Voluntarily Nonsuited Case Cannot Serve as Notice or Certificate of Good Faith for Later Filed Medical Malpractice Suit

The plaintiff sued the defendants for medical malpractice and the plaintiff later voluntarily dismissed the lawsuit. The legislature enacted two statutes, requiring plaintiffs filing medical malpractice claims to give named healthcare providers sixty days’ notice prior to filing the suit and to file with the complaint a certificate of good faith confirming that they have consulted with an expert who has provided a signed written statement that there is a good-faith basis to maintain the action.


After those two laws took effect, the plaintiff re-filed the medical malpractice action. The plaintiff did not give the named healthcare providers sixty days’ notice prior to filing the suit, nor did he file with the complaint a certificate of good faith. The defendants filed a motion to dismiss for failure to state a claim. The district court denied their motion. The defendants appealed. The court of appeals reversed the district court and remanded with instructions to dismiss. The plaintiff appealed.


The Supreme Court of Tennessee affirmed the court of appeals holding that the plaintiff’s complaint must be dismissed with prejudice because the patient failed to strictly comply with the mandatory statutory presuit notice and certificate of good faith requirements. The court rejected the plaintiff’s argument that he substantially complied with the statutes because the prior suit gave the defendants notice and the proceedings surrounding the prior suit involved expert disclosures. The court reasoned that the statutes contained the word “shall,” therefore their requirements were mandatory, not directory. Mandatory requirements cannot be satisfied by substantial compliance, only strict compliance.


Moreover, when the plaintiff voluntarily dismissed his earlier claim, that claim ceased to exist. It could not serve as notice with regard to a subsequent legal action. The evidence developed in the nonsuited claim could not form the basis of a subsequent legal action’s compliance with a filing requirement.


See: Myers v. AMISUB (SFH), Inc., 2012 WL 4712152 (Tenn., October 4, 2012) (not designated for publication).