Day on Torts
As Tennessee courts continue to decide new Health Care Liability Act (“HCLA”) cases, nuances of the law are beginning to be parsed out for practitioners’ guidance. The Tennessee Supreme Court recently took up such a nuance, determining that pre-suit notice must be given before the filing of each complaint under the HCLA.
In Foster v. Chiles, No. E2012-01780-SC-R11-CV (Tenn. Jan. 27, 2015), plaintiffs filed an HCLA claim against multiple defendants on March 17, 2011, which was within the appropriate statute of limitations. In connection with this first complaint, plaintiffs gave proper pre-suit notice under Tenn. Code Ann. § 29-26-121(a). On May 6, 2011, plaintiffs voluntarily dismissed the case. On May 4, 2012, within the one-year savings statute, plaintiffs filed a new complaint asserting the same claims against the same defendants. This second complaint stated that the notice requirements had been met as shown by an attached affidavit, but nothing was attached. The plaintiffs, in fact, did not give pre-suit notice after dismissing their first complaint and before filing their second. Instead, they relied on the first notice given to comply with the HCLA.
Defendants moved to dismiss, asserting that the HCLA required plaintiffs to give notice each time a complaint was filed. The trial court agreed, dismissing plaintiffs’ second complaint with prejudice. The Court of Appeals, however, reversed, finding that the HCLA “required only that Defendants be notified once.” The Supreme Court then took up the issue on appeal.
The Court pointed to the word “shall” used in § 29-26-121(a), as well as a quote from the bill’s co-sponsor saying the law was “designed to give people notice that there’s about to be a claim and to put everyone who might be involved on notice that a suit will shortly be filed.” The Court also examined the purpose of the pre-suit notice requirement, stating that it was intended to give timely notice, to “afford defendants the opportunity to investigate the merits of a claim and to pursue settlement negotiations before a suit is filed.” Because the plaintiffs here did not give pre-suit notice before filing their second complaint, the Court determined that the purpose of the statute was frustrated, as 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.”
Accordingly, the Court held that the HCLA “requires that plaintiffs provide pre-suit notice to prospective health care defendants each time a complaint is filed,” even in a case such as this where a previous complaint alleging the same claims against the same defendants had been properly noticed and filed. When plaintiffs fail to give this notice, the Court held that the proper sanction is dismissal without prejudice.
Justice Wade filed a separate, dissenting opinion in this case, in which he sided with the Court of Appeals. He stressed that a voluntary nonsuit is not unusual and does not have any affect on the defendants’ prior notice of the claims. He stated that nothing in the HCLA requires more than one notice of the same claims, the HCLA does not provide for a notice lapsing or expiring upon a nonsuit, and that plaintiffs here had complied with the law.
The dissenting opinion here seems to be the more reasonable approach. While the HCLA requires that pre-suit notice be given at sixty days before filing suit, it does not contain an outside limit on how long a proper pre-suit notice lasts. As Justice Wade noted, pre-suit notices do not statutorily expire. Despite the well-reasoned dissent, though, the law now requires plaintiff give defendants pre-suit notice before each complaint, even if the complaint filed is identical to one previously filed. Therefore, an attorney who takes a nonsuit with the intent to re-file in an HCLA case needs to make sure to calendar not just the savings statute deadline, but the resending of pre-suit notice as well.
The purpose of the pre-suit notice law was to give potential defendants the opportunity to settle meritorious cases and narrow down the number of defendants in cases that were actually filed. Instead, it is turned into a series of complicated hoops that one must jump through to be able to file suit – hoops that have nothing to do with the merits of the case.