Derrick Johnson v. Jerry R. Floyd, M.D.

IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

May 24, 2012 Session

DERRICK JOHNSON, ET AL. v. JERRY R. FLOYD, M.D., ET AL.

Appeal from the Circuit Court for Shelby County

No. CT-003875-11 James F. Russell, Judge

No. W2012-00207-COA-R3-CV - Filed June 29, 2012

This case concerns the application of the medical malpractice notice requirement to a lawsuit

that was previously nonsuited and then re-filed pursuant to the saving statute. The children

of a woman who died due to alleged medical negligence filed suit against the defendant

medical providers. The children subsequently nonsuited the lawsuit. Within one-year of the

nonsuit, the children sent notice of a potential claim to the medical providers. Within one

year and 120 days from the nonsuit, the children re-filed their claim. The medical providers

moved to dismiss on the ground that the claim was not filed within the one-year period

provided by the saving statute and, as such, was barred by the applicable statute of

limitations. The trial court dismissed the action and the children appealed. Concluding that

the saving statute, Tennessee Code Annotated Section 28-1-105(a) is not an “applicable

statute[] of limitations or repose,” we hold that the saving statute is not extended by

compliance with the medical malpractice notice requirement, Tennessee Code Annotated

Section 29-26-121(c). Affirmed and remanded.

Tenn. R. App. P. 3. Appeal as of Right; Judgment of the Circuit Court Affirmed and

Remanded

J. S TEVEN S TAFFORD, J., delivered the opinion of the Court, in which A LAN E. H IGHERS, P.J.,

W.S., and D AVID R. F ARMER, J., joined.

Al H. Thomas and Aaron L. Thomas, Memphis, Tennessee, for the appellants, Derrick

Johnson, Marcus Johnson, Ozell Johnson, Odell Johnson, Terrence Johnson, children of

Deborah Johnson, deceased.

J. Kimbrough Johnson and Elizabeth T. Collins, for the appellees, Jerry R. Floyd, M.D., and

Mid-South Wellness Center, Inc.

Katherine M. Anderson, Memphis, Tennessee, for the appellee, Tewfik Rizk, M.D.

OPINION

I. Background

On December 7, 2004, Plaintiffs/Appellants, Derrick Johnson, Marcus Johnson, Odell

Johnson, Ozell Johnson, and Terrence Johnson (collectively, “Appellants”) filed a complaint

on behalf of their Mother, Deborah Johnson, alleging that she died as a result of the medical

negligence of Defendants/Appellees Jerry R. Floyd, M.D., Tewfik Rizk, M.D., and Mid-

South Wellness Center, Inc. (“Mid-South Wellness,” and together with Dr. Floyd and Dr.

Rizk, “Appellees”). The complaint alleged that the Appellees negligently treated the

Appellants’ mother for her rheumatoid arthritis, resulting in her death.

On April 27, 2010, the Appellants entered an order of voluntary dismissal. On April

11, 2011, attempting to re-file their lawsuit, the Appellants provided the Appellees written

notice of their potential claim1 as required by Tennessee Code Annotated Section

29-26-121.2 On August 24, 2011 (which is within one year and 120 days from the order of

voluntary dismissal concluding the first case), the Appellants re-filed their complaint.

1

On appeal, both parties agree that Appellants were required to provide notice to the Appellees of

their potential claim on re-filing their complaint after a nonsuit. See Meyers v. AMISUB (SFH), Inc., No.

W2010-00837-COA-R9CV, 2011 WL 664753 (Tenn. Ct. App. Feb. 24, 2011) (perm. app. granted Aug. 23,

2011) (oral arg. heard April 4, 2012) (holding that a party must comply with the notice requirements of the

Medical Malpractice Act when a medical malpractice action is re-filed pursuant to the saving statute).

2

Tennessee Code Annotated Section 29-26-121 provides, in pertinent part:

(a)(1) Any person, or that person's authorized agent, asserting a potential

claim for medical malpractice shall give written notice of the potential

claim to each health care provider that will be a named defendant at least

sixty (60) days before the filing of a complaint based upon medical

malpractice in any court of this state.

(2) The notice shall include:

(A) The full name and date of birth of the patient whose treatment is at

issue;

(B) The name and address of the claimant authorizing the notice and the

relationship to the patient, if the notice is not sent by the patient;

(C) The name and address of the attorney sending the notice, if applicable;

(D) A list of the name and address of all providers being sent a notice; and

(E) A HIPAA compliant medical authorization permitting the provider

receiving the notice to obtain complete medical records from each other

provider being sent a notice.

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The second complaint specifically alleges that Ms. Johnson suffered from rheumatoid

arthritis, for which she sought medical treatment from Dr. Floyd. During these visits, Dr.

Floyd prescribed various medications including Methotraxate beginning in September 2000.

However, Dr. Floyd ceased prescribing Methotraxate to Ms. Johnson on March 26, 2002.

In 2002, Dr. Floyd referred Ms. Johnson to Dr. Rizk for specialist treatment of her

rheumatoid arthritis. Dr. Rizk again prescribed Methotraxate to Ms. Johnson, first at 2.5

milligrams per week; however, Dr. Rizk gradually increased the dosage until June 2003,

when Ms. Johnson was taking 15 milligrams per week. Throughout this time, Ms. Johnson

suffered serious pulmonary difficulties. In February 2004, Ms. Johnson was diagnosed with

interstitial lung disease. Her physicians determined that Methotraxate toxicity was the cause

of the disease. Ms. Johnson died as a result of the lung disease on May 4, 2004. The

complaint avers that Ms. Johnson’s death was legally and proximately caused by

Methotraxate toxicity, as a result of the negligence of the Appellees.

Appellees filed separate motions to dismiss, both arguing that the Appellants’ claim

was barred by the one-year statute of limitations concerning medical malpractice actions

because the complaint was not filed within the one-year time period allowed by the saving

statute. Accordingly, the Appellees argued that the new complaint could not relate back to

the original complaint, and as such was filed after the expiration of the one-year medical

malpractice statute of limitations. Appellants argued that the saving statute was extended by

written notice of a potential claims as required under Tennessee Code Annotated Section 29-

26-121.

The trial court held a hearing on the motions to dismiss on October 28, 2011. At the

hearing, the trial court orally ruled that the extension granted by complying with the notice

requirement of Tennessee Code Annotated Section 29-26-121(c) did not extend the one-year

saving statute. An order memorializing the oral ruling and dismissing the case was entered

on December 20, 2011 (the order was marked as entered on November 4, 2011, but was

subsequently corrected in the trial court). The Appellants timely appealed.

II. Standard of Review

In considering an appeal from a trial court's grant of a motion to dismiss, we take all

allegations of fact in the complaint as true, and review the lower courts' legal conclusions de

novo with no presumption of correctness. Tenn R. App. P. 13(d); Mid-South Industries, Inc.

v. Martin Mach. & Tool, Inc., 342 S.W.3d 19, (Tenn. Ct. App. 2010) (citing Owens v.

Truckstops of America, 915 S.W.2d 420, 424 (Tenn. 1996)).

III. Analysis

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Appellees raise a number of issues on appeal; however, we conclude that the

dispositive question on appeal concerns whether the Saving Statute, Tennessee Code

Annotated Section 28-1-105, is extended by 120 days when the plaintiff sends written notice

of a potential claim in compliance with Tennessee Code Annotated Section 29-26-121.

The Tennessee Saving Statute provides, in pertinent part:

If the action is commenced within the time limited by a rule or

statute of limitation, but the judgment or decree is rendered

against the plaintiff upon any ground not concluding the

plaintiff's right of action, or where the judgment or decree is

rendered in favor of the plaintiff, and is arrested, or reversed on

appeal, the plaintiff, or the plaintiff's representatives and

privies, as the case may be, may, from time to time, commence

a new action within one (1) year after the reversal or arrest.

Tenn. Code Ann. § 28-1-105(a). Accordingly, a complaint properly filed within the

applicable statute of limitations may be voluntarily dismissed and re-filed within one year.

The new action will relate back to the previous filing for purposes of the statute of

limitations. See generally Cronin v. Howe, 906 S.W.2d 910, 912–13 (Tenn. 1995)

(discussing the application of the saving statute).

The statute of limitations in a medical malpractice case is one year from the date of

the discovery of the injury. Tenn. Code Ann. § 29-26-116. However, in 2008, the Tennessee

Legislature passed the Medical Malpractice Act, requiring that the plaintiff in a medical

malpractice action send written notice to the defendants of a potential claim, at least sixty

(60) days prior to filing their complaint. See 2008 Pub. Acts, c.919, § 1. Tennessee Code

Annotated Section 29-26-121 (a)(1) provides, in pertinent part:

Any person, or that person's authorized agent, asserting a

potential claim for medical malpractice shall give written notice

of the potential claim to each health care provider that will be

a named defendant at least sixty (60) days before the filing of a

complaint based upon medical malpractice in any court of this

state.

The legislature at that time also enacted a measure that extended the applicable statute of

limitations by ninety (90) days when the plaintiff complied with the notice requirement. See

2008 Pub. Acts, c.919, § 1. This period was later extended to 120 days. See 2009 Pub. Acts,

c. 425, § 1, eff. July 1, 2009. The current version of the statute provides:

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When notice is given to a provider as provided in this section,

the applicable statutes of limitations and repose shall be

extended for a period of one hundred twenty (120) days from

the date of expiration of the statute of limitations and statute of

repose applicable to that provider. Personal service is effective

on the date of that service. Service by mail is effective on the

first day that service by mail is made in compliance with

subdivision (a)(2)(B). In no event shall this section operate to

shorten or otherwise extend the statutes of limitations or repose

applicable to any action asserting a claim for medical

malpractice, nor shall more than one (1) extension be applicable

to any provider. Once a complaint is filed alleging a claim for

medical malpractice, the notice provisions of this section shall

not apply to any person or entity that is made a party to the

action thereafter by amendment to the pleadings as a result of a

defendant's alleging comparative fault.

Tenn. Code Ann. §29-26-121(c). Accordingly, when a plaintiff sends the proper written

notice within one year of the discovery of the injury, the applicable statute of limitations or

repose is extended for a period of 120 days. The determinative issue in this case, then, is

whether the saving statute is an “applicable statute[] of limitations or repose.”

In determining the proper interpretation to be given to a statute, we must employ the

rules of statutory construction. The Tennessee Supreme Court recently reiterated the

“familiar rules,” stating:

Our role is to determine legislative intent and to effectuate

legislative purpose. [Lee Med., Inc. v. Beecher, 312 S.W.3d

515, 526 (Tenn. 2010)]; In re Estate of Tanner, 295 S.W.3d

610, 613 (Tenn. 2009). The text of the statute is of primary

importance, and the words must be given their natural and

ordinary meaning in the context in which they appear and in

light of the statute's general purpose. See Lee Med., Inc., 312

S.W.3d at 526; Hayes v. Gibson Cnty., 288 S.W.3d 334, 337

(Tenn. 2009); Waldschmidt v. Reassure Am. Life Ins. Co., 271

S.W.3d 173, 176 (Tenn. 2008). When the language of the

statute is clear and unambiguous, courts look no farther to

ascertain its meaning. See Lee Med., Inc., 312 S.W.3d at 527;

Green v. Green, 293 S.W.3d 493, 507 (Tenn. 2009). When

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necessary to resolve a statutory ambiguity or conflict, courts

may consider matters beyond the statutory text, including public

policy, historical facts relevant to the enactment of the statute,

the background and purpose of the statute, and the entire

statutory scheme. Lee Med., Inc., 312 S.W.3d at 527–28.

However, these non-codified external sources “cannot provide

a basis for departing from clear codified statutory provisions.”

Id. at 528.

Mills v. Fulmarque, 360 S.W.3d 362, 368 (Tenn. 2012).

Accordingly, we first consider the language of the statute. The phrase “statute[] of

limitations” is not defined by the Medical Malpractice Act.3 In addition, we can find no

Tennessee case expressly defining the phrase for purposes of the Medical Malpractice Act

notice requirement. Both parties point to the dictionary definition of the phrase “statute[] of

limitations.” Where appropriate, courts may utilize dictionary definitions in interpreting

statutes. State v. Majors, 318 S.W.3d 850, 859 (Tenn. 2010) (quoting State v. Williams, 690

S.W.2d 517, 529 (Tenn. 1985)). Black’s Law Dictionary defines a statute of limitations as

“[a] statute prescribing limitations to the right of action on certain described causes of action

or criminal prosecutions; that is, declaring that no suit shall be maintained on such causes of

action, nor any criminal charges be made, unless brought within a specified period of time

after the right accrued” Black’s Law Dictionary 835 (5th ed. 1979). Consequently, the

Appellees argue that only limitations on claims related to the accrual of the action when the

injury occurred or was discovered may properly be referred to as statutes of limitations. See

Black’s Law Dictionary 19 (5th ed. 1979) (stating that a cause of action “‘accrues’ when a

suit may be maintained thereon” or “on the date that damage is sustained.”). Additionally,

American Jurisprudence provides this definition:

The term "statute of limitations" is the collective term

commonly applied to acts or part of acts that prescribe the

periods beyond which a plaintiff may not bring a cause of

action. A statute of limitations establishes the time period, after

a cause of action arises, within which a claim or suit must be

filed, to enforce that cause of action. A statute of limitations is

a declaration that no suit may be maintained on a cause of

action unless the suit is brought within a specified period of

3

The Appellants do not argue that the saving statute may be considered a statute of repose.

Accordingly, we will consider only whether the saving statute qualifies as a statute of limitations for

purposes of the notice requirement of the Medical Malpractice Act.

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time after the right has accrued, or in other words, a law that

bars claims after a specified period.

51 Am. Jur. 2d Limitation of Actions § 2 (footnotes omitted). However, from our research,

other definitions of the phrase do not require that the limitations period be connected to the

accrual of the action. For example, Bryan Garner’s A Dictionary of Modern Legal Usage

defines a statute of limitations simply as “a statute establishing a time limit for suing or for

prosecuting a crime.” Bryan A. Garner, A Dictionary of Modern Legal Usage 831 (2d ed.

1995). The result is that the dictionary definition of the phrase, alone, cannot decide this

issue.

Appellees next cite to cases from other jurisdictions in which courts have concluded

that a saving statute is not a statute of limitations. Cases specifically concerning medical

malpractice notice requirements involve fairly new legislation; as such, few courts have

considered this issue. The Appellees cite only one jurisdiction in which this particular issue

has been considered and the courts have ruled in favor of the Appellees’ position. In Waltz

v. Wyse, 677 N.W.2d 813 (Mich 2004), the Michigan Supreme Court held that the wrongful

death saving statute was not extended by compliance with the medical malpractice notice

requirement. Id. at 818. Pursuant to Michigan law, “the statute of limitations or repose” is

extended “if the plaintiff provides a valid notice of intent before the limitation period

expires.” Id. at 815 (citing Mich. Comp. Laws § 600.5856). Similar to the Appellants in this

case, in Waltz, the plaintiff argued that her complaint was timely filed under Michigan’s

wrongful death saving statute because the saving statute was extended by complying with the

medical malpractice notice requirement. The defendants argued, however, that the wrongful

death saving statute was not a “statute of limitations or repose” that could be extended by

complying with the medical malpractice notice requirement. Id.

The Michigan Supreme Court agreed:

Section 5856(d), by its express terms, tolls only the applicable

“statute of limitations or repose.” As we recently stated in

Miller, [] 644 N.W.2d 730 [(Mich 2003)], the wrongful death

provision, § 5852, “is a saving statute, not a statute of

limitations.” (Emphasis supplied.) See also Lindsey v. Harper

Hosp., [564 N.W.2d 861 (Mich. 1997),] in which we explained

that § 5852, as “the statute of limitations saving provision ” and

an “exception to the statute of limitations,” operated “to

suspend the running of the statute until a personal representative

is appointed to represent the interests of the estate.”

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The plain language of [Mich. Comp. Laws] § [600.]5852

wholly supports our conclusion that it is not itself a “statute of

limitations.” Again, § 5852 provides:

If a person dies before the period of limitations

has run or within 30 days after the period of

limitations has run, an action which survives by

law may be commenced by the personal

representative of the deceased person at any time

within 2 years after letters of authority are issued

although the period of limitations has run. But an

action shall not be brought under this provision

unless the personal representative commences it

within 3 years after the period of limitations has

run. [Emphasis supplied.]

By its own terms, § 5852 is operational only within the context

of the separate “period of limitations” that would otherwise bar

an action. Section 5852 clearly provides that it is an exception

to the limitation period, allowing the commencement of a

wrongful death action as many as three years after the

applicable statute of limitations has expired.

Waltz, 677 N.W.2d at 817–18. Accordingly, the Michigan Supreme Court held that

compliance with the medical malpractice notice requirement did not extend the saving statute

because a saving statute is not an “applicable statute of limitations or repose.” Turning to our

own statutory scheme, just as in Michigan, our notice requirement expressly extends only

"the applicable statute of limitations or repose," rather than the saving statute. Tenn. Code

Ann. § 29-26-121(c). Additionally, our Saving Statute likewise requires the operation of

a separate statute of limitations, requiring that the original complaint be "commenced within

the time limited by a rule or statute of limitation." Tenn. Code Ann. § 28-1-105(a); see also

Pugh v. St. Paul Fire & Marine Ins. Co., 877 S.W.2d 577 (Ark. 1994), superseded by

statute Acts of 1995, Act 1296, § 63 (1995) (holding that the now-repealed notice

requirement did not extend the time period under the saving statute because the saving statute

was not expressly mentioned in the notice requirement statute); Boggs v. Baum, No.

10AP–864, 2011 WL 2112482 (Ohio Ct. App. May 24, 2011) (perm. app. denied Oct. 19,

2011) (holding that a saving statute is not a statute of limitations). Appellants cite no

jurisdictions, nor has our research revealed any jurisdictions, in which courts have concluded

that a saving statute is an applicable statute of limitations for purposes of a medical

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malpractice notice requirement.4

According to the Appellants, however, it would be illogical to apply certain provisions

of the Medical Malpractice Act requiring a plaintiff to send notice of potential claim upon

refiling a complaint after nonsuit, without applying the corresponding extension of the statute

of limitations. Appellants argue that the case law in Tennessee provides support for their

argument that the saving statute is extended by compliance with the notice requirement. For

support, Appellants cite Meyers v. AMISUB (SFH), Inc., No. W2010-00837-COA-R9CV,

2011 WL 664753 (Tenn. Ct. App. Feb. 24, 2011) (perm. app. granted Aug. 23, 2011) (oral

arg. heard April 4, 2012) for the proposition that all provisions of the Medical Malpractice

Act must apply to a case re-filed after a nonsuit, because the case is a “new action.” The

Appellants cite language from Meyers, indicating that “When [plaintiff] re-filed his action

in September 2009, he ‘commence[d] a new action’ that was governed by the statutory

provisions, which became effective as amended on July 1, 2009.” We disagree. The Meyers

court considered only the issue of whether a plaintiff is required to provide notice to the

defendants of a potential claim when an action is recommenced after a nonsuit. In Meyers,

the plaintiff had not sent proper notice of his potential claim; thus, the Court in Myers,

unlike in this case, was not called upon to consider whether complying with the medical

malpractice notice requirement extended the saving statute.

Appellants also cite two cases in which they claim that Tennessee courts have

referred to the saving statute as a statute of limitations. First, in Evans v. Perkey, 647 S.W.2d

646, 641(Tenn. Ct. App. 1982), this Court referred to the saving statute as a “statute of

limitations” in holding that the time period for recommencing an action under the saving

statute runs from the date of the entry of the order nonsuiting the case, rather than from the

filing of the notice of nonsuit. Id. at 641. This conclusory statement, however, does not

amount to a holding that the saving statute is a statute of limitations for purposes of the

Medical Malpractice Act, a law which would not be enacted for nearly thirty years after this

decision. Appellants also cite Moran v. Weinberger, 260 S.W. 966, 969 (Tenn. 1924),

abrogated on other grounds by Ware v. Meharry Medical College, 898 S.W.2d 181 (Tenn.

1995), as support that the saving statute is a statute of limitations. However, from our reading

of Moran, the Tennessee Supreme Court stated that the saving statute “suspend[s]” or

“stay[s]” the statute of limitations, rather than that the saving statute is a statute of limitations

in itself. Id. at 969.

4

Though not cited by the Appellants in this case, we recognize the recent decision on this issue in

Tennessee, Rajvongs v. Wright, No. M2011-01889-COA-R9-CV, 2012 Tenn. App. LEXIS 393 (Tenn. Ct.

App. June 18, 2012), holding that the saving statute is extended by the medical malpractice notice

requirement. A detailed discussion of the Wright opinion is set forth infra.

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Indeed our Supreme Court recently noted language similar to that in Moran regarding

the ninety-day window in which to file an amended complaint against a tortfeasor named by

a defendant to conclude that the ninety-day window was not “an applicable statute of

limitations.” See Mills v. Fulmarque, 360 S.W.3d 262 (Tenn. 2012). In Mills v. Fulmarque,

360 S.W.3d 262 (Tenn. 2012), the plaintiff timely filed a federal lawsuit against a packaging

company after he fell from a chair while doing business at the packaging company. The

packaging company filed an answer alleging the comparative fault of the company that sold

the chair. The plaintiff filed an amended complaint, naming the seller as a party, within

ninety days of the packaging company’s answer. The seller filed an answer to the amended

complaint, alleging that the plaintiff’s injuries were caused by Fulmarque, Inc.

(“Fulmarque”), the manufacturer of the chair. Within ninety days of the seller’s answer, the

plaintiff filed a second amended complaint, naming Fulmarque as a party. The addition of

Fulmarque destroyed diversity jurisdiction, and the case was dismissed.

Pursuant to the saving statute, the plaintiff timely re-filed the complaint in state court.

Fulmarque moved for summary judgment on the ground that the plaintiff’s claim against it

was barred by the statute of limitations. Eventually, the trial court granted the motion for

summary judgment, holding that the plaintiff’s claim was barred by the statute of limitations,

relying on Tennessee Code Annotated Section 20-1-119, which states, in pertinent part:

(a) In civil actions where comparative fault is or becomes an

issue, if a defendant named in an original complaint initiating a

suit filed within the applicable statute of limitations, or named

in an amended complaint filed within the applicable statute of

limitations, alleges in an answer or amended answer to the

original or amended complaint that a person not a party to the

suit caused or contributed to the injury or damage for which the

plaintiff seeks recovery, and if the plaintiff's cause or causes of

action against that person would be barred by any applicable

statute of limitations but for the operation of this section, the

plaintiff may, within ninety (90) days of the filing of the first

answer or first amended answer alleging that person's fault,

either:

(1) Amend the complaint to add the person as a defendant

pursuant to Tenn. R. Civ. P. 15 and cause process to be issued

for that person; or

(2) Institute a separate action against that person by filing a

summons and complaint. If the plaintiff elects to proceed under

this section by filing a separate action, the complaint so filed

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shall not be considered an original complaint initiating the suit

or an amended complaint for purposes of this subsection (a).

(b) A cause of action brought within ninety (90) days pursuant

to subsection (a) shall not be barred by any statute of limitations.

The trial court found that the seller was not “a defendant named in an original

complaint initiating a suit within the applicable statute of limitations or named in an

amended complaint filed within the applicable statute of limitations.” Mills, 360 S.W.3d at

365 (citing Tenn. Code Ann. § 20-1-119 ). Accordingly, the trial court concluded that the

ninety-day window provided by Tennessee Code Annotated Section 20-1-119 was not

triggered by the seller’s answer alleging comparative fault. Without the ninety-day window

on which to rely, the plaintiff’s claim against Fulmarque was asserted after the expiration

of the statute of limitations. Mills, 360 S.W.3d at 365.

The plaintiff appealed and the Court of Appeals reversed, holding that the ninety-day

window provided by Tennessee Code Annotated Section 20-1-119 was an “applicable statute

of limitations.” Accordingly, the Court of Appeals concluded that by naming the seller

within the ninety-day window provided by Tennessee Code Annotated Section 20-1-119 , the

seller was “a defendant named in an original complaint initiating a suit within the applicable

statute of limitations or named in an amended complaint filed within the applicable statute

of limitations.” Id. at 365–66.

The Tennessee Supreme Court reversed the Court of Appeals and affirmed the trial

court’s grant of summary judgment, holding that the plaintiff’s claim against Fulmarque was

barred by the applicable statute of limitations. The Supreme Court relied on the plain

language of the statute to support this holding:

In our view, the phrase “applicable statute of limitations” refers

exclusively to the statute of limitations for a plaintiff's cause of

action. Thus, the ninety-day period provided in section 20-1-

119 is available to a plaintiff only when a defendant sued within

the statute of limitations applicable to the plaintiff's underlying

cause of action “alleges in an answer or amended answer to the

original or amended complaint that a person not a party to the

suit caused or contributed to the injury or damage for which the

plaintiff seeks recovery. . . .” Tenn. Code Ann. § 20-1-119(a).

Indeed, construing the phrase to include the ninety-day

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period would be clearly inconsistent with its usage in the second

clause of subsection (a)—“if a defendant named in an original

complaint initiating a suit filed within the applicable statute of

limitations . . . .” Tenn. Code Ann. § 20-1-119(a). Since the

ninety-day period never becomes relevant until a responsive

pleading alleging fault against a nonparty is filed, the

“applicable statute of limitations” relevant to “an original

complaint initiating a suit” will never include the ninety-day

period. In the absence of statutory language indicating that the

definition of the phrase differs from one sentence, or

subsection, to the next, we decline to assign inconsistent

definitions to the same phrase.

We further note that, by its own terms, subsection (a)

plainly distinguishes the ninety-day period from the phrase

“applicable statute of limitations.” See Tenn. Code Ann. § 20-1-

119(a) (“[I]f the plaintiff's cause or causes of action against that

person would be barred by any applicable statute of limitations

but for the operation of this section, the plaintiff may, within

ninety (90) days of the filing of the first answer or first amended

answer alleging the person's fault . . . .”).

Mills, 360 S.W.3d at 368–69 (footnotes omitted). Thus, the Supreme Court concluded that

the plain language of Tennessee Code Annotated Section 20-1-119 created a distinction

between the ninety-day window and the applicable statute of limitation.

Instead of characterizing the ninety-day window as a statute of limitations, the

Supreme Court characterized the ninety-day window as more akin to a saving statute:

[C]ourts have consistently characterized “applicable statute of

limitations” to mean the statute of limitations applicable to a

plaintiff's claim. In contrast, courts have characterized the

ninety-day period, not as a statute of limitations, but as a

“window,” as a “saving[ ] statute,” as a “tolling [ ] statute,” as

an “extension,” as a “suspension,” and as a “grace period.”

Mills, 360 S.W.3d at 369–70 (footnotes omitted). Based on this logic, if the ninety-day

window is not an “applicable statute of limitations” because it is more aptly described as a

saving statute, then a saving statute is likewise not be considered an “applicable statute of

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limitations.” Indeed, much like the ninety-day window, the saving statute has been

consistently referred to not as a separate statute of limitations, but merely as an extension or

suspension of the applicable statute of limitations. See Lanius v. Nashville Elec. Service,

181 S.W.3d 661, 664 (Tenn. 2005) (referring to the saving statute as “extend[ing] the

limitations period of a lawsuit”); Moran v. Weinberger, 260 S.W. 966, 969 (Tenn. 1924),

abrogated on other grounds by Ware v. Meharry Medical College, 898 S.W.2d 181 (Tenn.

1995); Doe v. Goodwin, 254 S.W.3d 428, 430 (Tenn. Ct. App. 2007) (stating that “a saving

statute [] would toll the one-year limitation period”); Woods v. Jones, 204 S.W.3d 788, 793

(Tenn. Ct. App. 2006) (noting that “a saving statute [] effectively extends the [] statute of

limitations”); Counts v. Bryan, 182 S.W.3d 288, 290 (Tenn. Ct. App. 2005) (stating that

“the statute of limitations was tolled by the Tennessee Saving Statute”); Boone v. Morris,

No. M2002-03065-COA-R3-CV2004 WL 2254012, at *12 (Tenn. Ct. App. Oct. 6, 2004)

(referring to the saving statute as an “extension of the statute of limitations”); Brown v.

State, No. M2002-01361-COA-R3-CV, 2003 WL 2010734, at *2 (Tenn. Ct. App. May 2,

2003) (“referring to the saving statute as “toll[ing] the statute of limitations”); Faulks v.

Crowder, 99 S.W.3d 116, 127 (Tenn. Ct. App. 2002) (referring to the saving statute as a

“one-year tolling period” of the applicable statute of limitations); Mixon v. Wyrick, No.

1107, 1987 WL 17974, at *2 (Tenn. Ct. App. Oct. 8, 1987) (referring to the saving statute

as a “grace period”).

In addition, the Mills court specifically states that “the phrase ‘applicable statute of

limitations’ refers exclusively to the statute of limitations for a plaintiff's cause of action.”

Mills, 360 S.W.3d at 369. Black’s Law Dictionary defines a “cause of action” as “[a]

situation or state of facts which would entitle party to sustain action and give him right to

seek judicial remedy on his behalf” or “[f]acts which give rise to one or more relations of

right-duty between two or more persons.” Black’s Law Dictionary 201 (5th ed. 1979). The

Appellant’s cause of action is for medical malpractice. See Sherrill v. Souder, 325 S.W.3d

584, 595–6 (Tenn. 2010) (stating that in case alleging negligence of physician, the plaintiff’s

cause of action was for medical malpractice, and applying the medical malpractice statute

of limitations). Accordingly, the only “statute of limitations” applicable to the Appellants

cause of action that may be extended by compliance with the notice requirement is

Tennessee Code Annotated Section 29-26-116(a), which provides a plaintiff with one year

from the date of injury or discovery of injury to file a complaint for medical malpractice.

Indeed, other law in Tennessee supports this conclusion. In Sharp v. Richardson, 937

S.W.2d 846 (Tenn. 1996), the Tennessee Supreme Court considered the issue of whether the

six-year product liability statute of repose precluded application of the saving statute. Id. at

849. The Supreme Court concluded that it did not, noting that the product liability statute

of repose was enacted subsequent to the “long history of the saving statute.” Id. at 850. The

defendants argued that the later enactment of the product liability statute of repose acted as

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an exception to the saving statute, limiting its application. The defendants argued that “the

Legislature is presumed to have knowledge of its prior enactments and to know the state of

the law at the time it passes legislation.” Id. (citing Wilson v. Johnson County, 879 S.W.2d

807, 809 (Tenn. 1994)). The Supreme Court noted, however, that “repeals or alterations of

existing statutes by implication is disfavored.” Sharp, 937 S.W.2d at 850 (citing Jenkins

v. Loudon County, 736 S.W.2d 603 (Tenn. 1987)). Accordingly, the Supreme Court ruled

that the subsequent enactment of the product liability statute of repose did not alter the

express provisions of the saving statute. Here the opposite is true: Appellants argue that the

subsequent enactment of the Medical Malpractice Act alters the operation of the saving

statute by extending the time period in which a complaint for medical malpractice may be

filed. Although not cited by Appellants in their brief, we recognize that the saving statute

is to be “liberally construed.” Cronin v. Howe, 906 S.W.2d 910, 913 (Tenn.1995). However,

“[i]n the absence of specific language [in the Medical Malpractice Act] stating its intention

to” extend the saving statute by 120 days, we will not presume that the medical malpractice

notice requirement operates to extend the saving statute. Sharp, 937 S.W.2d at 850.

We are cognizant of the fact that this holding is directly opposite to the determination

of the Middle Section of this Court in the recent decision of Rajvongs v. Wright, No.

M2011-01889-COA-R9-CV, 2012 Tenn. App. LEXIS 393 (Tenn. Ct. App. June 18, 2012).

In Wright, Senior Judge Ben H. Cantrell held that the 120-day extension on “statutes of

limitations” provided by Tennessee Code Annotated Section 29-26-121(c) operated to

extend the saving statute, Tennessee Code Annotated Section 28-1-105(a). Id. at *23–24.

Respectfully, we must disagree. Judge Cantrell’s opinion relies on the holding of

Cunningham v. Williamson County Hospital, No. M2011-00554-COA-R3-CV, 2011 WL

6000379 (Tenn. Ct. App. Nov. 30, 2011) (perm. appeal granted April 11, 2012). In

Cunningham, the Middle Section held that the statute of limitations for a cause of action

under the Governmental Tort Liability Act, Tennessee Code Annotated Section 29-20-

305(b) was extended by compliance with the medical malpractice notice requirement. Id. at

*6. However, unlike the saving statute at issue in this case, courts, including the Tennessee

Supreme Court, have consistently described the one-year limitation on actions filed pursuant

to the Governmental Tort Liability Act as a “statute of limitations.” See e.g., Sanders v.

Traver, 109 S.W.3d 282, 284 (Tenn. 2003) (framing the issue as when the one-year “statute

of limitations” under the Governmental Tort Liability Act began to run); Whitmore v.

Shelby Cnty. Gov’t, No. W2010-01890-COA-R3CV, 2011 WL 3558285 (Tenn. Ct. App.

Aug. 15, 2011); Shaw v. Cleveland Utils. Water Div., No. E2009-00627-COA-R3-CV,

2009 WL 4250157 (Tenn. Ct. App. Nov. 30, 2009); Willis v. Shelby Cnty., Nos.

W200801487COAR3CV, W200801558COAR3CV, 2009 WL 1579248 (Tenn. Ct. App.

June 8, 2009); Estate of Butler v. Lamplighter Apartments, 278 S.W.3d 321 (Tenn. Ct.

App. 2008); Estate of Butler v. Lamplighter Apartments, 278 S.W.3d 321 (Tenn. Ct. App.

2008); Doe v. Goodwin, 254 S.W.3d 428 (Tenn. Ct. App. 2007); Woods v. Jones, 204

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S.W.3d 788 (Tenn. Ct. App. 2006). In addition, the Wright opinion fails to consider this

issue in light of the Tennessee Supreme Court’s holding in Mills v. Fulmarque, 360 S.W.3d

262 (Tenn. 2012), which expressly holds that the phrase “statute of limitations” applies

“exclusively to the statute of limitations for a plaintiff's cause of action.” Id. at 369.

While we agree with both Judge Cantrell and the Appellants in this case that this

holding will “impose additional burdens on plaintiffs,” Wright, 2012 Tenn. App. LEXIS

393, at *24, we are constrained by the express language of the medical malpractice notice

requirement, as well as the holding in Mills, to conclude that the saving statute is not a

statute of limitations for purposes of the medical malpractice notice requirement. As such,

we respectfully decline to follow the holding in Wright. See Ezell v. Cockrell, No.

01A01-9304-CV-00192, 1994 WL 8295, at *8 (Tenn. App. Jan. 12, 1994) (noting that while

appellate courts are bound to follow the decisions of the Supreme Court as binding

precedent, appellate courts may decline to follow decisions by other sections of the Court

of Appeals, or when the decisions are not “settled precedents”); see also In re Estate of

McFarland, 167 S.W.3d 299 (Tenn. 2005) (noting that “whenever a judicial decision, . . .

‘has been submitted to and for some time, acted under, and is not manifestly repugnant to

some rule of law of vital importance in the system, it should not lightly be departed from’”)

(emphasis added).

Based on the reasoning in Mills and Sharp, we hold that the saving statute, Tennessee

Code Annotated Section 28-1-105(a), is not an “applicable statute[] of limitations” for

purposes of the medical malpractice notice requirement. Accordingly, compliance with the

medical malpractice notice requirement does not operate to extend the saving statute beyond

one year from the date of a nonsuit. Because Appellants did not re-file their complaint within

one-year of their nonsuit, their claim is barred by the express terms of the saving statute and

the applicable statute of limitations. Therefore, we affirm the judgment of the trial court and

remand for dismissal of this cause. Costs of this appeal are taxed to Appellants, Derrick

Johnson, Marcus Johnson, Odell Johnson, Ozell Johnson, and Terrence Johnson, and their

surety.

_________________________________

J. STEVEN STAFFORD, JUDGE

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