In its decision filed on December 9, 2014, the Court of Appeals of Tennessee sided with the medical malpractice plaintiff in a case where the defendants successfully moved to dismiss the plaintiff’s re-filed medical malpractice lawsuit on the basis that the required pre-suit notices provided with regard to the plaintiff’s initial lawsuit were deficient because they failed to include the date of birth of the decedent (who allegedly died as a result of the medical negligence of the defendants) and they also failed to state the name and address of the decedent’s wife, who authorized the notices.
The plaintiff’s initial Tennessee medical malpractice lawsuit was filed on May 6, 2011 and alleged that the plaintiff’s husband died on May 19, 2010 as a result of the medical negligence of the defendants in connection with the husband’s elective eye surgery performed on May 13, 2010. The plaintiff’s complaint stated that pre-suit notice had been given to the defendants pursuant to Tennessee Code Annotated § 29-26-121, which provides, in part: (a)(1) Any person, or that person’s authorized agent, asserting a potential claim for health care liability shall give written notice of the potential claim to each health care provider that will be a named defendant at least sixty (60) days before the filing of a complaint based upon health care liability in any court of this state. (2) The notice shall include: (A) The full name and date of birth of the patient whose treatment is at issue; (B) The name and address of the claimant authorizing the notice and the relationship to the patient, if the notice is not sent by the patient; … (E) A HIPAA compliant medical authorization permitting the provider receiving the notice to obtain complete medical records from each other provider being sent a notice …
On June 14, 2011, the defendants filed motions to dismiss the plaintiff’s complaint because the pre-suit notices failed to state the husband’s date of birth and the wife’s name and address, and the medical authorizations signed by the plaintiff failed to comply with the statute. The plaintiff subsequently filed notices of voluntary non-suit as to the defendants, and the trial court dismissed the plaintiff’s medical malpractice lawsuit “without prejudice,” on September 9, 2011.
Shortly afterwards, the plaintiff provided new pre-suit notices to the defendants pursuant to Tennessee Code Annotated § 29-26-121. On February 29, 2012, the plaintiff filed a new medical malpractice lawsuit against the defendants and stated that notices had been given pursuant to Tennessee Code Annotated § 29-26-121. The defendants did not contend that the plaintiff failed to comply with the pre-suit notice requirements with regard to her second lawsuit.
The defendants filed motions to dismiss, arguing that the plaintiff had failed to comply with the pre-suit notice requirements in her initial lawsuit and therefore the initial complaint was void and failed to toll the statute of limitations. The trial court sided with the defendants and the plaintiff appealed.
Tennessee has a so-called “savings statute” (Tennessee Code Annotated § 28-1-105) that provides: (a) If the action is commenced within the time limited by a rule or statute of limitation, but the judgment or decree is rendered against the plaintiff upon any ground not concluding the plaintiff’s right of action, or where the judgment or decree is rendered in favor of the plaintiff, and is arrested, or reversed on appeal, the plaintiff, or the plaintiff’s representatives and privies, as the case may be, may, from time to time, commence a new action within one (1) year after the reversal or arrest.
The Court of Appeals stated that the issue before it was whether the filing of the plaintiff’s initial lawsuit constituted a commencement within the meaning of the savings statute. If it did, then the subsequent (second) medical malpractice lawsuit receives the benefit of the tolling provided by the savings statute. The commencement of an action is governed by Rule 3 of the Tennessee Rules of Civil Procedure, which provides, in part: All civil actions are commenced by filing a complaint with the clerk of the court. An action is commenced within the meaning of the any statute of limitations upon such filing of a complaint, …
The Court of Appeals determined that Tennessee Code Annotated § 29-26-121 does not alter the definition of commencement that occurs pursuant to Rule 3. Therefore, the Court of Appeals held that the plaintiff’s May 6, 2011 filing constituted a commencement and the second lawsuit commenced by the plaintiff in February 2012 was timely (“Despite non-suiting her first lawsuit, Plaintiff commenced a second lawsuit within the one year time period provided for in Tennessee Code Annotated § 28-1-105. As such, application of the tolling period provided by the savings statute is warranted, and the trial court’s dismissal of Plaintiff’s Complaint was in error.”). The Court of Appeals further stated, “Although the pre-suit notice requirements must be given under the statute, unless properly excused, a plaintiff’s failure to satisfy them before the filing of a complaint does not prevent that plaintiff’s filing from being considered a commencement within the meaning of the savings statute.”
Source Charlotte J. Cartwright et al. v. DMC-Memphis Inc. d/b/a Delta Medical Center et al., No. W2013-01614-COA-R3-CV.
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