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Friday, October 31, 2008

Crespo Opinion

Yesterday, the Tennessee Court of Appeals released its opinion in Crespo v. McCullough, No. M2007-02601-COA-R3-CV (Tenn. Ct. App., Oct. 29, 2008). This case is a medical malpractice case involving an alleged medical injury to a child. It held that the three-year statute of repose contained in Tennessee Code Annotated section 29-26-116(a) (2000) was unconstitutional as applied to these particular plaintiffs because it violated their due process and equal protection rights.

The majority's opinion addresses and reconciles any perceived conflict between this opinion and Calaway v. Schucker, 93 S.W.3d 509 (Tenn. 2005). Calaway held that the three-year statute of repose for medical malpractice actions applied to all cases filed after December 9, 2005 (i.e., when Calaway was issued). For purposes of information, the complaint in Crespo, which complained of an injury to a minor more than three years before, was filed on August 2, 2007. Crespo, M2007-02601-COA-R3-CV, slip op. at 10. The plaintiffs in Crespo had relied on the long-established precedents that had held that a minor's claim was tolled until majority.

Judge Swiney issued a brief dissent. He would hold that the Crespo's claim is time-barred under Calaway.

Here's Judge Swiney's dissent:

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