In its decision filed on January 27, 2015, the Supreme Court of Tennessee (“Tennessee Supreme Court”) held that the medical malpractice plaintiffs were required to provide the medical malpractice defendants with a second pre-suit notice after voluntarily dismissing their original medical malpractice case and before re-filing their medical malpractice case.
Tenn. Code Ann. § 29-26-121(a)(1) requires pre-suit notice for medical malpractice cases: “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.” The Tennessee Supreme Court had previously held that the requirement of pre-suit notice is mandatory and not directory, and that strict compliance with the pre-suit notice provision is required (substantial compliance is not sufficient).
The Tennessee Supreme Court stated that the issue it had to decide in the present case was whether notice given before the filing of the first complaint is sufficient pre-suit notice for a suit that is re-filed after the dismissal of the first complaint. The medical malpractice plaintiffs argued that § 29-26-121(a)(1) requires that pre-suit notice be given at least sixty days before the filing of “a complaint” and that they had provided the medical malpractice defendants with the required pre-suit notice in November 2010, which sufficed for both the original complaint filed in March 2011 (which the plaintiffs voluntarily dismissed) and the re-filed complaint filed in May 2012. The defendants argued that the pre-suit notice given for the first complaint was not sufficient notice for the re-filed complaint and that they were entitled to new notice before the plaintiffs re-filed their lawsuit.
The Tennessee Supreme Court held that the second filing was the institution of a new and independent action and that the defendants had no advance notice of the second suit, no chance to investigate the claim, and no opportunity to pursue settlement negotiations before the suit was filed, which was not the result intended by the Legislature in enacting § 29-26-121(a)(1) (“Although the March 2011 and May 2012 complaints asserted the same claims and involved the same parties, Defendants were statutorily entitled to separate notice of each forthcoming complaint so that they might evaluate the merits of the claim and pursue settlement. To hold otherwise would be to ignore the clear and unambiguous language of § 29-26-121(a)(1) and to thwart the intent of the Legislature. We do not favor procedural dismissals, but we are unwilling to engage in a strained interpretation of the statute to reach a desired result. The [plaintiffs] could easily have avoided the delay caused by the dismissal of their complaint had they simply complied with the statute and given Defendants pre-suit notice.”)
The Tennessee Supreme Court therefore held that Tenn. Code Ann. § 29-26-121(a)(1) requires that plaintiffs provide pre-suit notice to prospective health care defendants each time a complaint is filed, and that dismissal without prejudice is the proper sanction for noncompliance with Tenn. Code Ann. § 29-26-121(a)(1). A dissenting opinion responded, however, that “the dismissal of this action under these circumstances conflicts with the principle that disputes should be decided on their merits whenever possible. The dismissal will perhaps preclude, and will certainly delay, resolution of the ultimate issue—whether the Defendants breached their duty of care to [the plaintiff].”
Source Foster, et al. v. Chiles, III, M.D., et al., No. E2012-01780-SC-R11-CV.
If you suffered serious injuries as a result of possible medical negligence in Tennessee or in another U.S. state, you should promptly seek the legal advice of a Tennessee medical malpractice attorney or a medical malpractice attorney in your state who may investigate your medical malpractice claim for you and represent you in a medical malpractice lawsuit, if appropriate.
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