Mental Incompetence Does Not Toll the Medical Malpractice Statute of Repose
posted on February 20th, 2008 in Statute of Repose by clintIn Mills v. Wong, 155 S.W.3d 916 (Tenn.2005), the plaintiffs filed their complaint for medical malpractice approximately three weeks after the three-year medical malpractice statute of repose had expired. See TENN.CODE ANN. ยง 29-26-116(a)(3). The defendants moved to dismiss the case as time-barred. In response, the plaintiffs argued that their case should not be time-barred because the primary plaintiff was mentally incompetent during most of the repose period. Specifically, the plaintiffs contended that constitutional due process requires tolling the statute of repose during the period of a plaintiff’s mental incompetence. The trial court disagreed, and the Supreme Court affirmed. By statute, the absolute temporal bar imposed by the medical malpractice statute of repose may be tolled only in exceedingly limited circumstances. The statute of repose expressly provides for tolling on the basis of (1) fraudulent concealment or (2) leaving objects in the body, but it says nothing about mental incompetence. The absence of an express tolling provision for mental incompetence, when tolling is expressly provided for on other grounds, show that the legislature did not intend not to provide for tolling for mental incompetence. By the way, the statute of repose is constitutional as well. Remember this case in conjunction with Calaway v. Schucker, 193 S.W.3d 509 (Tenn.2005), which overruled the minority exception to the medical malpractice statute of repose.