The interplay between the saving statute and the 120-day extension provided by the HCLA in Tenn. Code Ann. § 29-26-121(c) continues to be a hotly litigated topic, with the Tennessee Court of Appeals adding another opinion to the mix this week. In 2013, the Supreme Court held that transitional plaintiffs (those whose initial suits were filed before the pre-suit notice requirement was enacted but who nonsuited and re-filed after the pre-suit notice requirement went into effect), who were required to give pre-suit notice before re-filing their lawsuit, were entitled to the 120-day extension even though they were filing their second suit pursuant to the saving statute instead of the traditional statute of limitation. Rajvongs v. Wright, 432 S.W.3d 808 (Tenn. 2013). Then just a month ago, the Supreme Court held that the HCLA “requires that plaintiffs provide pre-suit notice to prospective health care defendants each time a complaint is filed,” meaning that a plaintiff who gives proper notice, nonsuits, then re-files must give a second notice before the re-filing of the claims, even if the claims are identical. Foster v. Chiles, 2015 WL 343872 (Tenn. Jan. 27, 2015). Now, in Tinnel v. East Tenn. Ear, Nose, and Throat Specialists, P.C., No. E2014-00906-COA-R3-CV (Tenn. Ct. App. Feb. 25, 2015), the Court of Appeals has interpreted these prior cases to find that a plaintiff who nonsuits an HCLA case and then gives proper notice and re-files is entitled to the 120-day extension on the re-filed complaint.
In Tinnel, plaintiff suffered an injury during an outpatient procedure resulting in blindness in one eye. The procedure was performed on February 3, 2009. Plaintiff gave proper pre-suit notice on May 19, 2009, then filed suit on February 3, 2010. On December 14, 2010, plaintiff voluntarily dismissed the first lawsuit. Subsequently, on October 18, 2011 and within one year of the nonsuit, plaintiff provided a second set of pre-suit notices to defendants. Plaintiff filed her second suit on April 3, 2012, which was more than a year from the date of her previous nonsuit but within the time that would be included if the 120-day extension were applied. Defendant moved for summary judgment on the basis that the second suit was not timely.
Plaintiff argued that the reasoning the Supreme Court used in Rajvongs should not be confined to transitional plaintiffs and should apply to provide her with the 120-day extension. Moreover, she asserted that since her first suit was filed within the traditional one-year statute of limitation, she had not yet utilized the 120-day extension. Defendants asserted that the Rajvongs holding should be limited only to transitional plaintiffs and that plaintiff automatically received the 120-day extension on her first suit, whether she used it or not, and was therefore not entitled to another extension. The trial court dismissed the case, and plaintiff appealed.
In its analysis, the Court quoted lengthily from both Rajvongs and Foster, emphasizing that in Foster the Supreme Court made it clear that plaintiffs who utilize a nonsuit must give a second notice before re-filing the same complaint and that in Rajvongs the same court stated that they were “unable to conclude that the General Assembly would require transitional plaintiffs to provide pre-suit notice before refiling under the saving statute and yet deprive such plaintiffs of the 120-day extension.” Rajvongs, 432 S.W.3d at 814. The Court of Appeals thus held:
Like the Supreme Court in Rajvongs, we are unable to conclude that the General Assembly would require plaintiffs to provide pre-suit notice before refiling under the saving statute and yet deprive them of the 120-day extension. …We hold that Plaintiff was entitled to the 120-day extension provided for in section 29-26-121(c) because she provided Defendants with pre-suit notice that she intended to recommence her action. In so holding, we reject Defendants’ argument that Plaintiff was only entitled to the use of one extension. Plaintiff’s re-filed complaint was a new and independent action.
Accordingly, the Court removed the “transitional plaintiff” limitation from the Rajvongs ruling and held that the 120-day extension applies to all HCLA plaintiffs re-filing under the saving statute, whether they have previously used such an extension or not, so long as pre-suit notice is provided.
The Court of Appeals reached the sensible result in this case. If plaintiffs are required to give pre-suit notice before re-filing a complaint identical to one that was previously nonsuited, then they should also be given the benefits that come along with such notice. Otherwise, the defendant receives the procedural benefit of notice (and the corresponding challenges that often come regarding the sufficiency of such notice), yet the plaintiff loses the benefit statutorily tied to this additional requirement. Since current case law requires a pre-suit notice for each filing, an extension should also accompany each pre-suit notice.
Should defendant decide to appeal, it will be interesting to see whether the Supreme Court decides to take this case. The tone of this opinion seems a bit reactive—a panel of the Court of Appeals held in the recently decided Foster case that an original notice was sufficient for any subsequently filed complaints, but then the Supreme Court reversed that holding. The Court of Appeals in the present matter specifically points out this disagreement and then uses language pulled from Foster to find that if a pre-suit notice is required, then plaintiffs should at least gain the benefit of the 120-day extension. This is definitely an area of HCLA interpretation that is important for practitioners to watch, as it is unclear what the Supreme Court would hold regarding this issue.