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Calaway ex rel Calaway v. Schucker12/9/2005
gories not intended by the General Assembly. If the General Assembly intended for mental incapacity to toll the ten- year statute of repose, it could easily have done so. . . ." Penley, 31 S.W.3d at 185-86. The same analysis applies to the present case: we will not rewrite the medical malpractice statute of repose to include an exception for minors when it appears from the statutory language that the Legislature did not intend such an exception.
Although it is true that we did, in Penley, acquiesce in the Bowers holding by "limit the precedential weight of [the Bowers] opinion to its explicit holding that the three-year medical malpractice statute of repose is tolled during the minority of the plaintiff," 31 S.W.3d at 185, we chose not to overrule Bowers because the issue was not squarely presented in that case, as it is here. Moreover, the plaintiff's reliance on this statement is misplaced because our acquiescence was clearly in dicta. Not only did the two cases come to differing conclusions-Penley declining to find an exemption for mental incompetents to Tennessee's products liability statute of repose, and Bowers implicitly finding an implied exemption for minors to the medical malpractice statute of repose-the respective bases upon which the two holdings rested were entirely different as well. In fact, we expressed our total disagreement with the reasoning employed by the Bowers court to reach its holding.
We disagree with the rationale used by the Bowers court to find implied exceptions for minority and mental incompetence to the three-year medical malpractice statute of repose. The Bowers holding is in stark contrast to the plain language of the statute, which admits of no tolling other than for fraudulent concealment, and the holding fails to recognize the policies underlying the statute of repose itself.
Penley, 31 S.W.3d at 188.
We now expressly overrule the Bowers and Braden courts and hold that the plaintiff's minority does not toll the medical malpractice statute of repose. We do so not only on the basis of the clear language of the statute and our consistent characterizations of the medical malpractice statute of repose as an absolute three-year bar to such claims. We also stress our holding in Penley that the legal disability statute, Tennessee Code Annotated section 28-1-106, serves to toll only statutes of limitations and not statutes of repose. " his section is only applicable to extend the running of a statute of limitations, and we will not interpret the legal disability statute to give it effect beyond the fair import of its terms." Penley, 31 S.W.3d at 186. Further, " here the General Assembly enacts some specific limitations period as part of an overall statutory scheme, these specific limitations will apply over more general provisions found elsewhere in the code." Id. at 187 (citing Dobbins v. Terrazzo Mach. & Supply Co., 479 S.W.2d 806, 809 (Tenn. 1972)). To accept the argument that the legal disability statute trumps the medical malpractice statute of repose "would be to defeat the very purposes behind the enactment" of the latter. Id. We cannot, under the guise of judicial interpretation of the statute, in effect rewrite the law and thus substitute our own policy preferences for the Legislature's.
We emphasize that our holding here is an attempt to ascertain and apply the Legislature's intent in passing the medical malpractice statute of repose, and our analysis relies on the plain meaning of the terms employed by the General Assembly to compose the statute. "Where the language of the statute `is clear and unambiguous, then this Court will give effect to the statute according to the plain meaning of its terms.'" Penley, 31 S
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