Day on Torts
The 120-day extension of the statute of limitations granted to health care liability plaintiffs who give proper pre-suit notice under the HCLA does not apply to or extend the Saving Statute.
The Tennessee Supreme Court addressed the interplay between pre-suit notice, the 120-day statute of limitations extension, and the Saving Statute in Richards v. Vanderbilt University Medical Center, No. M2022-00597-SC-R11-CV, — S.W.3d — (Tenn. Jan. 22, 2025). The plaintiff had filed an HCLA suit against the defendant after giving proper pre-suit notice under the statute. When filing his first case, the plaintiff utilized the 120-day extension of the limitations period granted by the HCLA. The plaintiff took a voluntary nonsuit in the first case, and subsequently refiled his case pursuant to Tennessee’s Saving Statute, which allows certain cases to be refiled within a year of the dismissal. The second complaint was filed more than a year after the voluntary dismissal, but the plaintiff argued that because he gave pre-suit notice, he was entitled to the 120-day extension pursuant to Tenn. Code Ann. § 29-26-121(c).
The trial court dismissed the refiled complaint, holding that it was time-barred. The Court of Appeals affirmed dismissal based on the statute of limitations. In this opinion, the Supreme Court affirmed, holding that the 120-day extension granted by the HCLA does not apply to extend the Saving Statute.
In its analysis, the Supreme Court focused on the language of the statute. Tenn. Code Ann. § 29-26-121(c) states that when pre-suit notice is given under the HCLA, “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.” The Court pointed out that the statute does not refer at all to the Saving Statute and reasoned:
It would have been simple for the General Assembly to list the Saving Statute alongside the applicable statutes of limitations and repose in section 29-26-121(c). Yet, no reference to the Saving Statute is found in the text of the statute. Likewise, the General Assembly could have articulated in section 29-26-121(c) that statutes subject to the 120- day extension include statutes of limitations and repose, leaving open the possibility that the legislature did not intend to limit the extension to those circumstances. However, no such inclusive language was used by the General Assembly. Additionally, [the defendant] correctly references several instances in which the General Assembly has “demonstrated an awareness of the Saving[] Statute and [a] willingness to reference it where intended.” We agree with [the defendant] that it would be illogical for the General Assembly to directly reference the Saving Statute in multiple statutes while simultaneously expecting it to be an implicit recipient of section 29-26-121(c)’s 120-day extension. To conclude that the legislature sought to make the extension applicable to the Saving Statute under these circumstances would “unduly . . . expand[] the statute’s intended scope.”
(internal citations omitted).
The Supreme Court acknowledged the plaintiff’s reliance on previous cases that allowed an extension of the Saving Statute, but it stated that those cases were limited to the small group of plaintiffs who filed their initial health care claim before enactment of the HCLA pre-suit notice requirement, then subsequently refiled their claim after the HCLA required such notice. These transitional plaintiffs were permitted to utilize the 120-day extension while filing under the Saving Statute, but the Court described this ruling as “narrow and applied only to transitional plaintiffs.”
Based on the language of the statute, the Supreme Court held that the 120-day extension in “section 29-26-121(c) only extends the Saving Statute for transitional plaintiffs” and is otherwise “inapplicable to actions refiled pursuant to the Saving Statute in Tennessee Code Annotated section 28-1-105.”
This opinion is a vital read for HCLA litigants. Should a plaintiff wish to nonsuit and refile a case, he or she must give a second, timely pre-suit notice for the re-fililng, but the second case must be filed within one year of dismissal of the first.
The Supreme Court released this opinion eight months after oral arguments in this case.