Day on Torts
In Tennessee, before a plaintiff may file a lawsuit for medical malpractice, he or she must give pre-suit notice to the defendants in compliance with a Tennessee statute, Tenn. Code Ann. § 29-26-121(a).
In Potter v. Perrigan, the Court of Appeals recently addressed whether a plaintiff who properly gives notice and files a medical negligence lawsuit but later voluntarily dismisses the lawsuit must give notice again before re-filing the case. In Potter, the trial court dismissed the second lawsuit finding the plaintiff failed to comply with the requirement of pre-suit notice since the plaintiff did not give notice a second time before re-filing the lawsuit.
The Court of Appeals disagreed with the trial court finding that the applicable notice statute required notice sixty days in advance of the filing of a lawsuit and that plaintiff gave notice more than sixty days prior to filing the suit the second time when the plaintiff gave notice before the initial filing of the case. The Court of Appeals noted that the second lawsuit asserted the same cause of action against the same defendants.
The defendants also asserted that the notice was not compliant with a 2009 revision to the Tennessee Medical Malpractice Act. The court held that because the notice was given prior to the 2009 revision, it did not have to be in compliance with the 2009 revision because the express language of the 2009 amendment states that it only applies to notice given on or after July 1, 2009.
Tennessee lawyers would be advised not to rely on this decision until the Tennessee Supreme Court rules on the issue. The most conservative course of action would be to give notice before the second filing of the case.