Eddie C. Pratcher, Jr. v. Methodist Healthcare Memphis Hospitals

IN THE SUPREME COURT OF TENNESSEE

AT JACKSON

November 8, 2012 Session Heard at Memphis

EDDIE C. PRATCHER, JR. v. METHODIST HEALTHCARE MEMPHIS

HOSPITALS ET AL.

Appeal by Permission from the Circuit Court for Shelby County

No. CT-0070011-00 Donna M. Fields, Judge

No. W2011-01576-SC-S09-CV - Filed June 28, 2013

The primary issue in this interlocutory appeal is whether the Tennessee health care liability

statute of repose, Tenn. Code Ann. § 29-26-116(a)(3) (2012) (“the statute of repose”), is an

affirmative defense under Tenn. R. Civ. P. 8.03, that is waived if not raised in a timely

manner. Sandra Y. Jones Pratcher died following complications that arose on December 4,

1999, when she received anesthesia before undergoing a cesarean section. On December 1,

2000, her husband, Eddie C. Pratcher, Jr., (“Plaintiff”) filed suit against various health care

providers, including Consultants in Anesthesia, Inc. (“Defendant”) and one of its nurse

anesthetists. Plaintiff alleged that Defendant, which contracted with the hospital to provide

anesthesia services to its obstetric patients, was vicariously liable for the negligent acts of its

nurse anesthetist. Plaintiff amended his complaint on March 3, 2006, to assert that

Defendant was also vicariously liable for the negligent actions of its corporate owner and

president, Dr. Chauhan, who was on call on December 4, 1999, but failed to come to the

hospital to administer anesthesia to Plaintiff’s wife. Plaintiff amended his complaint two

more times and each time asserted that Defendant was vicariously liable for the negligent acts

of Dr. Chauhan. Defendant did not raise the statute of repose as a defense to the vicarious

liability claim based on Dr. Chauhan’s alleged negligence. After the jury returned a verdict

for all defendants, the trial court set aside the verdict based on an error in the verdict form

and its disapproval of the verdict as thirteenth juror. After the trial court granted a new trial

as to all parties, Defendant moved to dismiss the case based on the statute of repose and to

amend its answer to assert a statute of repose defense. The trial court ruled that Defendant

had waived the statute of repose defense and denied the motions. We hold that (1) the

running of the statute of repose does not deprive the trial court of subject matter jurisdiction;

and (2) as Rule 8.03 explicitly states, the statute of repose is an affirmative

defense. Defendant failed to timely raise the statute of repose as an affirmative

defense. Therefore, the trial court did not abuse its discretion by denying Defendant’s post-

trial motion to amend its answer to assert the statute of repose as a defense. The judgment

of the trial court is affirmed.

Tenn. R. App. P. 9 Interlocutory Appeal; Judgment of the Circuit Court Affirmed;

Case Remanded to the Circuit Court

S HARON G. L EE, J., delivered the opinion of the Court, in which G ARY R. W ADE, C.J., and

J ANICE M. H OLDER and C ORNELIA A. C LARK, JJ., joined. W ILLIAM C. K OCH, J R., J., filed a

dissenting opinion.

Robert A. Talley, Kenneth Shuttleworth, and Jessica M. Hackett, Memphis, Tennessee, for

the appellant, Consultants in Anesthesia, Inc.

Randall L. Kinnard and Daniel L. Clayton, Nashville, Tennessee; Steven R. Walker,

Oakland, Tennessee, for the appellee, Eddie C. Pratcher, Jr.

OPINION

I.

On Saturday morning, December 4, 1999, Sandra Y. Jones Pratcher, who was thirty-

six weeks pregnant, was feeling ill. After she vomited what appeared to be blood, Plaintiff

took her to the emergency room at Methodist Hospital-Central in Memphis.

Mrs. Pratcher was thirty-four years old, weighed 280 pounds, and suffered from

hypertension. After being admitted through the emergency room, she was taken to the labor

and delivery unit of the hospital. Dr. Alison Mullaly, the resident obstetrician on call,

determined that Mrs. Pratcher’s blood pressure was high. Dr. Mullaly decided to induce Mrs.

Pratcher’s labor and deliver the baby. When the baby’s heart rate began to fluctuate

downward, Dr. Mullaly decided the baby needed to be delivered by cesarean section.

Defendant had an exclusive contract to provide anesthesia services in the obstetrical

labor and operating rooms at Methodist Hospital-Central. Defendant agreed to provide its

services twenty-four hours a day, seven days a week. After Mrs. Pratcher was taken to the

operating room, Irene C. Wadlington, a Certified Registered Nurse Anesthetist employed by

Defendant, began preparing for the anesthesia process. Before Mrs. Pratcher’s surgery

began, Ms. Wadlington was called away to another operating room to assist a patient who

was having an emergency cesarean section. Defendant had no other personnel in the hospital

to administer Mrs. Pratcher’s anesthesia. Dr. Dinesh Chauhan, the owner and president of

Defendant, was at his home that Saturday afternoon and evening. When a nurse called him

to come to the hospital, Dr. Chauhan indicated that with holiday traffic, he was forty-five

minutes away. Dr. Chauhan did not go to the hospital, and instead Dr. Philip Andrew Rojas,

an anesthesiologist employed by the Medical Anesthesia Group, was requested to provide

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anesthesia for the surgery. Although Dr. Rojas did not work in the labor and delivery

operating unit, he agreed to administer anesthesia to Mrs. Pratcher.

Almost immediately after Dr. Rojas administered the first anesthetic drugs to Mrs.

Pratcher through an intravenous catheter, she began having respiratory distress. Multiple

attempts were made to establish an airway, but Mrs. Pratcher stopped breathing and went into

cardiac arrest. An endotracheal tube was inserted and medical staff were able to revive Mrs.

Pratcher’s heart, but she suffered injuries to her brain from the lack of oxygen. Mrs.

Pratcher’s doctors successfully delivered Mrs. Pratcher’s baby, but Mrs. Pratcher lapsed into

a coma and was taken to the intensive care unit. Mrs. Pratcher remained in a coma and died

on January 19, 2000.

II.

On December 1, 2000, Plaintiff, as surviving spouse and next friend of Mrs.

Pratcher’s three minor children,1 filed a complaint alleging medical negligence against

(1) Methodist Healthcare-Memphis Hospitals (“Methodist Hospital”); (2) Dr. Rojas;

(3) Medical Anesthesia Group as the employer of Dr. Rojas; (4) Ms. Wadlington; and

(5) Defendant as the employer of Ms. Wadlington.2 Plaintiff contended that the named

defendants’ negligence proximately caused his wife’s injuries on December 4, 1999, and her

death on January 19, 2000. As to Defendant, the complaint specifically asserted a vicarious

liability claim based on respondeat superior due to the alleged negligence of Ms.

Wadlington, Defendant’s employee and agent. Initially, Plaintiff did not sue Dr. Chauhan

or include a vicarious liability claim against Defendant for any alleged negligence by Dr.

Chauhan.

On January 3, 2001, Plaintiff filed an amended complaint, asserting the same

allegations against Defendant. Defendant answered the amended complaint on May 30,

2001, denying any negligence and contending that the amended complaint failed to state a

claim upon which relief may be granted. Defendant also pleaded the statute of limitations

and comparative fault as defenses.

1

The complaint was originally filed by Plaintiff and Mrs. Pratcher’s three minor children. Before

trial, the trial judge granted a motion to dismiss the minor children, finding they were not proper parties to

the lawsuit.

2

Plaintiff’s complaint also named several other defendants who were later nonsuited and are not

involved in this appeal.

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On December 4, 2002, the statute of repose for health care liability ran on Plaintiff’s

claims. The statute provides in pertinent part that “[i]n no event shall any such [health care

liability] action be brought more than three (3) years after the date on which the negligent act

or omission occurred.” Tenn. Code Ann. § 29-26-116(a)(3) (2012).

On November 1, 2005, Dr. Rojas and Medical Anesthesia Group filed a motion for

leave to file an amended answer, alleging comparative fault against Defendant and Dr.

Chauhan. The trial court granted this motion, and Dr. Rojas filed an amended answer on

March 15, 2006.

On March 3, 2006, Plaintiff filed a second amended complaint with leave of court,

asserting that Defendant was vicariously liable for the negligent acts of Dr. Chauhan and Ms.

Wadlington. The amended complaint alleged that Dr. Chauhan failed to come to the hospital

on December 4, 1999, when he was needed. Defendant did not answer the second amended

complaint and, thus, failed to assert a defense based on the statute of repose.

On April 21, 2006, Plaintiff filed a third amended complaint with leave of court

similar to the second amended complaint, alleging Defendant was vicariously liable for the

negligence of Dr. Chauhan and Ms. Wadlington. Defendant did not answer the third

amended complaint and, thus, again failed to raise a statute of repose defense.

On July 3, 2006, Plaintiff filed a fourth amended complaint with leave of court,

alleging Defendant negligently breached its contract with Methodist Hospital because Dr.

Chauhan failed to provide anesthesia care. On August 15, 2006, Defendant answered the

fourth amended complaint, alleging that the complaint failed to state a cause of action upon

which relief could be granted. Defendant’s answer did not raise the statute of repose as a

defense.

The pretrial order listed the contentions of the parties, including Plaintiff’s contention

that Ms. Wadlington, Dr. Chauhan, and Defendant were all at fault. A jury heard the case

from September 11 to 22, 2006. As a part of his proof, Plaintiff introduced expert testimony

that Dr. Chauhan and Ms. Wadlington deviated from the applicable standards of care.

At the close of Plaintiff’s proof, the trial judge granted a directed verdict as to the

direct negligence of Methodist Hospital. The case proceeded as to Medical Anesthesia

Group as the employer of Dr. Rojas, Dr. Rojas, Defendant as the employer of Ms.

Wadlington and Dr. Chauhan, and Ms. Wadlington. When jury deliberations began on

September 21, 2006, the trial court gave the jury a verdict form that provided in pertinent

part:

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1. Do you find the Defendants, DR. PHILIP ANDREW

ROJAS/MEDICAL ANESTHESIA GROUP, to be at fault?

Answer: ________ (YES or NO)

2. Do you find the Defendants, IRENE C. WADLINGTON,

CRNA/CONSULTANTS IN ANESTHESIA, INC. to be at fault?

Answer: _______ (YES or NO)

(. . . If you answered Questions Number 1 and 2 “NO” sign the verdict form

and notify the Court Officer.)

...

During deliberations, the jury asked the following question about the verdict form concerning

Dr. Chauhan: “There is no question on the verdict form that specifically addresses Dr.

Chauhan as a separate Defendant. Should there be? Or is Dr. Chauhan synonymous with

Consultants in Anesthesia, Inc., in question number two?”

Plaintiff’s counsel argued that the trial court should add a third question to the verdict

form, asking whether Defendant was at fault for the negligence of Dr. Chauhan. Defendant’s

counsel countered that the verdict form was sufficient since there was no claim against Dr.

Chauhan individually. The trial judge did not change the verdict form but instructed the

jurors: “If you find that Dr. Chauhan is negligent, then you must also find Defendant

Consultants in Anesthesia Incorporated is negligent.”

On September 22, 2006, the jury answered “NO” to both questions, returning a verdict

for all of the defendants at trial. Plaintiff filed a motion for a new trial arguing, in part, that

the trial court had failed to allow the jury to independently consider the fault of Defendant

based on any negligence by Dr. Chauhan. The motion included the affidavit of a juror who

said that she and several other jurors believed that Defendant was at fault through the actions

and inactions of Dr. Chauhan. She stated: “All of us felt great frustration at not being

allowed to answer questions about Consultants in Anesthesia being at fault through Dr.

Chauhan, but we were bound by the jury verdict form.” 3

Defendant responded to Plaintiff’s motion for a new trial and noted, among other

things, that the trial judge had instructed the jury that any negligence of Dr. Chauhan should

be imputed to Defendant. At the hearing on the motion for new trial, counsel for Defendant

3

Defendant objected to the affidavit of the juror, arguing it was not proper and should not be

considered by the trial court based on Tenn. R. Evid. 606(b). The inclusion of the juror’s affidavit is not an

issue in this appeal.

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argued that “your Honor rightfully re-instructed the jury that [Defendant] admits that Dr.

Chauhan is an employee of [Defendant]. If you find that Dr. Chauhan is negligent, then you

must also find [Defendant] is negligent.”

The trial judge ruled that he had made a “significant error” by not changing the jury

verdict form to deal with Dr. Chauhan’s alleged negligence. The trial judge granted Plaintiff

a new trial as to all defendants because the jury verdict form should have included a question

regarding the fault of Defendant acting through Dr. Chauhan. The trial judge also noted that

“the Court is not satisfied with the verdict [in its role as thirteenth juror] as it relates to

[Defendant] acting through Dr. Dinesh Chauhan.” The order for a new trial also directed that

a different judge in the Circuit Court for Shelby County preside over the second trial.4

On December 19, 2007, Defendant filed a motion for an interlocutory appeal

contending that the jury verdict form was adequate and that a second trial was needless. On

April 28, 2008, the original trial judge denied the motion for an interlocutory appeal.

On April 15, 2009, Defendant for the first time asserted a statute of repose defense

by filing a motion to dismiss any claims arising from the actions of Dr. Chauhan because the

statute of repose barred such claims. Defendant relied on the Tennessee Court of Appeals’

unpublished decision of Huber v. Marlow, No. E2007-01879-COA-R9-CV, 2008 WL

2199827 (Tenn. Ct. App. May 28, 2008), and argued that Plaintiff should not be able “to

breathe life into a claim that is plainly extinguished.” The basis for Defendant’s claim was

that the vicarious liability claim against Defendant had been extinguished by agent

exoneration based on the running of the statute of repose as to Dr. Chauhan. Plaintiff

responded, arguing that the running of the statute of repose is an affirmative defense, which

Defendant waived by failing to raise the defense before or during trial. Plaintiff noted that

Defendant did not answer the second or third amended complaints, and in its answer to the

fourth amended complaint did not assert the statute of repose as a defense.

On October 1, 2010, over four years after the trial, Defendant moved to amend its

answer to the fourth amended complaint to include a statute of repose defense. On October

4, 2010, the trial judge5 entered an order denying Defendant’s motion to dismiss on the

ground that Defendant waived the right to rely on the statute of repose as a defense. In light

of this ruling, the trial court denied Defendant’s motion to amend its answer as futile.

4

The judge for the first trial was Judge Robert L. Childers. The case eventually was transferred to

Judge Donna M. Fields.

5

The trial judge at this time was the Honorable Donna M. Fields.

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On July 15, 2011, the trial court granted Defendant’s motion for permission to seek

an interlocutory appeal under Tenn. R. App. P. 9. The Court of Appeals denied Defendant’s

request for an interlocutory appeal. This Court granted Defendant’s application to appeal.

III.

The issues we address are (1) whether the statute of repose is an affirmative defense

under Tenn. R. Civ. P. 8.03 and, if so, whether the statute of repose is generally waived if not

timely raised; and (2) whether the trial court abused its discretion in denying Defendant’s

belated request to rely on the statute of repose as a defense.

There are no material facts in dispute. The issues we review require statutory

construction, which presents a question of law that is reviewed de novo without a

presumption of correctness. Myers v. AMISUB (SFH), Inc., 382 S.W.3d 300, 308 (Tenn.

2012); Estate of French v. Stratford House, 333 S.W.3d 546, 554 (Tenn. 2011). Similarly,

“[i]nterpretation of the Tennessee Rules of Civil Procedure is a question of law, which we

review de novo with no presumption of correctness.” Thomas v. Oldfield, 279 S.W.3d 259,

261 (Tenn. 2009).

The first issue we address is whether the statute of repose is an affirmative defense

under Rule 8.03 and, if so, whether the statute of repose is generally waived if not timely

raised. Defendant argues that the running of the statute of repose deprives the court of

subject matter jurisdiction and, thus, the statute of repose is not an affirmative defense that

can be waived. Defendant relies on Bruce v. Hamilton, 894 S.W.2d 274 (Tenn. Ct. App.

1993), in which the Court of Appeals dismissed a health care liability lawsuit because it was

filed outside of the three-year statute of repose. In Bruce, the Court of Appeals explained

that the statute of repose is “a substantive provision” that “extinguishes the right itself and

divests the . . . court of any subject matter jurisdiction which it might otherwise have.” Id.

at 276 (citing Cheswold Volunteer Fire Co. v. Lambertson Constr. Co., 489 A.2d 413, 421

(Del. 1984)).

Bruce, however, is not persuasive. First, we overruled Bruce in Cronin v. Howe, 906

S.W.2d 910, 913 n.3 (Tenn. 1995), as it related to the interaction of the savings statute with

the statute of repose. Second, while the application of a statute of repose bars the claim, it

does not divest a court of jurisdiction over the case. As the Washington Court of Appeals

explained, a statute of repose “does not affect the court’s jurisdiction; rather, statutes of

repose, like statutes of limitation, attach to and bar only the claim itself.” In re Estates of

Palmer, 187 P.3d 758, 763 (Wash. App. 2008). Similarly, a Florida appeals court has noted

“the [s]tatute of [r]epose cannot be equated with subject matter jurisdiction.” Square D Co.

v. State Farm Fire & Cas. Co., 610 So. 2d 522, 522 (Fla. Dist. Ct. App. 1992). Statutes of

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repose and statutes of limitation do not deprive courts of subject matter jurisdiction. As

United States Supreme Court Justice Ginsburg explained: “It is anomalous to classify time

prescriptions, even rigid ones, under the heading ‘subject matter jurisdiction.’” Carlisle v.

United States, 517 U.S. 416, 434 (1996) (Ginsburg, J., concurring); see also Bode v. Minn.

Dep’t of Natural Res., 594 N.W.2d 257, 260 (Minn. Ct. App. 1999) (“A court may very well

have the subject-matter jurisdiction to adjudicate the case, but rules of procedure or statutes

of repose prevent the exercise of the jurisdiction.”). Accordingly, the running of the statute

of repose does not deprive the court of subject matter jurisdiction.

Next, Defendant argues that the statute of repose is substantive and is, therefore, an

affirmative defense that cannot be waived. The statute provides:

(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.6

Tenn. Code Ann. § 29-26-116(a)(3) (emphasis added).

Defendant emphasizes the unyielding language of the statute through its use of the

phrase “in no event.” Defendant argues the statute vests a substantive right in a medical

provider to be free from suits filed more than three years after a negligent act. We agree that

the statutory language provides protection against suits filed more than three years after the

negligent act. The statutory language, however, does not authorize Defendant to sit on its

hands and not assert the defense. Our rules of procedure require that matters be raised before

trial if a party intends to rely on them. To hold otherwise would be to invite parties to lie in

wait and, after a long and expensive trial, assert a defense.

Rule 8.03 provides a list of affirmative defenses and dictates how and when they must

be raised:

In pleading to a preceding pleading, a party shall set forth affirmatively facts

in short and plain terms relied upon to constitute accord and satisfaction,

arbitration and award, express assumption of risk, comparative fault (including

the identity or description of any other alleged tortfeasors), discharge in

6

In addition to the fraudulent concealment exception to the three-year period of repose, the statute

contains an exception for cases where a foreign object is negligently left in a patient’s body. Tenn. Code

Ann. § 29-26-116(a)(4). Neither statutory exception applies here.

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bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, laches,

license, payment, release, res judicata, statute of frauds, statute of limitations,

statute of repose, waiver, workers’ compensation immunity, and any other

matter constituting an affirmative defense.

(Emphasis added). Rule 8.03 was amended effective July 1, 2006, to specifically include the

statute of repose and workers’ compensation immunity as listed affirmative defenses. See

Advisory Commission Comment to 2006 Amendment.

As a general rule, a party waives an affirmative defense if it does not include the

defense in an answer or responsive pleading. See Tenn. R. Civ. P. 12.08; Estate of Baker v.

King, 207 S.W.3d 254, 265 (Tenn. Ct. App. 2006) (noting that “affirmative defenses that are

not properly raised are waived”); Thompson, Breeding, Dunn, Creswell & Sparks v. Bowlin,

765 S.W.2d 743, 744 (Tenn. Ct. App. 1987) (citing Tenn. R. Civ. P. 12.08); see also Allgood

v. Gateway Health Sys., 309 S.W.3d 918, 925 (Tenn. Ct. App. 2009) (identifying

insufficiency of process as an affirmative defense that must be included in the answer or

waiver will result); Lawrence A. Pivnick, Tennessee Circuit Court Practice, § 12.4 (2012)

(“An affirmative defense generally must be asserted in an answer . . . .”); Donald F. Paine,

The Need to Plead Affirmative Defenses, 45 Tenn. B.J. 33, 33 (Sept. 2009) (“Affirmative

defenses are speed traps. Plead them or pay the penalty.”). This rule, however, is not rigid

and inflexible because trial judges have wide latitude to allow a defendant to amend its

answer before trial. Biscan v. Brown, 160 S.W.3d 462, 471 (Tenn. 2005) (“The rules relating

to amendment of pleadings are liberal, vesting broad discretion in the trial court.”).

Conflicts between provisions of the Tennessee Rules of Civil Procedure and

Tennessee statutes which cannot be harmonized are resolved in favor of the Rules of Civil

Procedure. Tenn. Code Ann. § 16-3-406 (2009) (“After the rules have become effective, all

laws in conflict with the rules shall be of no further force or effect.”); Mid-South Pavers, Inc.

v. Arnco Constr., Inc., 771 S.W.2d 420, 422 (Tenn. Ct. App. 1989). The Rules “shall not

abridge, enlarge or modify any substantive right, and shall be consistent with the

constitutions of the United States and Tennessee.” Tenn. Code Ann. § 16-3-403 (2009).

The United States Court of Appeals for the Sixth Circuit recognized the possible

tension between the statute of repose and Rule 8.03 in Montgomery v. Wyeth, 580 F.3d 455

(6th Cir. 2009). In a footnote, the Sixth Circuit wrote that the statute of repose was

“probably not” waivable, but then noted the specific language of Rule 8.03 including the

statute of repose as an affirmative defense. Id. at 468 n.7.

The Tennessee Court of Appeals has not been as ambivalent. It recognized the statute

of repose as an affirmative defense in Woodard v. Gross, No. W2011-02316-COA-R3-CV,

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2012 WL 3893519, at *8 (Tenn. Ct. App. Sept. 10, 2012) (“[A] defendant who relies on an

affirmative defense, such as the statute of repose, in a summary judgment motion, must point

to undisputed facts that establish the defense.”). We implicitly acknowledged the statute of

repose as an affirmative defense in Hannan v. Alltel Publ’g Co., 270 S.W.3d 1, 6 (Tenn.

2008), when we quoted Rule 8.03’s listing of affirmative defenses.

The statute of repose and Rule 8.03 can exist harmoniously. The statute of repose bars

a suit brought against a health care provider more than three years after the date of the

negligent act, but Rule 8.03 requires that the defense must be asserted as an affirmative

defense in the answer or other pleadings before trial. “The failure to assert a claim or

defense in a timely manner is deemed a waiver of the right to rely on the claim or defense

later in the proceeding.” Rawlings v. John Hancock Mut. Life Ins. Co., 78 S.W.3d 291, 300

(Tenn. Ct. App. 2001). “Failure to comply with Rule 8.03 will result in a waiver of the

defense.” Allgood, 309 S.W.3d at 925.

A generic invocation of the words “failure to state a claim” cannot be used as a

vehicle to assert an affirmative defense. An affirmative defense must be “specifically

pleaded.” George v. Bldg Materials Corp. of Am., 44 S.W.3d 481, 486 (Tenn. 2001). Rule

8.03 clearly contains a “specificity requirement.” Allgood, 309 S.W.3d at 925. Rule 8.03

requires that a party “set forth affirmatively facts in short and plain terms relied upon to

constitute . . . [a] statute of repose” defense. “Conclusory allegations” do not satisfy the

specificity requirements of Rule 8.03. ACG, Inc. v. Se. Elevator, Inc., 912 S.W.2d 163, 170

(Tenn. Ct. App. 1995); see also In re Estate of Brown, __S.W.3d__, No. E2011-00179-SC-

R11-CV, 2013 WL 1173935, at *4 (Tenn. Mar. 22, 2013) (“[U]nlike challenges to subject

matter jurisdiction which cannot be waived, defenses based on the statute of limitations are

affirmative defenses that can be waived unless they are specifically pleaded.”); George, 44

S.W.3d at 487 (“The specific pleading requirements of [Rule] 8.03 are designed to prevent

trial by ambush. . . .”).

A leading purpose of the Tennessee Rules of Civil Procedure is to ensure the “just,

speedy and inexpensive determination of every action.” Tenn. R. Civ. P. 1. Raising the

statute of repose defense for the first time more than three years after the expiration of the

statute of repose, the filing of the second, third, and fourth amended complaints, and after a

multi-week trial, is not “just, speedy and inexpensive.” Rather, it is the epitome of “undue

delay” and results in needless and protracted litigation.

Defendant focuses on the designation of the statute of repose as substantive instead

of procedural. Some of our prior decisions have placed great emphasis on this

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distinction. This Court, in a divided 3-2 opinion,7 relied on the substantive nature of statutes

of repose to overrule two prior decisions and find that “a plaintiff’s minority does not toll the

statute of repose.” Calaway ex rel. Calaway v. Schucker, 193 S.W.3d 509, 517 (Tenn.

2005). However, the procedural/substantive distinction is not always “the decisive

factor.” Cronin, 906 S.W.2d at 914. In Cronin, we harmonized the statute of repose with

the savings statute8 to allow a plaintiff to rely upon the savings statute to nonsuit and then

refile a medical negligence lawsuit outside of the three-year statute of repose. We held this

to be the case even though both the nonsuit and the refiling occurred outside the three-year

period. Id. at 914-15. Similarly, in this case, we have found that a harmonious construction

exists between the health care liability statute of repose and Rule 8.03. The statute of repose

bars a suit brought against a principal health care provider more than three years after the

date of an agent’s negligent act, but the defense must be asserted as an affirmative defense

in pleadings before trial.

The designation of the statute of repose as “substantive” does not provide talismanic

immunity from fundamental rules of civil procedure. Some jurisdictions have focused on the

substantive nature of statutes of repose and determined they cannot be waived. The Arkansas

Supreme Court held that a statute of repose is not an affirmative defense and can be raised

on appeal. Ray & Sons Masonry Contractors, Inc. v. U.S. Fid. & Guar. Co., 114 S.W.3d

189, 219 (Ark. 2003). The Delaware Supreme Court determined a statute of repose “may not

be waived and may be raised at any time during the proceedings.” Cheswold, 489 A.2d at

421.9 The Pennsylvania Supreme Court similarly determined “a statute of repose is not

waived if not pled as an affirmative defense, and may be raised for the first time in a motion

for nonsuit, directed verdict, or judgment n.o.v.” Vargo v. Koppers Co., 715 A.2d 423, 425

n.1 (Pa. 1998). However, those jurisdictions, unlike Tennessee, do not have a rule of civil

procedure that specifically lists the statute of repose as an affirmative defense.

Jurisdictions that treat statutes of repose as affirmative defenses, as Tennessee does,

have determined that they can be waived. The Texas Supreme Court has explained, “[A]s

7

Justice Holder, joined by then-Chief Justice E. Riley Anderson, dissented, noting that in 1858, a

legal disability statute providing tolling for minors was enacted. She concluded that Tenn. Code Ann. § 28-1-

106 “tolls the medical malpractice statute of repose during the plaintiff’s minority.” Calaway ex rel.

Calaway v. Schucker, 193 S.W.3d 509, 521 (Tenn. 2005) (Holder, J., dissenting).

8

Tenn. Code Ann. § 28-1-105(a) (2000).

9

The Delaware Supreme Court cautioned, however, that the statute of repose defense “should be

raised promptly as a matter of fair notice” under court rules. Cheswold, 489 A.2d at 421-22.

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an affirmative defense, the statute of repose is only available to parties that properly raise it

in the trial court.” Fed. Deposit Ins. Corp. v. Lenk, 361 S.W.3d 602, 609 (Tex.

2012). Significantly, this Texas high court reached this result even though it considered the

statute of repose to be a “substantive definition of rights.” Id. Although an Illinois health

care liability statute contained “in no event” language similar to Tennessee’s, a state appeals

court found that “statutes of repose are affirmative defenses subject to forfeiture.” McRaith

v. BDO Seidman, LLP, 909 N.E.2d 310, 327 (Ill. App. Ct. 2009). The court explained, “The

pertinent Illinois statutes and authority . . . do not support an interpretation of the ‘in no

event’ language as mandatory.” Id. at 323. Instead, the court noted that the legislature had

enacted exceptions that tolled various statutes of repose, such as cases of fraudulent

concealment. The Alabama Supreme Court ruled that a bank waived its affirmative defense

of the statute of repose in a case involving the payment of unauthorized checks. Pinigis v.

Regions Bank, 942 So. 2d 841, 847 (Ala. 2006). A Colorado appeals court determined that

a statute of repose in real property cases was an affirmative defense that a defendant needed

to raise “in a timely manner.” Dunton v. Whitewater W. Recreation Ltd., 942 P.2d 1348,

1351 (Colo. App. 1997). Some secondary sources also explain that statutes of repose are

affirmative defenses that can be waived or forfeited.10

Defendant also contends that the application of Rule 8.03 before July 1, 2006, would

constitute an impermissible retrospective law in violation of Tenn. Const. Article I,

§ 20.11 We find this argument unpersuasive. Defendant notes that the statute of repose ran

in December 2002—well before the amendment to Rule 8.03 became effective in July

2006. Under Defendant’s reasoning, the Court should not allow a rule that went into effect

in 2006 to apply to earlier conduct. This ignores the fact that the statute of repose was an

affirmative defense prior to the adoption of the 2006 amendment to Rule 8.03. Before the

2006 amendment, the statute of repose was included in the rule’s catch-all language—“any

10

54 C.J.S. Limitations of Actions § 28, Statutes of Repose (“Statutes of repose are affirmative

defenses subject to forfeiture if not asserted.”); 16 David K. DeWolf and Keller W. Allen, Washington

Practice Series: Tort Law and Practice, § 9.1.50 (3d ed. 2012) (“Although it is based in different policy

considerations and operates differently from a statute of limitations, a statute of repose is still an affirmative

defense; unless the defendant properly and timely asserts the defense, a plaintiff may still be allowed to

recover on the merits of the claim.”); Robin Miller, Annotation, Effect of Fraudulent or Negligent

Concealment of Patient’s Cause of Action on Timeliness of Action Under Medical Malpractice Statute of

Repose, 19 A.L.R. 6th 475, § 3 (2006) (“In most jurisdictions, the defense of repose is an affirmative defense

on which the defendant bears the burden of proof at trial.”); Jay M. Zitter, Annotation, Validity and

Construction of Statute Terminating Right of Action for Product-caused Injury at Fixed Period After

Manufacture, Sale or Delivery of Product, 30 A.L.R. 5th 1, § 2(b) (1995) (“As with any other type of

affirmative defense, the defendant may waive the enforcement of the statute of repose.”).

11

Tenn. Const. art. I, § 20 provides: “That no retrospective law, or law impairing the obligation of

contracts, shall be made.”

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other matter constituting an affirmative defense.” Donald F. Paine, a learned commentator

and respected member of the Advisory Commission on the Rules of Practice and Procedure,

explained: “These defenses [statute of repose and workers’ compensation immunity] were

formerly encompassed by the language ‘any other matter constituting an affirmative

defense.’” Donald F. Paine, The 2006 Rule Amendments, 42 Tenn. B.J. 29, 29 (July 2006).

On several occasions prior to the 2006 amendment to Rule 8.03, Tennessee appellate

courts described the health care liability statute of repose as an affirmative defense. See

Biscan, 160 S.W.3d at 486 (Drowota, C.J., concurring in part and dissenting in part) (“The

tortfeasors . . . were protected from liability by an affirmative defense—a statute of

repose—not by a statute granting blanket immunity.”); Hawk v. Chattanooga Orthopaedic

Grp. P.C., 45 S.W.3d 24, 28 (Tenn. Ct. App. 2000) (“It is clear that the bases of their

dismissal motion are the affirmative defenses of the statute of limitations and the statute of

repose.”); Mayers v. Miller Med. Grp., No. 01A01-9802-CV-00101, 1998 WL 848095, at *2

(Tenn. Ct. App. Dec. 8, 1998) (“As affirmative defenses, all defendants pleaded . . . the three

year statute of repose provided by Tennessee Code Annotated section 29-26-

116(3).”). Because we find that the statute of repose was an affirmative defense under Rule

8.03 even before its explicit listing in 2006, we need not address in more depth Defendant’s

argument under the Tennessee Constitution regarding retrospective laws.

Defendant argues that a ruling that Rule 8.03 is an affirmative defense and can be

waived if not timely asserted would violate the separation of powers doctrine under Tenn.

Const. art. II, § 2.12 This is unpersuasive. “Only the Supreme Court has the inherent power

to promulgate rules governing the practice and procedure of the courts of this state.” State

v. Mallard, 40 S.W.3d 473, 481 (Tenn. 2001). The General Assembly ratifies and approves

changes to the rules of civil procedure. Furthermore, there is nothing unconstitutional about

applying the concept of waiver to defendants in health care liability suits who fail to raise

affirmative defenses in a timely manner—particularly those defendants who repeatedly fail

to assert the defense before trial. This is not a novel concept in American jurisprudence. The

legal system routinely allows criminal defendants to waive the most fundamental of

12

Tenn. Const. art. II, § 2 provides: “No person or persons belonging to one of these departments

shall exercise any of the powers properly belonging to either of the others, except in the cases herein directed

or permitted.”

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constitutional rights including the constitutional right to a jury trial,13 the assistance of

counsel,14 and the right to a “constitutionally qualified judge.” 15

Defendant contends that declaring the statute of repose to be an affirmative defense

(as Rule 8.03 does in clear language) will unleash a “multitude” of frivolous lawsuits. We

find this argument unpersuasive. Earlier this year, we rejected a similar argument when we

held that a due process claim could toll the statute of limitations under the Tennessee Post

Conviction Procedure Act of 1995. State v. Whitehead, __ S.W.3d __, No. W2010-00784-

SC-R11-PC, 2013 WL 1163919, at *14 (Tenn. Mar. 21, 2013) (“We do not expect this slight

adjustment in our jurisprudence to open the floodgates of due process tolling.”). We

anticipate that when the statute of repose is applicable, defense counsel will promptly assert

it.

We hold that the statute of repose is an affirmative defense that is generally waived

if not timely raised. Defendant argues that, under the facts of this case, waiver is not

appropriate. At oral argument before this Court, counsel for Defendant asserted that the

delay in raising the statute of repose defense was because the law regarding the liability of

a principal for the acts of an agent in a health care liability case was “not really decided” until

the Tennessee Court of Appeals issued its unpublished decision in Huber v. Marlow, No.

E2007-01879-COA-R9-CV, 2008 WL 2199827 (Tenn. Ct. App. May 28, 2008). In Huber,

the plaintiffs filed a suit against Dr. Douglas Marlow and his employer, Internists of

Knoxville, PLLC, for the wrongful death of the plaintiffs’ mother. More than three years

after the alleged negligent act, the plaintiffs amended their complaint to assert a new

vicarious liability claim against Internists of Knoxville based on the alleged negligence of

Dr. David Rankin, a non-party doctor employed by Internists of Knoxville. Id. at

*1. Internists of Knoxville promptly asserted the statute of repose as a defense and argued

it could not be held liable for the alleged negligent acts of Dr. Rankin when Dr. Rankin had

not been sued and the three-year statute of repose had run as to him. After the trial court

granted summary judgment as to Dr. Marlow, the sole theory of liability as to Internists of

Knoxville was the vicarious liability claim based on the alleged negligence of Dr.

Rankin. The trial court granted Internists of Knoxville summary judgment. Id. at *2. On

interlocutory appeal, the Court of Appeals affirmed, ruling that the statute of repose had

extinguished the plaintiffs’ claim against Dr. Rankin, the non-party employee. Internists of

Knoxville, the employer, could not be held liable for medical negligence based solely on the

13

Seale v. Luttrell, 221 Tenn. 548, 555-56, 428 S.W.2d 312, 315 (1968).

14

State v. Coleman, 519 S.W.2d 581, 583 (Tenn. 1975).

15

State v. Blackmon, 984 S.W.2d 589, 590 (Tenn. 1998).

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negligence of a non-party defendant when the right of action against the employee had been

extinguished by operation of law. Id. at *5.

The Tennessee Court of Appeals in Huber relied on this Court’s decision in Johnson

v. LeBonheur Children’s Med. Ctr., 74 S.W.3d 338 (Tenn. 2002). In Johnson, we explained

that “a principal may not be held vicariously liable under the doctrine of respondeat superior

based upon the acts of its agents . . . when the right of action against the agent is extinguished

by operation of law.” Id. at 345. This Court reiterated the principles of Johnson a year later

in Shelburne v. Frontier Health, 126 S.W.3d 838, 844-45 (Tenn. 2003).

In Huber, as in the case before us, the right of action against the agent was

extinguished by operation of the statute of repose. Therefore, there was no basis to hold the

principal liable under the doctrine of respondeat superior. But the defendant in Huber

asserted the statute of repose before trial. In the instant case, Defendant did not. Unlike the

defendant employer in Huber, Defendant took the position during trial and even during

arguments on Plaintiff’s motion for a new trial that Defendant would be liable if Dr. Chauhan

was found negligent. A key portion of the September 2006 trial focused on Dr. Chauhan’s

alleged failure to meet the standard of care.

This is not the first time we have reviewed a trial court’s decision to deny a motion

to amend pleadings to assert an affirmative defense late in the proceedings. In George, we

affirmed a trial court’s decision to deny a defendant’s post-trial motion for leave to amend

its answer to assert a statute of limitations defense. The defendant first raised the statute of

limitations defense in a pre-trial brief, eight months after the defendant had filed its

answer. 44 S.W.3d at 485-86. At the beginning of the trial, the defendant requested that the

pleadings be amended based on Tenn. R. Civ. P. 15.02 to conform to the proof to be

presented at trial. The trial court took the matter under advisement and proceeded with the

trial. The defendant also filed a post-trial motion to amend its answer under Tenn. R. Civ.

P. 15.01, which allows the trial court to grant a motion to amend, noting that “leave shall be

freely given when justice so requires.” The trial court denied the defendant’s motions under

both Rule 15.01 and 15.02 as untimely filed. We affirmed the trial court on both respects,

finding that the trial court did not abuse its discretion in denying the defendant’s request that

the pleadings be amended to conform to the proof and in denying the defendant’s post-trial

motion to amend its answer. We adhered to the time-honored principle that “the

determination of whether to allow an amendment to the pleadings is left to the sound

discretion of the trial court.” Id. at 486.

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The defendant in George had claimed its delay was justified by an unreported

workers’ compensation panel decision released earlier that year.16 The trial court found that

the defendant’s discovery of the unreported workers’ compensation panel decision did not

justify the defendant’s delay in raising the statute of limitations defense until the eve of

trial. Id. at 487-88. In the case before us, the trial court was not persuaded that Huber

justified Defendant’s delay in asserting the statute of repose defense until three years after

the trial. Huber followed and applied Tennessee Supreme Court precedent; it was not a new

legal development. Moreover, the Court of Appeals issued its decision in Huber on May 28,

2008, and denied a petition for rehearing on July 10, 2008. The Defendant did not file its

motion to dismiss until April 15, 2009, and its motion to amend its answer until October 1,

2010.

Trial courts have broad authority to decide motions to amend pleadings and will not

be reversed absent an abuse of discretion. Hawkins v. Hart, 86 S.W.3d 522, 532 (Tenn. Ct.

App. 2001). Under the abuse of discretion standard, an appellate court cannot substitute its

judgment for that of the trial court. Williams v. Baptist Mem’l Hosp., 193 S.W.3d 545, 551

(Tenn. 2006). Numerous factors guide a trial court’s discretionary decision whether to allow

a late-filed amendment. Some of these include undue delay, bad faith by the moving party,

repeated failure to cure deficiencies by previous amendments and futility of the

amendments. Merriman v. Smith, 599 S.W.2d 548, 559 (Tenn. Ct. App. 1979). Defendant

had repeated opportunities to assert a statute of repose defense. Defendant’s conduct fell

within the ambit of “undue delay.” We hold that the trial court did not abuse its discretion

by denying Defendant’s post-trial motion to amend its answer.

Tenn. R. Civ. P. 15.01 applies equally to plaintiffs and defendants who seek to amend

their pleadings. Our ruling is consistent with previous decisions which have upheld trial

court rulings denying late-filed motions to amend. See Sallee v. Barrett, 171 S.W.3d 822,

829 (Tenn. 2005) (affirming trial court’s denial of plaintiff’s motion to amend complaint to

add in city as additional defendant); Parks v. Mid-Atlantic Finance Co., 343 S.W.3d 792, 802

(Tenn. Ct. App. 2011) (affirming trial court’s denial of plaintiff’s motion to amend complaint

to add “regurgitation” of previous allegations); In re Estate of Hawkins, 224 S.W.3d 675, 685

(Tenn. Ct. App. 2006) (affirming trial court’s denial of plaintiff’s late-filed motion to amend

complaint to add new parties); Harden v. Danek Med., Inc., 985 S.W.2d 449, 454 (Tenn. Ct.

App. 1998) (affirming trial court’s denial of plaintiff’s motion to file third amended

complaint in manufacturing defect case); Hall v. Shelby Cnty. Ret. Bd., 922 S.W.2d 543, 546

(Tenn. Ct. App. 1995) (affirming trial court’s denial of plaintiff’s motion to amend petition);

16

The trial in George began on November 20, 1998. The unreported workers’ compensation panel

decision that the defendant cited as the reason for its late-filed motion was decided on March 30, 1998.

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Welch v. Thuan, 882 S.W.2d 792, 794-95 (Tenn. Ct. App. 1994) (affirming trial court’s

denial of plaintiff’s motion to amend complaint in medical malpractice action).

Today we clarify that the statute of repose is an affirmative defense that is generally

waived if not timely raised. A defendant must assert an affirmative defense in a timely

manner to secure the “just” and “speedy” resolution of litigation. Tenn. R. Civ. P. 1. In this

case, Defendant did not answer the second and third amended complaints, and Defendant did

not plead the statute of repose in its answer to the fourth amended complaint or at any time

before trial. Defendant did not raise the statute of repose until 2009. The defense of the

statute of repose is not self-executing and unless raised in a pre-trial pleading, it is generally

waived. Plaintiff did not have fair notice of this defense, as Defendant never raised it before

trial. Tip’s Package Store, Inc. v. Commercial Ins. Managers, Inc., 86 S.W.3d 543, 553

(Tenn. Ct. App. 2001) (“It likewise cannot be argued that Plaintiffs had fair notice of this

defense because it was never pled or raised by Defendants in the Chancery Court.”).

Defendant attempted to revive an affirmative defense that should have been pleaded

years earlier. Once an affirmative defense is waived, it is waived. See Ternes v. Galichia,

234 P.3d 820, 825 (Kan. Ct. App. 2010) (“Once an affirmative defense is waived it is

gone. We find no case law or statute that permits it to be ‘unwaived.’”). The trial court did

not abuse its discretion in denying Defendant the opportunity to use the statute of repose as

a defense in the retrial of this case. Our standard of review of a discretionary decision does

not allow us to substitute our judgment for that of the trial court. Williams, 193 S.W.3d at

551 (Tenn. 2006). This Court recently determined that even a waived non-affirmative

defense may not be raised in a second trial. See In re Estate of Smallman, 398 S.W.3d 134

(Tenn. 2013) (finding that the issue of standing was waived during the first trial and was not

available to a party during the second trial).

IV.

The judgment of the trial court is affirmed. We remand the cause to the trial court for

such further action as is necessary, consistent with this opinion. Costs on appeal are assessed

to Consultants in Anesthesia, Inc. and its surety, for which execution may issue if necessary.

_________________________________

SHARON G. LEE, JUSTICE

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