FILED

May 2, 1997

Cecil Crowson, Jr.

Appellate Court Clerk

IN THE COURT OF APPEALS OF TENNESSEE

WESTERN SECTION AT JACKSON

KRISINDA BOWERS, A Minor, )

by next friend, TAMMY K. BOWERS )

and STEVE BOWERS, ) 

)

Plaintiff/Appellant, ) Madison Law No. C-91-273

)

VS. ) Appeal No. 02A01-9601-CV-00011

)

STEPHEN HAMMOND, THE JACKSON )

CLINIC PROFESSIONAL ASSOCIATION, )

and THE JACKSON-MADISON COUNTY )

GENERAL HOSPITAL, )

)

Defendants/Appellees. )

APPEAL FROM THE CIRCUIT COURT OF MADISON COUNTY

AT JACKSON, TENNESSEE

THE HONORABLE FRANKLIN MURCHISON, JUDGE

JOEL PORTER

BURCH, PORTER & JOHNSON

Memphis, Tennessee

Attorney for Plaintiff/Appellant

JAMES BELEW WEBB

FLIPPIN, COLLINS, HUEY & WEBB

Milan, Tennessee

Attorney for Plaintiff/Appellant

MARTY R. PHILLIPS

RAINEY, KIZER, BUTLER, REVIERE & BELL, P.L.C.

Jackson, Tennessee

Attorney for Appellees, Stephen Hammond & 

The Jackson Clinic Professional Association

JERRY D. KIZER, JR.

PATRICK W. ROGERS

RAINEY, KIZER, BUTLER, REVIERE & BELL, P.L.C.

Jackson, Tennessee

Attorneys for Appellee Jackson-Madison County

General Hospital District

AFFIRMED IN PART, REVERSED IN PART

AND REMANDED

ALAN E. HIGHERS, J.

CONCUR:

W. FRANK CRAWFORD, P.J., W.S.

DAVID G. HAYES, J.
1Sections 29-20-301 and 29-20-302 were repealed in 1987. See 1987 Tenn. Pub. Acts 405.

2

Plaintiff Krisinda Bowers, a minor, by next friends Tammy K. Bowers and Steve

Bowers (Krisinda’s parents), appeals the trial court’s order entering summary judgment in

favor of Defendants/Appellees Stephen Hammond, The Jackson Clinic Professional

Association, and Jackson-Madison County General Hospital. In dismissing the complaint,

the trial court ruled that Krisinda’s action against the Defendants was barred by the threeyear statute of repose applicable to medical malpractice actions and, further, that

Krisinda’s action against the Hospital was barred by her failure to comply with the statutory

notice requirements formerly applicable to actions against governmental entities. We

affirm in part and reverse in part.

On March 18, 1982, Krisinda was born at Jackson-Madison County General

Hospital, where she was delivered by Dr. Hammond and employees of the Hospital. Dr.

Hammond was an employee of The Jackson Clinic. During her birth, Krisinda suffered

from oxygen deficiency, or hypoxia, which resulted in severe brain damage and mental

retardation. 

Nine years later, in November 1991, Krisinda sued the Defendants for $3.5 million

in damages for her birth-related injuries. The Defendants answered, raising the defense,

inter alia, that the three-year statute of repose contained in Tennessee’s Medical

Malpractice Act barred Krisinda’s action against them. See T.C.A. § 29-26-116(a)(3)

(1980). The Hospital, a governmental entity, raised the additional defense that Krisinda’s

claim was barred by her failure to comply with the notice provisions of the Tennessee

Governmental Tort Liability Act, which provisions were applicable to claims against

governmental entities at the time Krisinda’s cause of action arose. See T.C.A. §§ 29-20-

301, 29-20-302 (1980).1 Based on these defenses, the trial court granted the Defendants’

respective motions for summary judgment, and Krisinda appealed.

On appeal from the trial court’s order of dismissal, Krisinda, through her parents,

contends that the trial court erred in entering summary judgment in favor of the Defendants
3

based on the foregoing defenses because operation of the cited statutes was tolled by

Krisinda’s disability of minority. In this regard, Tennessee Code Annotated section

28-1-106 provides that:

If the person entitled to commence an action is, at the

time the cause of action accrued, either within the age of

eighteen (18) years, or of unsound mind, such person, or his

representatives and privies, as the case may be, may

commence the action, after the removal of such disability,

within the time of limitation for the particular cause of action,

unless it exceed three (3) years, and in that case within three

(3) years from the removal of such disability.

T.C.A. § 28-1-106 (1980). Accordingly, this appeal requires us to consider, in turn, the

relationship between section 28-1-106, which extends the time in which minors or other

persons under a legal disability may commence a cause of action, and the statutes cited

by the Defendants, which purport to impose time limitations on the commencement of

certain actions.

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

The statute of repose for medical malpractice actions, contained in section

29-26-116, provides that:

In no event shall any [medical malpractice] 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.

T.C.A. § 29-26-116(a)(3) (1980). Based on the language of this statute, the Defendants

contend that, despite her disability of minority, Krisinda had only three years after the date

of her injury in which to bring this action.

This argument was rejected by this court’s prior unpublished decision in Adkins v.

Martin, slip op. at 6-9 (Tenn. App. Mar. 28, 1983), perm. app. denied C.R.O. (Tenn. June

27, 1983), which appears to require reversal of the judgment entered in favor of the

Defendants in this case. In Adkins, the plaintiff, a minor, suffered complications during

surgery when she became cyanotic, or suffered from a lack of oxygen. Adkins, slip op. at
4

2. As a result of this oxygen deficiency, the plaintiff suffered permanent brain damage and

was rendered non compos mentis. Id. More than three years after the surgery, the plaintiff

filed a medical malpractice action against her surgeon, the anesthetist, and the hospital.

Id. The defendants filed a motion for summary judgment on the ground that the suit was

barred by section 29-26-116, but the trial court denied the motion. Id. at 3.

This court affirmed, holding that section 29-26-116 did not supersede or suspend

the operation of section 28-1-106. Adkins, slip op. at 5. The court explained:

There are several compelling reasons why we are of the

opinion that § 29-26-116 does not take precedence over § 28-

1-106. First of all, the basic unfairness of rigidly enforcing a

statute of limitations against mentally incompetent persons is

recognized by the statutes of all 50 states and the District of

Columbia. See Brooks v. Southern Pacific Co., 466 P.2d 736,

738 n.1 (Ariz. 1970). See also 51 AmJur2d, Limitation of

Actions, § 186.

The legal disability statute of this state represents a

long-standing policy to protect potential causes of action of

minors during their period of minority, and of persons of

unsound mind during their period of mental incompetency, as

well. It first came into our code in 1858. Prior to the advent of

the Medical Malpractice Act of 1976, and the Tennessee

Products Liability Act of 1978, . . . no limitations were

attempted to be placed upon the rights of minors during their

minority, nor persons of unsound mind during their

incompetency, to enforce their causes of action.

Adkins, slip op. at 6-7. In accordance with this policy, this court held that the medical

malpractice action brought by the plaintiff, who was still under a mental disability, was not

barred by the three-year limitation period contained in section 29-26-116.

In so holding, this court relied on a previous decision of the Eastern Section of this

court, as well as a United States District Court opinion, which construed these statutes.

In Braden v. Yoder, 592 S.W.2d 896, 897 (Tenn. App. 1979), the court held that section

29-26-116(a) did not eliminate the special rights of minors under section 28-1-106 because

“[t]here is no legislative intent that such rights be eliminated and to do so would cause

harsh results to parties injured at an early age who are helpless to protect their rights.” In

Parlato v. Howe, 470 F. Supp. 996 (E.D. Tenn. 1979), the federal district court explained
5

the onerous burden that operation of the three-year statute of repose would have upon

minors in the absence of the legal disability statute:

Under Section 23-3415(a) [now section 29-26-116(a)], if an

injury is discovered within the three-year period, an adult is at

least in a position to protect himself by bringing his action

promptly. A minor, especially one who, like plaintiff here, is

injured at a very early age, is helpless to protect himself. If

Section 23-3415(a) is held to eliminate the legal disability

statute in medical malpractice cases, the minor could forever

lose his cause of action strictly through the neglect of others.

This burden upon minors would be so oppressive that the

Court cannot reasonably so construe Section 23-3415(a)

unless clear legislative intent appears.

Parlato, 470 F. Supp. at 999. On the subject of legislative intent, the court opined that:

Section 23-3415(a) was not intended to interfere with the

operation of the legal disability statute. The mere fact that a

new, and more restrictive, statute of limitations is passed does

not necessarily indicate that the legislature intended to

eliminate the special rights of minors. . . . Statutes of

limitations are usually phrased in absolute and general terms

and thus the failure of the legislature to exempt minors

specifically is not surprising. The legal disability statute

represents a long-standing policy of the State of Tennessee to

protect potential causes of actions by minors during the period

of their minority. See Gaugh v. Henderson, 39 Tenn. 628, 634

(1859). Unlike the discovery rule itself, the legal disability

statute does not represent a recent alteration in procedure and

is not in any way associated with the “medical malpractice

insurance crises” that concerned the legislature in passing

Section 23-3415(a). Harrison v. Schrader, [569 S.W.2d 822,

826 (Tenn. 1978)]. Before acknowledging the elimination of

such an established policy, this Court would require more

evidence of legislative intent than mere silence.

Id. at 998-99 (citation and footnote omitted).

Despite these decisions, and despite this 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 developments in the law have occurred which compel a different

result. We are not persuaded, however, because we note that most, if not all, of the

arguments presently advanced by the Defendants were considered and rejected by this

court in Adkins.

Citing principles of statutory construction, the Defendants argue that the plain

language of section 29-26-116 bars the present action, despite Krisinda’s minority. In
2Section 29-28-103(a) provides that:

Any action against a manufacturer or seller of a product for injury

to person or property caused by its defective or unreasonably dangerous

condition must be brought within the period fixed by §§ 28-3-104, 28-3-105,

28-3-202 and 47-2-725, but notwithstanding any exceptions to these

provisions it must be brought within six (6) years of the date of injury, in any

event, the action m ust be brought within ten (10) years from the date on

which the product was first purchased for use or consumption, or within

one (1) year after the expiration of the anticipated life of the product,

whichever is the shorter, except in the case of injury to minors whose action

must be brought within a period of one (1) year after attaining the age of

majority, whichever occurs sooner.

T.C.A. § 29-28-103(a) (1980 & Supp. 1996) (emphases added).

6

particular, the Defendants point to the language that “[i]n no event shall any such action

be brought more than three (3) years after the date on which the negligent act or omission

occurred.” T.C.A. § 29-26-116(a)(3) (1980) (emphasis added). The Defendants contend

that the language “[i]n no event” bars any claim brought more than three years after the

date of the negligent act, even in the event the claim is brought by a minor.

This specific argument, however, was considered and rejected by this court in

Adkins. There, the defendants urged a literal application of the “in no event” language

based on the decision of the Supreme Court of Tennessee in Harrison v. Schrader, 569

S.W.2d 822, 826 (Tenn. 1978). Despite the Supreme Court’s pronouncement in Harrison

that section 29-26-116(a) provided “an absolute three-year limit on the time within which

actions could be brought,” we concluded that the plaintiff’s claim was not barred. Adkins,

slip op. at 6.

In another statutory construction argument, the Defendants note that the ten-year

statute of repose contained in the Tennessee Products Liability Act contains an express

exception for minors. See T.C.A. § 29-28-103(a) (1980 & Supp. 1996).2

 Citing this statute,

the Defendants argue that, had the legislature intended to create an exception for minors

in the Medical Malpractice Act, the legislature expressly would have done so.

Our opinion in Adkins, however, reveals that the court was aware of the exception

for minors contained in the Products Liability Act’s statute of repose. In contrast to the

Defendants’ present argument, we concluded that “the exclusion of minors from the effects
7

of the ten-year ‘cap’ statute in the Products Liability Act” supported, rather than

undermined, our decision in Adkins. Adkins, slip op. at 8. In reaching this conclusion, we

relied on the Parlato decision, wherein the defendants similarly argued “that if the

legislature had desired to provide special exemption for minors in the medical malpractice

area, it would have so stated, as it did in the case of products liability actions.” Parlato v.

Howe, 470 F. Supp. 996, 999 (E.D. Tenn. 1979). In rejecting this argument, the federal

district court reasoned that:

[T]he exclusion of minors from the operation of the products

liability statute of limitations renders it extremely unlikely that

the legislature intended to include minors in the operation of

Section 23-3415(a) [now section 29-26-116(a)]. These two

statutes of limitations are similar in purpose and operation.

Both provide ceilings for the utilization of the discovery rule for

accrual of an action. Defendants have been unable to provide

the Court with a coherent reason why the legislature might

desire to treat minors differently under the Products Liability

Act than under the Medical Malpractice Act. The specific

reference to minors in the products liability statute might well

represent a fear by the legislature that the courts would

misconstrue its intent and unfairly subject minors to a restricted

statute of limitations. Interpreted in this fashion, the Products

Liability Act suggests that there is a general legislative policy

not to include minors in the operation of restrictive statutes of

limitations and thus supports the view that Section 23-3415(a)

was not intended to supersede the legal disability statute in the

case of minors. If the legislature had intended to include

minors in the restrictions of Section 23-3415(a), it would have

been a simple matter to say so.

Parlato, 470 F. Supp. at 999-1000 (quoted in Adkins, slip op. at 8).

The Defendants further argue that creating an exception for minors based on

section 28-1-106 subverts the legislative intent in enacting the three-year statute of repose

contained in section 29-26-116. This legislative intent was set forth in Harrison v.

Schrader, 569 S.W.2d 822 (Tenn. 1978), where the Supreme Court of Tennessee

explained that:

At the time the legislature passed the statute of

limitations eventually codified as Sec. 23-3415(a) [now section

29-26-116(a)], T.C.A., this state and the nation were in the

throes of what was popularly described as a “medical

malpractice insurance crisis.” Because of alleged increasing

numbers of claims, insurance companies had grown reluctant

to write medical malpractice policies. Where policies were

available, premiums had risen astronomically.
8

The legislature could have seen in this situation a threat

not only to the medical profession and its insurers, but also to

the general welfare of the citizens of this state. As liability

costs skyrocketed, so would the cost of health care.

Physicians would be encouraged to cease practice or

contemplate early retirement, and the number of available

physicians would decrease. The practice of “defensive

medicine,” spawned by fear of costly legal actions, would lead

to a lower quality of health care in general. These

considerations may or may not have been valid; however, it is

apparent that they were accepted by the legislature and

formed the predicate for its action.

In addition, it could be argued that to the extent that

safe estimates required by actuarial uncertainty, aggravated by

the extended period during which a physician could be subject

to potential liability, contributed to the increase in malpractice

insurance costs, “it is understandable that a legislature intent

upon halting such phenomenal increases would seek some

method to increase the certainty of such estimates,” i.e., an

absolute three-year limit on the time within which actions could

be brought. Note, Malpractice in Dealing with Medical

Malpractice??, 6 Mem. St. L. Rev. 437, 459 (1976).

Harrison, 569 S.W.2d at 826 (footnotes omitted). The Defendants contend that an

exception for minors would defeat this legislative intent because such an exception could

extend the period in which a minor may bring a medical malpractice action from three years

to up to nineteen years.

As before, however, this court’s opinion in Adkins reveals that the court was aware

of the legislative intent behind section 29-26-116 and that the court specifically rejected the

notion that creating an exception for minors would defeat this intent. In Adkins, we stated

that:

In holding that persons under mental disability should,

along with minors, be excepted from the application of T.C.A.

§ 29-26-116(a), we do not feel that we are in any way fueling

the fires of the “medical malpractice insurance crises” that

precipitated the enactment of § 29-26-116(a) in the first

instance.

Adkins, slip op. at 9.

The Defendants’ remaining, and perhaps strongest, argument for us to recede from

our holding in Adkins is that subsequent decisions in Tennessee have distinguished

between statutes of limitations and statutes of repose and have concluded that section

29-26-116 falls within the latter category. See Cronin v. Howe, 906 S.W.2d 910, 913
9

(Tenn. 1995); Bruce v. Hamilton, 894 S.W.2d 274, 276 (Tenn. App. 1993), overruled on

other grounds by Cronin v. Howe, 906 S.W.2d 910, 914 n.3 (Tenn. 1995). In Cronin v.

Howe, the Supreme Court of Tennessee explained that:

On its face, [section 29-26-116] recognizes the application of

the one-year statute of limitations and the discovery rule, but

places an absolute three-year limit upon the time within which

malpractice actions can be brought, which has been

characterized as “an outer limit or ceiling superimposed upon

the existing 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 legal proceedings may be commenced after

a cause of action accrues, the three-year medical malpractice

statute of repose limits the time within which an action may be

brought, but it is entirely unrelated to the accrual of a cause of

action and can, in fact, bar a cause of action before it has

accrued. . . . That distinction has prompted courts to hold that

statutes of repose are substantive and extinguish both the right

and the remedy, while statutes of limitation are merely

procedural, extinguishing only the remedy.

Cronin v. Howe, 906 S.W.2d at 913 (emphases in original) (citing Bruce v. Hamilton, 894

S.W.2d at 276) (other citations omitted).

Upon reflection, we conclude that this distinction does not warrant a retreat from our

holding in Adkins. It is true that in Adkins we did not distinguish between statutes of

limitations and statutes of repose. Nevertheless, this court’s opinion in Adkins, as well as

other decisions upon which we relied, revealed that the courts were aware of the

significance of the limitation period contained in section 29-26-116. In Adkins, for example,

we noted that the three-year statute of limitations contained in section 29-26-116(a)(3) was

a “cap” which placed an “absolute,” “outside limit” on the time within which medical

malpractice actions could be brought. Adkins, slip op. at 4, 6 (citing Harrison v. Schrader,

569 S.W.2d 822, 826 (Tenn. 1978)). Similarly, in Braden v. Yoder, 592 S.W.2d 896, 897

(Tenn. App. 1979), the Eastern Section of this court recognized that, in enacting section

29-26-116(a)(3), “the legislature superimposed upon the existing limitation period . . . a

maximum three-year ceiling” which was “unrelated to the accrual of a cause of action

commencing not on discovery but rather at the date of the allegedly negligent act.” Despite

this court’s recognition of the distinction between the Medical Malpractice Act’s one-year
3

The Defendants correctly note that the causes of action in Adkins, Braden, and Parlato all accrued

prior to enactment of the Medical Malpractice Act. The Parlato court cited this fact as an alternative reason

for denying the defendants’ motions for summary judgm ent, noting that the “legislature does not have

unlimited power to cut off an existing cause of action.” Parlato v. Howe, 470 F. Supp. 996, 1000 (E.D. Tenn.

1979). This factor, however, appears to have played no part in this court’s decisions in Adkins and Braden.

10

and three-year limitations periods, we still held that the three-year limitation period

contained in section 29-26-116(a)(3) was tolled by the plaintiff’s legal disability.

In a related argument, the Defendants contend that, since Adkins, a similar statute

of repose has been held to preclude a cause of action filed by a minor outside the statute’s

limitation period. In Pigg v. Barge, Waggoner, Sumner & Cannon, 1988 WL 92523, at

**5-6 (Tenn. App. 1988), the Middle Section of this court held that section 28-1-106 did not

preserve a minor’s claim arising out of deficient improvements to real property where the

statute of repose contained in Tennessee Code Annotated section 28-3-202 limited the

commencement of such actions to “within four (4) years after the substantial completion

of such an improvement.” T.C.A. § 28-3-202 (1980). In so holding, the court drew the

same distinction between statutes of repose and conventional statutes of limitation as did

the Supreme Court in Cronin v. Howe, 906 S.W.2d 910, 913 (Tenn. 1995). Pigg, 1988 WL

92523, at *3. 

We conclude, however, that this court’s decision in Pigg is not inconsistent with the

court’s prior holdings in Adkins and Braden. In Pigg, the savings provisions of section

28-1-106 could not have saved the minor’s action because it was undisputed that no cause

of action ever accrued to be saved. There, the plaintiff’s injury occurred more than four

years after the substantial completion of the improvement to real property; thus, regardless

of the plaintiff’s disability of minority, no cause of action accrued which could have been

saved by section 28-1-106. Pigg, 1988 WL 92523, at *6. In fact, the Pigg court

distinguished the facts of that case from those presented in Braden and Parlato by pointing

out that, in those cases, “[n]o statute of repose had extinguished the defendants’ liability

at the time the injury occurred.” Pigg, 1988 WL 92523, at *5.3
4As an aside, we wish to comm end counsel for the Defendants for bringing this unreported decision

to the attention of this court.

11

In accordance with the foregoing analysis, we conclude that the trial court erred in

entering summary judgment in favor of the Defendants based on the Medical Malpractice

Act’s three-year statute of repose. Although the Defendants skillfully advance several

arguments for why this court should reexamine its holding in Adkins, after doing so, we

remain unconvinced that recent developments in this area of the law require us to depart

from prior precedent of this court. As we stated in Adkins:

[S]tatutes of limitation are creatures of the legislature. Up to

this time, the legislature has not seen fit to provide a cap for

the tolling effect of a permanent or long-term incapacity, such

as mental disability. We are not inclined to rewrite the statute.

However, if our holding in this case is deemed to present a

problem in the medical malpractice field, then it is the

prerogative of the legislature to remedy it.

Adkins, slip op. at 9.4

Despite this invitation, the legislature has not seen fit to change the rule of law

announced in Adkins and Braden. In this regard, we are mindful that:

The legislature is presumed to know the interpretation which

courts make of its enactments; the fact that the legislature has

not expressed disapproval of a judicial construction of a statute

is persuasive evidence of legislative adoption of the judicial

construction, . . . .

Hamby v. McDaniel, 559 S.W.2d 774, 776 (Tenn. 1977). After careful consideration, we

decline to disturb this court’s ruling in Adkins.

II. Sections 29-20-301 and 29-20-302: The Former Notice Provisions of the

Tennessee Governmental Tort Liability Act

On the other hand, prior decisions of this court require us to affirm the trial court’s

order of dismissal with regards to the Hospital based on the failure to meet the notice

requirements of former sections 29-20-301 and 29-20-302. At the time of Krisinda’s injury,

these statutes provided that:

29-20-301. Notice as condition precedent to

recovery. -- Any person having a claim for injury to person or

property against a governmental entity or its employee must

give written notice, as provided for in § 29-20-302, to said
5See Doe v. Coffee County Bd. of Educ., 852 S.W .2d 899, 903-04 n.2 (Tenn. App. 1992); Collier v.

Mem phis Light, Gas & W ater Div., 657 S.W .2d 771, 775 (Tenn. App. 1983). In this regard, section 29-20-

305(b) provides that actions under the Governmental Tort Liability Act “must be commenced within twelve (12)

months after the cause of action arises.” T.C.A. § 29-20-305(b) (1980 & Supp. 1996).

12

governmental entity as a condition precedent to any recovery

from said governmental entity or employees.

29-20-302. Time for filing notice -- Contents and

form of claim. -- (a) A claim against a governmental entity

shall be forever barred whether or not this statute be pled in

bar of such action, unless notice thereof is filed within one

hundred twenty (120) days after the cause of action arises

except where the cause of action arises out of injury resulting

from the operation of a motor vehicle.

(b) . . . .

(c) This section shall not be strictly construed where the

municipality should have reasonably apprised itself of the

occurrence of the incident or could have done so with the

exercise of proper diligence.

T.C.A. §§ 29-20-301, 29-20-302 (1980). The failure to meet these notice requirements is

“a valid and complete defense to any liability of a governmental entity which might

otherwise exist” by virtue of the Tennessee Governmental Tort Liability Act. T.C.A.

§ 29-20-303 (1980).

CitingTennesseeCodeAnnotated section 29-20-104, Krisinda, through her parents,

contends that the foregoing notice provisions are not applicable to minors. Section

29-20-104(b) provides that, “[n]otwithstanding any other provision of law to the contrary,

the provisions of §§ 28-1-106 -- 28-1-108 shall apply in causes of action arising pursuant

to this chapter.” T.C.A. § 29-20-104(b) (1980) (emphasis added).

While sections 29-20-104(b) and 28-1-106 effectively extend the time in which

minors may bring suit under the Governmental Tort Liability Act,5

 the Eastern Section of

this court has held that injured minors are not immune from the Act’s former notice

requirements. Schorn v. Oak Ridge Schools, 1989 WL 109475, at *3 n.1 (Tenn. App.

1989). In so holding, the court relied on Robinson v. City of Memphis, 105 S.W.2d 101

(Tenn. 1937), wherein the Supreme Court of Tennessee stated that:

[A] notice of this character, which is a prerequisite to the

bringing of a suit, is mandatory. The liability of the city is

statutory, and the statute is a limit on that liability; no
13

exceptions as to persons is made in the statute and none can

be supplied by the courts. It imposes upon all persons,

whether minors or not, the obligation to serve such notice in

order to maintain an action. The liability of a city for injuries of

this character rests exclusively upon express or implied

provisions of the statute; it is therefore competent for the

Legislature to limit such liability or remove it entirely.

Robinson, 105 S.W.2d at 102.

In accordance with the court’s decision in Tucker v. Metropolitan Government, 686

S.W.2d 87 (Tenn. App. 1984), we conclude that the notice given in this case did not

comply with the foregoing statutory notice requirements. In Tucker, as in the present case,

the plaintiff argued that the defendant hospital had notice of an alleged incident of medical

malpractice through the plaintiff’s hospital records. Tucker, 686 S.W.2d at 91. By virtue

of the information contained in the hospital’s own records, the plaintiff insisted, the hospital

was reasonably apprised of the occurrence of the incident out of which the plaintiff’s claim

arose. Id. The court rejected this argument, reasoning that:

[T]he question arises as to what person in the governmental

entity must be “reasonably apprised.” We believe that the

intent of the legislature was to stipulate that even the less than

strict construction as to notice provision was to refer to the

same party who must receive written notice, that is, the chief

administrative officer. In the instant case, at the very least, the

chief administrative officer of [the hospital] would have to be

“reasonably apprised . . . of the occurrence of the incident” out

of which the claim arose. There is no evidence that the chief

administrative officer had any such knowledge merely by virtue

of the Plaintiff’s . . . medical records.

Id.

We likewise reject the argument in this case that Krisinda’s hospital records

reasonably apprised the Defendant Hospital of the occurrence of the alleged malpractice

incident. In support of this notice argument, Krisinda’s counsel points out that Krisinda’s

hospital records contain a notation by a treating pediatrician that seizures which Krisinda

suffered shortly after her birth were, in the pediatrician’s opinion, the result of “perinatal

asphyxia.” The record, however, contains no evidence that the chief administrative officer

or anyone else in authority at the hospital was apprised of this information. Accordingly,
14

the trial court properly entered summary judgment in favor of the Hospital based on this

defense.

The trial court’s judgment in favor of the Hospital is affirmed; however, the judgment

in favor of Dr. Hammond and The Jackson Clinic is hereby reversed, and this cause is

remanded for further proceedings consistent with this opinion. Costs on appeal are taxed

to Dr. Hammond and The Jackson Clinic, for which execution may issue if necessary.

 

HIGHERS, J.

CONCUR:

 

CRAWFORD, P.J., W.S.

 

HAYES, J.