State Supreme Court Rules Defendant Waived Defense By Not Timely Raising Issue

Friday, June 28, 2013

The Tennessee Supreme Court ruled 4-1 on Friday that a defendant in a health care liability action must act in a timely manner to assert that the claim is prohibited because it was filed too late by the plaintiff.

Plaintiff Eddie C. Pratcher Jr. filed a medical malpractice lawsuit in December 2000, asserting that various healthcare providers in Memphis were negligent in the treatment of his pregnant wife, Sandra Y. Jones-Pratcher, who died in the hospital in January 2000. He sued Consultants In Anesthesia, Inc. (Consultants) for the negligence of one of its nurses.

Mr. Pratcher added a negligence claim against Consultants’ president, Dr. Dinesh Chauhan, in an amended complaint after the three-year statute of repose ran. A statute of repose is a legal deadline that runs from the time of the initial event that caused the harm.

Consultants answered the complaint, but did not assert the affirmative defense of the statute of repose. An affirmative defense essentially means the defendant agrees with the complaint, but denies liability based on other reasons, in this case, that a legal deadline had passed.

A jury in the 2006 trial ruled that the defendants, including Consultants, were not liable. However, Mr. Pratcher filed a motion for a new trial, which the trial judge granted in part because of a problem with the jury instructions.

Consultants filed a motion to dismiss in 2009, claiming that the statute of repose prevented Mr. Pratcher from suing Consultants based on any alleged fault of Dr. Chauhan. Consultants also filed a motion to amend its answer to assert the statute of repose as an affirmative defense. A trial judge denied both motions.

The Tennessee Supreme Court determined the statute of repose is an affirmative defense under the plain language of Tennessee Rule of Civil Procedure 8.03. The Court also determined that Consultants waived the affirmative defense by failing to raise it until years after the trial.

“Today we clarify that the statute of repose is an affirmative defense that is generally waived if not timely raised,” wrote Justice Sharon G. Lee for the majority. “A defendant must assert an affirmative defense in a timely manner to secure the ‘just’ and ‘speedy’ resolution of litigation.”

Justice William C. Koch, Jr., disagreed with the majority. In his dissent, he wrote that “it is a very close call in light of the facts of the case.” Justice Koch continued that the granting of a new trial placed “both the plaintiff and the defendant back at square one,” and would permit the plaintiff ample opportunity to respond to the defense.

To read the majority opinion in Pratcher v. Methodist Healthcare Memphis Hospitals authored by Justice Lee, and the dissent by Justice Koch, visit the Opinions section of

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