w as aware of theexception forminors contai ned in th e Products Lia bility Act’s statuteof repose. In cont rast to the Defendants’ present arg ument, we concl uded that“the excl usion of minors from t he effects7

of the ten-year

‘cap’ statut e in the Products Li ability Ac t” supported, rather than undermined, our decision in Adkins

. Adkins , slip o p. at 8. In reac hing t his co nclu sion , we relied on the Parlato decision, w herein the defendants s imilarly argued “that if the legislature had desired to provide special exemption f or minors in the medical malpractice area, it woul d have so st ated, as it di d in the case of pr oducts liability actions.” Parlatov. Howe , 4 70 F. Sup p. 996, 999 (E.D . Tenn. 1979). In r ejecting t his argument, the federal district court reasoned that:

[T]he exclusi on of mino rs fro m the operation of the pr oducts liab ility statute of limit ations renders it extremely unlik

ely that the legislatu re in tended to include minors in the operation of Section 23-3415(a) [now secti o n 29- 26-1 16(a )]. T hese two statut es of limitations are similar in purpose an d operatio n . Both provide ce ilings for the utilization of the discovery rule for accrual of an action. Defendants have been unable toprovide the Court w ith acohere nt reason w hy the leg islature mig ht desire to tre at mino rs differently under the Produc

ts Liabili ty Act than under the Medical Malpractice Act. T he specific reference to minors in the products liability statute might well represent

a fear by the l egislature t hat the courts would misconstrueits intent and unfairly subject minors toa restric ted statute of limitations. Interpreted i n this fashion, the Products Liability Act suggests that there is a general legislative policy not to include min ors in the oper ation ofrestr ictive statutes of limitationsand thus supports the view that Section 23-3415(a) was not intended to s upersede the leg al disabili ty statute i n the case of minors. If the l eg islat ure had intended to include minors in the restr ictions of Sect ion 2 3-34 15(a ), it wo uld h ave been a simple matter

to say so. Parlato , 470 F. Supp. at 999-1000 (quot ed in Adkins , slip op. at 8).

The Defen dants f urther a rgue that creating an excepti on for minors based on section 28-1-106 subverts the legislative intent in enacting the three-year statute of repo se contained in section 29-26-116. This legislative intent was se t forth in H arris on v. Schrader , 569 S.W.2d 822 (Tenn. 1978), where the Supreme C ourt o f Te nnessee explained th at: At the time the leg islature pas sed the statute of

limitationseventually

codified as Sec. 23-3415( a) [now sect ion 29-26-116(a)] , T.C.A., this state and the nati on were i n the throes of what was popularly des cribed as a “medical malpractice insurance cr isis.” B ecause of allege d increa sing numbers of claims, ins urance companies had grow n reluctant to write medic al malp ractice policies. W here policies were avail able , pre mium s had risen astro nom icall y.8 The legisl atur e cou ld ha ve seen in this situation a t hreat not only to themedical professi on and its insurers, butalso to the general w elfare of the citiz ens of this state. As liabil ity co sts sky rocketed, so w ould the cost of heal th care. Physici an s would be encouraged to ceas e practice or contemplate earlyreti rement, and the num ber of available physicia ns wou ld d ecrease . Thepra cti ce of “ def ensi ve medicine,”spawned by fear of costly legal actions, would lea d to a lower quality of health care in general. These consideration s may or may not have been valid; however, it is apparentthat they

were accepted by the legisl ature and formed the predicate for its action. In addition, it could be arg ued that t o the ext ent that safeestimates required by actuarial u ncertai nty, agg ravated by the extended peri od during w hich a phys ician could be subject to potential li ability, contributed to the increase in malpractice insurance costs, “i t is understa ndable thata legisl ature intent upon halting s uch phe n omenal incre ases w ould s eek som e method to increase the certainty of such estimates, ” i.e., an absolute three-yea r limit on the time wi thin whic h actionscould be brought. N ote, Malpract ice in Dea ling w ith Medical Malpractice?? , 6 Mem. St. L. Rev. 437, 459 (1976). Harrison , 569 S.W.2d at 826 (footnotes omitted). The Defendant s contend that an exception for minors would defeat thi s legisl ative inte nt because such an exception could extend the period in which a mi nor may bri ng a medical malpractice ac tion from three years to up to nineteen years.

As before, however, this court’s opi nion in Adkins reveals that the court was aware of the legis lative i ntent behind secti on 29-26-116 and that the court spe cifically rejected the notion that creatingan exceptio n for minors would defeatthis intent. In Adkins , we stated that: In holding that persons under

mental disabilit

y should, along with minor

s, be excepted from theapplication of T.C.A. § 29-26-116(a) , we do not feel that we are in any way fueling the fires of the “medical malpracti ce insurance cris es” that p recipi tated the enactment of § 29-26-116(a) in the first instance. Adkins , slip op. at 9.

The Defendants’ remai ning, and per haps strongest, argument for u s to recede from
our holding i n Adkins is that subse quent decisi ons in Tennessee have disti ngu ished between statutes of li m itations and statutes of repose and have conclud ed that section 29-26-116 fall s within t he latter categ ory. See Cron in v. Ho we , 906 S.W.2d 910, 9139

(Tenn. 1995); Bruce v. H amilton , 894 S. W.2d 274, 276 (Tenn. App. 1993), overrule d on other groun ds by Cron in v. Howe , 906 S.W.2d 910, 914 n.3 (Tenn. 1995). I n Cron in v. Howe , the Supreme Cour t of Tennessee expl ained that: On its face, [section 29- 26-116] recog nizes the ap plication of the one-year statute of limitat ions and the dis cover y rule, but places an absolute three-year li mit upon the time within which malpractice actions can be b rough t, which has been characteriz ed as “an outer limit or ceiling superimposed upon the existin g statute[of limitations].” Harrison v . Schrader , [569 S.W.2d 822, 826 (Tenn. 1978)]. . . . [W ]here the one-year

statute of limitations governs the time within which le gal proceedi ngs may be commenced after a cause of action accrues , the three-year medical malpractice statute of repos e limi ts the time within which an ac tion may be brought , but it is ent irely u nrelated to the a ccrual of a caus e of acti on and can, in fact, b ar a cause of acti on before it h a s accrued. . . . Thatdistincti on has prompted cour ts to hold that statutes of repose are substantive and extinguish both the rig ht and the remedy, w hile s tatut es of limitation are merely proc edu ral, e xtingu ishin g only t he re med y. Cronin v. Howe , 906 S. W .2d at 9 13 (emp hases in original) (ci ting Bruce v. H amilton , 894 S.W .2d at 276) (other citations omitt ed).
Upon refl ecti on, we conclude that t his distinc tion does not warranta retreat from our holding in Adkins . It is tr ue that in Adkins we did not distingui sh bet ween sta tutes of limitationsand statutes of repo se. Never theless, this

court’s opi nion in Adkins , as well as other decisions upo n which we relie d, revealed that the courts were aware of the significance of the limitation period con tained in section 29-26-116. In Adkins , for example,
we noted that the three-year statute of limitati ons contained in section 29 -26-116(a)( 3) was a “cap” w hich placed a n “absolute,” “outside li mit” on the ti me within w hich medical malpractice actions coul d be brought. Adkins , slip op. at 4, 6 (cit ing Harrison v. Schrad er , 569 S.W.2d 822, 826 (Tenn. 1978)). Similarly, in Braden v. Yoder , 592 S.W.2d 896, 897 (Tenn. App. 1979), the Eastern Se ction of this court recog nized that, in enacting section 29-26-116(a)(3), “the legi slature super imposed u pon the e xistinglimitation p eriod . . . a
max imum three-yea r ceiling ” which was “unr elated to the acc rual of a cause of ac tio n commencing not on discovery but r ather at thedate of the alleg edly negl igent act.” Despite this court’s recognition of the distincti on between the M edical Malp ractice Act ’s one-ye ar3 The De fe nd an ts c or re ctly note t hat t he causes of act ion i n Adkins , Braden , and Pa rlato all accrued

pri or to enact ment of the Medi cal Mal pract ice Act . The Pa rlato court cit ed thi s fact as an alt ernat ive reason for de nyin g th e d ef en da nts ’ m otio ns for su m m ar y jud gm en t, no ting tha t the “le gisl atur e d oes not have unli mited power to cut off an ex isti ng caus e of action.” Parlato v. Howe , 4 70 F. Supp. 996, 1000 (E. D. Tenn. 1979). T his fac tor , ho we ve r, a pp ea rs to h av e p laye d n o p ar t in th is c ou rt’s decisi ons in Adkins and Braden

. 10 and three-year limitations periods, we still held that the three-year limit a tion period cont aine d in se ctio n 29- 26-1 16(a )(3) wa s toll ed by t he pl aint iff ’s lega l disa bilit y.

In a related arg ument, the Defendants contend that, since Adkins , a similar statute of repose has been held to precl ude a cause ofaction filed by a minor outside the sta tute’s limitation period. In Pigg v . Barge, Waggoner, Sumner & Cannon , 19 88 WL 92523, at **5-6 (Tenn. App. 1988), the Middle Section of this court he ld that section 28 -1-106 did not pres erve a minor’s c laim arisi ng out of deficient impr ovements to real property where the statute of repose contain ed i n Tennessee Code Annotat ed section 28-3 -202 limited t he commencementof such actions t o “withi n four (4) years af t er the substanti al completion of such an im proveme nt.” T.C .A. § 28 -3-202 (1 980). In so holdin g, the court drew the
same distincti on between statutes of reposeand conventi onal statutes of limitation as d id the Supreme Court i n Cron in v. Howe , 906 S.W.2d 910, 913 (Tenn. 1995). Pigg , 1988 WL 92523, at *3.

We conclude, however, that this court’ s decision i n Pigg is notinconsistent with the court’s prior holdi ngs in Adkins and Braden

. In Pigg , the savi ngs prov isions of secti on 28-1-106 could not have saved theminor’s action because it was undisputed that no cause of actio n ever accru ed to be sa ve d. T here, the plain tiff’s injury occurred more than four years after the substanti al completion of the improvement to real property; thus, regardless of the plaintiff’s di sability of minority, no cause of action accrued whic h could have been saved by secti on 28-1-106. Pigg , 1988 WL 9 2523, at *6. In fact, the Pigg court distingui shed the facts of tha t case from those presented in Braden and Parlatoby pointi ng out that, in thos e cases, “[n] o statute of repose had ex tinguished t he defendants’ liabi lity at the time the injury occurred.” Pigg , 1988 WL 92523, at *5. 34 As an asi de, we wish t o comm end counsel for t he Defendant s for br ingi ng thi s unrepor ted deci sion

to the atten tion of this co urt. 11 In accordance w ith the foregoi ng anal ysis, we conclude that the trial court erred in entering summary judg ment in favor of the Defendants based on theMedical Malpractice Act’s three-y ea r statute of repos e. Although t he Defendants skil lfully adv ance severa l argumentsfor why this court s hould reexami ne its holdingin Adkins , aft er do ing so , we remain unconvinced thatrecent developments in this area of the law require us to depart from prior precedent of this court . As we stated in Adkins :

[S]tatutesof limitation ar e creatures of thelegisla ture. Up to this tim e, the legis lature has not seen fit to prov ide a cap fo r the tolling effect of apermanent or long-term incapacity, such as m e n t a l d i s a b i l i t y . We are not incl ined to rew rite the statute. However, if our holding in this cas e is deemed to pre sent a problem in the medical malpractice f ield , th en it is the prerogativ

e of the legisl ature to remedy it. Adkins , slip op. at 9. 4
Despite this inv itation, the l egislature has not seen fit t o change the r ule of law announced in Adkins and Braden . In this regard, we are mindful that:

The legislatu re is presumed to know the interpretation which courts make of its enactments ; the fact that thelegislature has not exp res sed d isa pproval of ajudicial construction of a statute is persua sive ev idence of legi slative adoption of the judic ial construction,

. . . . Hamby v. McD aniel , 559 S.W .2d 7 74, 7 76 (T enn . 197 7). Af ter ca ref ul co nsid erat ion, we decline to disturb this cou rt’s rul ing in Adkins

.

II. Sections 29-20-301 and 29-20-30 2: The Former Notice Provisions of the

Tennessee Gov

ernmental Tort Liabil ity Act

On the other hand, prior decisions of this court require us to affirm the trial court’s order of dismiss al with regards to the Hospital based on the failure to meet the notice requirements

of former sections29-20-301 and 29-2 0-30 2. At the t ime o f Kri sind a’s in jury, these statutes pr

ovided that: 29-20 -301. Notice as condition precedent to re co ver y. -- Any person having a claim for injuryto person or property against a g overnment al entity or its employee must give wr itten notice, as provided for in § 29-20 -302, to said5 See Doe v. Coff ee CountyBd. of Educ. , 852 S. W .2d 899, 903-04 n.2 (T enn . App . 199 2); Collier v.

M em ph is Light, Gas & W ater Div. , 657 S. W .2d 77 1, 775 (Tenn. App. 1983). In t his r egard, secti on 29-20- 305(b) provi des thatacti ons under t he Governmental TortLiabi li ty Act “must be comm enced wit hin twelve (12) m onths after the caus e of action arises.” T.C.A. § 29-20-30 5(b) (1980 & S upp. 1996). 12 governmental entity as a condition precedent to an y recovery from said governmental entity or employees. 29-20-302. Time for filing notice -- Contents and form of claim. -- (a) Aclaim against a g overnmental entity shall be forever bar red whether or not this statute be p led i n bar of such action, unl ess notice ther eof is filed w ithin one hundred twenty

(120) days after the cause of action aris es exceptwhere the cause of action arises out of injury resulting from the operation of a moto r vehicl e. (b) . . . . (c) This section shal l notbe strictl y constru ed where the municipality

should have reasonably apprised its elf of the occurrence of the incident or could have done so wit h the exercis e of proper dili gence. T.C.A. §§ 29-20-301, 29-20-302 (1980). The f ailure to meet these notice requirements is “a valid and complete defense to any liabi lity of a g overnmental en tity w hich might otherwise exist”by vi rtue of the Tennessee Gov er nmental To rt Liabili ty Act. T.C .A. § 29-20-303 (1980).
Citing Tennessee Code Annot ated section 29- 20-104, Krisi nda, thr ough her parents , contends that the foregoi ng notice pr ovisions are not ap plicable to mi nors. Secti on 29-20-104(b) provides

that, “ [n]ot withs tand ing an y othe r provi sion of la w to th e con trary, the provisi ons of §§ 28-1-106 -- 28-1-1 08 shall apply in causes of acti on arisingpursuant to this chapter.” T.C.A. § 29-20-10 4(b) (1980) (emphasis added).

W hile sections 29-20-104(b) and 28-1-1 06 effect ively e xtend the time in which minors may bring suit under the Governmental Tort Liab ili ty A ct, 5 the Eastern Sec tion of this court

has hel d that i njure d minor s are n ot imm une from the Act’s former notice requirements. Schorn v. Oak Ridge Scho o ls , 1989 WL 109475, at *3 n.1 (Tenn. App. 1989). In so holding , th e court reli ed on Robinson v. City of Memphis , 105 S.W.2d 101 (Tenn. 1937), w herein the Supreme Court of Tennessee stated that:

[A] notice of this ch aracter, w hich is a prerequisit e to the bring ing of a suit, is mand atory. The l iability of the city i s stat utor y, and the statuteis a limit on that liabili ty; no13 exceptionsas to persons i s made in the stat ute and none can be supplied by the courts. It imposes upon all persons , whether minors or not, the obligation to serve su c h notice in order to maintain an action. The li ability of a city for i njuries of t his ch aracter rests exclus ively upon express

or implied provisio n s of the statute; it is therefore compet ent for the Legis latu re to limit such liabi lity or remo ve it e ntire ly. Robinson , 105 S.W.2d at 102.

In accordance w ith the court’ s decision i n Tucker v. M etropolitan Government , 686 S.W.2d 87 (Tenn. App. 1984), we concl ude that the notice given in this casedid n o t complywith the foregoing statutory not ice requi rements. In Tucker , as in the present case, the plaintiff argued thatthe defendanthospital had not ice of an alleg ed incident of medical malpractice through the plaintiff’s hos pital recor ds. Tucker , 686 S.W.2d at 91. By v irtue of the information contained in th e hospital’s own recor

ds, the plainti ff insisted, the hospi tal
was reasonably apprised of the occu rrence of the incident out of which the plaintif f’s claim
arose. Id . The court rej ected this argument, reasoni ng that:

[T]he question ar ises as to w hat person in the governmental entity m ust be “reasonably

apprised.” We believe that the intentof the legisl ature was to stipulate t hat even the less than st rict con struction as

to notice prov ision wa s to refer to the sa me party w ho must receive writt en notice, that i s, th e chie f adm inist rative officer. In the instant case, at the ver y least, t he chiefa dmini strative officer of [the hospita l] would have to be “reasonablyapprised . . . of the occurrence of the incident”out of which the claim arose. There is no evidence that the chief adm inist rative officer

had any such knowledg e merely by virtue of the Plaintiff ’s . . . medical records. Id

.

We likewise reject the argument in this case tha t Krisinda’ s hospital records reasonably apprised the D efendant Hospital of the occurrence of the alleged m alpractice incident. In support of this notice arg ument, Krisinda ’s counsel points out that Krisinda’s hospital reco rds co ntai n a no tati on by a treating pediatrician that seizures which Krisinda suffered shor tly af ter h er bir th we re, in th e pediatrici an’s opinion, the result of “p erinatal asphyxi a.” The record, however, conta ins no evi dence thatthe chief administ rative officer or anyone el se in authori ty atthe hosp ital was ap prise d of this i nfo rmat ion. Accor dingl y,14

the trial cour

t properly

entered summary

judgment in fav

or ofthe Hospital based on this defense.

The trial cour

t’s judgment in favor of theHospital is affirmed; however, the j udgment in favor of Dr. Hammond and T he Jackso n Clinic is hereby reversed, and this cause is remanded for fu rther pro ceedin gs consistent with this opinion. Costs on appeal are taxed to Dr. Hamm ond and T he Ja ckso n Clin ic, f or whic h exec utio n ma y issue if ne cess ary.

HIGHERS, J.

CONCUR:

CRAWFORD, P.J., W.S.

HAYES, J.