Statute Makes It Harder for Those Dealing with Mental Decline to Recover If They Are Injured
Historically, a statute of limitations did not run against an injured party if the person was incompetent. The idea was that it was unfair to penalize someone for not bringing suit if he was incapable of doing so. A new Court of Appeals ruling offers the first analysis by a court of the 2011 amendment to Tenn. Code Ann. § 28-1-106, the statute tolling a statute of limitations on the basis of the claimant’s incompetence, and the news is bad for injured parties.
In Johnson ex. rel Johnson v. UHS of Lakeside, LLC, Willie Johnson, Jr., was involuntarily admitted to a behavioral health care hospital and, while there, fractured his hip and neck. Shortly after his hospitalization, his wife was appointed as his conservator, but Mr. Johnson die soon thereafter.
On October 15, 2013, Mrs. Johnson mailed her pre-suit notice of a potential health care liability action against Lakeside. Then, on February 7, 2014, Mrs. Johnson filed her lawsuit. Lakeside answered the lawsuit and also filed a motion to dismiss, arguing that the lawsuit was filed after the expiration of the statute of limitations. Lakeside specifically argued that Mrs. Johnson failed to timely give pre-suit notice within a year of Mr. Johnson’s injury and failed to plead facts sufficient to create an exception to the pre-suit notice requirement.
Mrs. Johnson responded and included documentation that she asserted showed that Mr. Johnson had been adjudicated incompetent prior to his injury because of the judicial certificates of need that resulted in his involuntary hospitalization. Thus, Mrs. Johnson argued that the tolling provision of Tenn. Code Ann. §28-1-106 should apply. The trial court and Court of Appeals determined that the statute of limitations was not tolled. His involuntary hospitalization was not an adjudication of incompetency under the statute.
This case highlights the dramatic narrowing that occurred when Tenn. Code Ann. §28-1-106 was amended in 2011. Instead of showing that claimant was of “unsound mind” at the time the cause of action accrued, the claimant must now show that a court had already entered an order finding that claimant was incompetent at the time the cause of action accrued. This amendment substantially narrows the class of plaintiffs who will be able to make use of this statute to toll a statute of limitations.
The language of the statute is unfortunate. It is frequently unnecessary to have someone adjudicated incompetent in order for a family to provide care for their family member who is suffering from mental illness or some other malady. When someone who is incompetent gets injured, they now have a double whammy—they may not be able to seek compensation in a timely fashion because of their incompetence, unless that incompetent person has the forethought to have themselves adjudicated incompetent. Talk about a Catch-22!