Day on Torts
The issue of whether a Tennessee plaintiff who nonsuits his or her first medical malpractice (now heatlh care liability) complaint must give a second notice before re-filing is a closed matter given the recent ruling in Foster v. Chiles. In the recent case of Potter v. Perrigan, No. E2013-01442-COA-R3-CV (Tenn. Ct. App. March 26, 2015), just such a scenario played out.
Plaintiffs gave pre-suit notice on January 8, 2009; they filed their initial suit on April 8, 2009; then on September 8, 2009, they voluntarily dismissed the action. One year later, pursuant to the savings statute, plaintiffs filed a second complaint on September 8, 2010. Attached to this complaint was a certificate of good faith and copy of the previously filed pre-suit notice. Plaintiffs did not send defendants a second pre-suit notice before re-filing their claims. Upon motion of the defendant, the trial court dismissed for failure to comply with Tenn. Code Ann. § 29-26-121. The Court of Appeals initially reversed this decision, holding that “Plaintiffs fulfilled the notice requirement[.]” Defendant then appealed to the Tennessee Supreme Court, which remanded the case for reconsideration in light of an opinion it issued in January, 2015.
When considering Potter for the second time, the Court of Appeals essentially just quoted and adopted the Supreme Court’s language from Foster v. Chiles, No. E2012-01780-SC-R11-CV, 2015 WL 343872 (Tenn. Jan. 27, 2015). Therein, the Supreme Court determined that when a plaintiff gives pre-suit notice, files a complaint, nonsuits the first complaint, then decides to re-file, a second pre-suit notice is required by the HCLA. The Foster court reasoned:
The second filing was the institution of a new and independent action. 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. … We hold 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.
Based on the Supreme Court’s reasoning, the Court of Appeals decided in Potter that plaintiffs were required to give notice again before filing their second complaint, and that because they failed to do so, the case was dismissed without prejudice.
While this issue is now settled in Tennessee case law, it seems to be a somewhat strained interpretation of the HCLA. No part of the pre-suit notice statute provides an expiration date for a previously sent notice, and there is no maximum number of days for which a notice is allegedly valid (limited, of course, by statute of limitation concerns). Whether one agrees or disagrees with this new view of the law makes little difference: a plaintiff who gives proper notice and then nonsuits his first HCLA complaint must now give a second notice before re-filing to avoid dismissal.