A man received medical treatment from two doctors, a urology practice, an anesthesiology practice, and a medical center. He notified the two doctors, the urology practice, the anesthesiology practice, and the medical center of his intent to file a health care liability action against them. He and his wife filed a health care liability action against them and subsequently voluntarily dismissed the claim.
The couple filed a new complaint in raising the same claims against the same defendants. The complaint alleged that the notice requirements of Tenn. Code Ann. § 29–26–121(a) had been met, as shown by an affidavit attached to the complaint. However, neither an affidavit nor any proof of service of notice was attached to the complaint. The couple did not give the defendants pre-suit notice after dismissing the first complaint and before filing the second action.
The defendants moved to dismiss the suit for failing to comply with the notice requirements and argued that the failure warranted dismissal with prejudice. The couple responded that they complied with the notice statute because they provided the defendants pre-suit notice before filing the first complaint and that the original notice was sufficient for any subsequently filed complaints.
The trial court granted the defendants' motions to dismiss, finding that Tenn. Code Ann. § 29–26–121(a)(1) required plaintiffs who have voluntarily non-suited a health care liability action to provide notice to all defendants before re-filing the action. The trial court dismissed the complaint with prejudice.
The Eastern Section of the Circuit Court of Appeals for Knox County reversed. The appellate court held that the couple had complied with Tenn. Code Ann. § 29–26–121(a)(1) by providing the defendants notice at least 60 days before filing their second complaint. The intermediate court reasoned that since the complaints were essentially identical, the plain language of the statute required only that the defendants be notified once. The Court of Appeals found that the couple’s failure to attach to their complaint the proof of service of notice under § 29–26–121(b) did not require dismissal and would have allowed the couple to late-file the required documentation.
The Supreme Court of Tennessee reversed the Court of Appeals and dismissed the action without prejudice. The court held that a person asserting a health care liability claim must give written notice of the claim to all potential health care defendants before re-filing a complaint, and the sanction for noncompliance is a dismissal without prejudice.
A person asserting a health care liability claim must give written notice of the claim to all potential health care defendants before re-filing a complaint. Notice given before filing the first complaint is not sufficient notice for a subsequently filed complaint against the same defendants. The court reasoned that when the couple first gave pre-suit notice, the defendants, knowing that a lawsuit was forthcoming, had the opportunity to investigate the claim and pursue settlement negotiations as contemplated by the notice statute. As of the dismissal of the suit, there was no pending litigation between the parties. Eighteen months after the couple first gave the defendants notice of the original suit, and nearly a year after the suit's dismissal, the couple sued the defendants again. The second filing was the institution of a new and independent action. 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, as opposed to the intention of the legislature in enacting the pre-suit notice requirement. The court concluded that because the couple did not provide the defendants with notice that they intended to recommence their health care liability action, the couple failed to comply with the pre-suit notice requirement.
The sanction for failing to provide pre-suit notice for each complaint is dismissal without prejudice. The legislature could have, but did not, provide for dismissal with prejudice for noncompliance with the pre-suit notice requirement, as it did in other sections of the Tennessee Health Care Liability Act. Therefore, the court held that dismissal without prejudice was the proper sanction for noncompliance with the pre-suit notice requirement for health care liability claims.
The Supreme Court of Tennessee reversed the Court of Appeals and dismissed the action without prejudice.
See: Foster v. Chiles, 2015 WL 343872 (Tenn., January 27, 2015) (not designated for publication).
See also Medical Law Perspectives, August 2012 Report: Anesthesiology Errors: Complications, Malpractice, and Catastrophe