noting that tolling provisions of subsection .140 are "consistent with the operation of the statute of repose"
How later courts described this case
- noting that tolling provisions of subsection .140 are "consistent with the operation of the statute of repose"
- explaining that a statute of limitation does not eliminate a remedy for a civil wrong but rather provides that a claim cannot be brought after a certain amount of time has passed
- holding that statute of repose acts as "an outer limit or ceiling" within which all suits must be brought
- reasoning that no fundamental rights are at stake in medical malpractice litigation
Written by the judges who cited it.
The opinion
OPINION ON PETITION TO REHEAR
HENRY, Chief Justice.
Appellants have filed a petition requesting that the Court rehear this appeal and recede from our former action upon the ground
that the Court has not heretofore rendered an opinion upon the issue of whether or not the Tennessee Medical Malpractice Review Board and Claims Act, T.C.A. 23-3401, et seq., and particularly T.C.A. 23-3415, providing a three year limitation on medical malpractice actions, may be applied retroactively to foreclose appellants’ cause of action before it ever accrued.
It is true that our original opinion did not address this issue and did not render an opinion thereon. The matter of retroactive application was not raised in the trial court nor was it raised here.
It was the major thrust of appellants’ position in this Court that § 23-3415, T.C.A. was unconstitutional in that it arbitrarily and without a reasonable basis violates the equal protection guarantees of both the state and federal constitutions and deprives litigants of the right to redress an injury in violation of our state constitution. We responded to the issues thus presented for our consideration. Counsel may not be heard, at this late date, to revive this action by the injection of a new and different issue.
Rule 32 of this Court provides, in pertinent part:
A rehearing will be refused where no new argument is made, and no new authority adduced, and no material fact is pointed out as overlooked.
The petition does not purport to make any new argument nor does it cite any new authority relating to the issues raised in this Court under the assignments. Nor does it point out any material fact overlooked. Rather it merely raises a new and different issue. In civil cases, this Court will not, as a general rule, pass upon any question raised for the first time on appeal. Shelton v. Martin, 180 Tenn. 454 , 176 S.W.2d 247 (1943); nor will we consider on rehearing that which was not at issue in the original hearing. Nashville v. Wilson, 88 Tenn. 407 , 12 S.W. 1082 (1848).
Under the rules governing the practice and procedure of this Court, and our consistent decisional law, we have no choice but to deny the petition. We caution, however, that this case does not provide an answer to the question of the retroactive application of the statute. The resolution of this issue must await a controversy wherein it is properly raised.
FONES, COOPER and HARBISON, JJ., and QUICK, Special Justice, concur.