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Medical Malpractice - Pre-suit notice requirement and savings statute

Posted on Jul 2 2012 10:09AM by Attorney, Jason A. Lee

There are more and more Tennessee Court of Appeals decisions interpreting the pre-suit notice provisions found in the Tennessee Medical Malpractice Act (now called “health care liability action” due to recent change in the language found in the 2011 Tennessee Tort Reform Bill at http://www.tn.gov/sos/acts/107/pub/pc0510.pdf).  This pre-suit notice requirement is found in T.C.A. § 29-26-121, which provides in part:

 

(a)(1) Any person, or that person's authorized agent, asserting a potential claim for medical malpractice 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 medical malpractice 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;

(C) The name and address of the attorney sending the notice, if applicable;

(D) A list of the name and address of all providers being sent a notice; and

(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.

 

As a result, the plaintiff must give notice to each health care provider that will be named as a defendant at least 60 days prior to filing a complaint against that health care provider.  A second provision in the statute provides an extension of the statute of limitations or statute of repose totaling 120 days from the date of the expiration of such statute.  T.C.A. § 29-26-121(c) provides as follows: 

 

(c) When notice is given to a provider as provided in this section, the applicable statutes of limitations and repose shall be extended for a period of one hundred twenty (120) days from the date of expiration of the statute of limitations and statute of repose applicable to that provider. Personal service is effective on the date of that service. Service by mail is effective on the first day that service by mail is made in compliance with subdivision (a)(2)(B). In no event shall this section operate to shorten or otherwise extend the statutes of limitations or repose applicable to any action asserting a claim for medical malpractice, nor shall more than one (1) extension be applicable to any provider. Once a complaint is filed alleging a claim for medical malpractice, the notice provisions of this section shall not apply to any person or entity that is made a party to the action thereafter by amendment to the pleadings as a result of a defendant's alleging comparative fault. (emphasis added)

 

The recent Tennessee Court of Appeals decision of Derrick Johnson et al v. Jerry R. Floyd, M.D. et al, No. W2012-00207-COA-R3-CV (filed June 29, 2012) is yet another case interpreting this statute.  This case can be found here: http://www.tncourts.gov/sites/default/files/johnsondopn.pdf.  In this case, the plaintiffs originally filed suit on December 7, 2004 alleging the medical negligence of multiple doctors and a medical care facility.  On April 27, 2010, the plaintiffs entered an order of voluntary dismissal.  On April 11, 2011, the plaintiffs provided the medical care providers with written notice of a potential claim as required under T.C.A. § 29-26-121.  On August 24, 2011, within one year and 120 days from the order of voluntary dismissal concluding the first case but beyond the one year savings statute, the plaintiffs refiled their complaint. 

 

Therefore the issue in this case was whether the one year savings statute found in T.C.A. § 28-1-105 is extended by the provision found in T.C.A. § 29-26-121 which gives an additional 120 day extension for the statute of limitations to file suit as long as the required pre-suit notice is provided within the one year time frame.  The Tennessee savings statute allows a party to refile a suit within one year following a dismissal without prejudice.

 

The Tennessee Court of Appeals held that "the savings statute, Tennessee Code Annotated Section 28-1-105(a), is not an applicable statute of limitations for purposes of the medical malpractice notice requirement.  Accordingly, compliance with the medical malpractice notice requirement does not operate to extend the savings statute beyond one year from the date of a non-suit." Johnson at p. 15. As a result, the Appellate Court dismissed plaintiffs' claims because they were not filed in an untimely manner.  Ultimately, the plaintiff had to refile the lawsuit within one year of the voluntary dismissal to take advantage of the savings statute.

 

The significance of this case is that it further strengthens a good defense for Tennessee medical malpractice defense attorneys.  If the plaintiff does not comply with the notice requirements and refile the lawsuit after it has been voluntarily dismissed, all within the one year time frame offered by the savings statute, then the new lawsuit is untimely and should be dismissed under Tennessee law.  This certainly could be an issue that the Tennessee Supreme Court takes up at a later date however the Tennessee Court of Appeals interpreted the statutory language in a literal manner that is appropriate in this context.

TAGS: Tennessee Medical Malpractice/Health Care Liability, Savings Statute, Statute of Limitations, Statute of Repose
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Jason A. Lee is a Member of Burrow Lee, PLLC. He practices in all areas of defense litigation inside and outside of Tennessee.

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Tennessee Defense Litigation Blog
Jason A. Lee, Member of Burrow Lee, PLLC
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Nashville, TN 37203
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E-mail: jlee@burrowlee.com

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