In 2011, the Tennessee legislature amended Tenn. Code. Ann. § 28-1-106 regarding tolling of statutes of limitations, replacing the language “of unsound mind” and “after the removal of such disability” with “adjudicated incompetent” and “after legal rights are restored.” The current version of the statute reads:
If the person entitled to commence an action is, at the time the cause of action accrued, either under eighteen (18) years of age, or adjudicated incompetent, such person, or such person’s representatives and privies, as the case may be, may commence the action, after legal rights are restored, within the time of limitation for the particular cause of action, unless it exceeds three (3) years, and in that case within three (3) years from restoration of legal rights.
Recently, the Tennessee Court of Appeals analyzed the meaning of this language change, marking the first time a state court has interpreted the new terms.
In Johnson v. UHS of Lakeside, LLC, No. W2015-01022-COA-R3-CV (Tenn. Ct. App. Dec. 23, 2015), plaintiff filed an HCLA claim related to her late husband’s fall at defendant’s facility. It was uncontested that she gave pre-suit notice more than one year after the cause of action accrued, and that she filed the complaint more than one year and 120 days after the same. Defendant moved to dismiss the claim based on the statute of limitations. Plaintiff opposed the motion on the basis that her husband met the criteria of § 28-1-106 and that the statute of limitations was thus tolled. The trial court dismissed the action, and the Court of Appeals affirmed.
Plaintiff’s husband had been involuntarily admitted to defendant’s facility on July 20, 2012, with a licensed clinical social worker executing a “Certificate of Need for Emergency Involuntary Admission” prior to his admission. The next day, a doctor at the facility executed a second “Certificate of Need.” Both of these documents provided that husband was “confused, disoriented, aggressive towards his wife, unable to take care of basic needs, tried to choke wife, poor insight and judgment, history of dementia, dangerous to self and others.” On July 23rd, “the Shelby County General Sessions Court entered an Order Admitting [Husband] for Emergency Diagnosis and Treatment.” The General Sessions Court ordered that a probable cause hearing take place four days later, but that hearing never occurred.
Plaintiff’s husband’s fall occurred on July 21, 2012, when he became agitated when an employee tried to take his blood pressure. After his fall, he was transferred to a hospital and then a rehabilitation center, and he eventually returned home. In October 2012, plaintiff petitioned the Shelby County Probate Court to be appointed conservator over her husband’s person and property, and her petition was granted in November. Plaintiff’s husband died soon thereafter.
Plaintiff argued that the statute of limitations for her husband’s claim was tolled, asserting that the test the Tennessee Supreme Court had previously laid out for whether a person was of “unsound mind” was the “same analysis this Court should apply to the statute’s post-amendment use of ‘adjudicated incompetent.’” The Court, however, rejected this argument. Although the term “adjudicated incompetent” is not defined in the statute, the Court found that other language used in this section clarified its meaning:
Specifically, the statute provides that the plaintiff may commence the action ‘after legal rights are restored[.]…[T]he term adjudicated incompetent must be read in conjunction with the other parts of the statute that clearly contemplate a loss and restoration of ‘legal rights.’ Undoubtedly, it is the courts, rather than physicians, who can adjudicate an individual’s legal rights.
Accordingly, the Court held that “the statutory language clearly contemplates that judicial intervention is necessary in order for an individual to be adjudicated incompetent.” Further, the Court noted that Tennessee law requires that, in order to take advantage of a disability for tolling purposes, the disability must have existed when the cause of action accrued.
In the present matter, before the fall occurred the only “findings” made regarding husband were the Certificates of Need completed by a social worker and a doctor. The first court order in this matter was the admission summary signed by the general sessions judge, and that was not entered until two days after the fall. Even if this document had constituted an adjudication of incompetence, which the Court did not decide, it was not in place at the time the cause of action accrued, and the claim related to the fall was accordingly not tolled.
While this unfortunately left plaintiff without a way to have her claim heard, it was the correct result in this case. The legislature changed the language of the tolling statute—clearly they intended for a different test to be applied to determine when a statute of limitations should be tolled due to incompetence. While the Supreme Court has not yet addressed this revised statute, Tennessee lawyers should heed this holding and plan their filings in accordance with this new, more stringent (an, in my view, unfair) standard.