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Calaway ex rel Calaway v. Schucker12/9/2005
haracterized Tennessee Code Annotated section 29-26-116(a)(3) as a statue of repose. As early as 1978, in Harrison v. Schrader, 569 S.W.2d 822, 824 (Tenn. 1978), our first encounter with this statute, we described it as "an absolute three-year limit upon the time within which malpractice actions, with two [express] exceptions, could be brought" and also as "an outer limit or ceiling superimposed upon the existing statute [of limitations]." In Cronin v. Howe, 906 S.W.2d 910, 913 (Tenn. 1995), we stated that the statute "places an absolute three-year limit upon the time within which malpractice actions can be brought." And earlier this year, in Mills, 155 S.W.3d at 920, we stated that the statute of repose "expresses a legislative intent to place an absolute three-year bar beyond which no medical malpractice right of action may survive."
We recognize that the Legislature may, in some instances, allow plaintiffs to commence a lawsuit despite the absolute nature of applicable statutes of repose. For example, we find a clearly stated exception in the medical malpractice statute of repose for fraudulent concealment. See Tenn. Code Ann. ยง 29-26-116(a)(3). The plaintiff's amicus here argues that the legal disability statute, Tennessee Code Annotated section 28-1-106, was intended by the Legislature to serve as an exception to the medical malpractice statute of repose, citing in support a string of lower court cases. See, e.g., Parlato v. Howe, 470 F.Supp. 996 (E.D. Tenn. 1979); Braden v. Yoder, 592 S.W.2d 896 (Tenn. Ct. App. 1979), Bowers v. Hammon, 954 S.W.2d 752 (Tenn. Ct. App. 1997).
We respectfully disagree with the plaintiff's amicus' argument. As we have stated above, the medical malpractice statute of repose imposes an absolute three-year bar on such actions, with the exception of the exemptions in the statute itself. In Penley, we stated that "when the General Assembly has desired that exceptions apply to a statute of repose, . . . the exception is either found with the language of the statute itself, or in another part of the code specifically referencing the particular statute of repose." Penley, 31 S.W.3d at 184-85. We find neither requirement satisfied in this case for minority. The medical malpractice statute of repose contains no express exception for minors. Neither does any other part of the Code, including the legal disability statute, reference the statute of repose with respect to minors.
Our approach to statutory construction begins with the statute's language, and if it can end there-with our finding of a clear meaning of the Legislature's intent-then we must stop. "Our search for a statute's purpose begins with the words of the statute itself. If the statute is unambiguous, we need only enforce the statute as written[,]" with no recourse to the broader statutory scheme, legislative history, historical background, or other external sources of the Legislature's purpose. In re Conservatorship of Clayton, 914 S.W.2d 84, 90 (Tenn. Ct. App. 1995). The statute of repose itself-by its words " n no event shall any such action be brought more than three years after the date on which the negligent act or omission occurred"-expresses a clear intent by the Legislature to absolutely limit to three years the time within which malpractice actions can be brought. Harrison, 569 S.W.2d at 824; Mills, 155 S.W.3d at 920.
In Penley, we applied the statutory-construction canon expressio unius est exclusio alterius ("to mention one thing is to exclude others") to refrain from finding an implied exception for mental incompetents that would toll the products liability statute of repose, Tennessee Code Annotated section 29-28-103. " e will not rewrite this statute to insert other cate
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