Day on Torts
Effective July 1, 2014 state law will grant Tennessee lawyers and accountants a five-year statute of repose for malpractice claims. The only exception is for fraudulent concealment by the defendant, in which event the claim must be filed within one year of the date of discovery.
A one year statute of limitations still applies in malpractice cases against lawyers and accountants and the discovery rule is still applicable to those claims. However, the new statute of repose cuts off the right of the claimant five years after the negligent act or omission occurred (absent fraudulent concealment).
Presumably, the test for fraudulent concealment for accountants and lawyers would be the same as it is for physicians and other health care providers. Here is the test for health care providers: a plaintiff must establish that (1) the health care provider took affirmative action to conceal the wrongdoing or remained silent and failed to disclose material facts despite a duty to do so, (2) the plaintiff could not have discovered the wrong despite exercising reasonable care and diligence, (3) the health care provider knew of the facts giving rise to the cause of action and, (4) a concealment, which may consist of the defendant withholding material information, making use of some device to mislead the plaintiff, or simply remaining silent and failing to disclose material facts when there was a duty to speak." Shadrick v. Coker, 963 S.W.2d 726, 736 (Tenn. 1998).
As mentioned, the Act is effective July 1, 2014. Thus, there is no five-year statute of repose for acts and omissions that occur before June 30, 2014 but only for those acts and omissions that occur on or after July 1, 2014.