In a case argued by David Randolph Smith to the Court of Appeals on September 8, 2008, on October 29, 2008, in a 2-1 decision the Tennessee Court of Appeals ruled in Crespo v. McCullough that Tennessee’s three-year statute of repose in medical malpractice cases could not be constitutionally applied to minors injured before December 9, 2005. The Court ruled in favor of the minor-plainitff Laura Crespo and held that the constitutional guarantees of due process and equal protection of laws were violated by applying the three-year statute of repose to minors who were injured prior to the Supreme Court’s decision in Calaway v. Schucker (12/09/05).
In Calaway the Tennessee Supreme Court held (3-2) that the three year statute of repose in the medical malpractiuce statute trumped the legal disability statute for minors and, contrary to prior law, minors did not have until age 19 to sue for medical malpractice. The Supreme Court decision in Calaway, however, did not consider or address any contitutional issue or challenge. The Court of Appeals accepted the argument advanced by the Crespos that the constitutionality of the three-year statute of repose as applied to minors injured before the date of the Calaway decision was an issue of first impression.
I will await an appeal to the Tennessee Supreme Court.