Day on Torts
The health care liability notice statute continues to supply our courts with work that has nothing to do with the merits of the claim, defense lawyers with increased income for simply pivoting, and plaintiff’s lawyers with heartburn.
The plaintiffs in Johnson v. Floyd, No. W2012-00207-COA-R3-CV (Tenn. Ct. App. Feb. 6, 2014) filed a medical malpractice suit in December 2004. More than five years later, the plaintiffs entered an order of voluntary dismissal without prejudice on April 27, 2010.
In the interim, Tennessee experienced substantial legislative reform that made filing lawsuits more difficult for victims of medical malpractice. The resulting pre-suit notice requirements that went into effect in 2009, found in Tenn. Code Ann. §§ 29-26-121 and -122, have been discussed on this blog in multiple previous posts. In sum, a plaintiff must satisfy certain notice requirements at least 60 days before filing a medical malpractice suit (re-labeled “health care liability” suit under the legislative reform), file a certificate of good faith with the complaint. In exchange for "proper "compliance with notice section with the original statute the one year statute of limitations for filing suit is extended by 120 days.
Meanwhile, Tennessee also has a “saving statute” which allows plaintiffs who originally filed complaints within the applicable statute of limitations to re-file their suit within one year from any voluntary dismissal without prejudice.
The critical issue in Johnson was whether the saving statute should be extended by 120 days through compliance with the medical malpractice notice requirements. Coincidentally, the Tennessee Supreme Court recently answered this question in the affirmative on December 12, 2013, in Rajvongs v. Wright, 2013 WL 6504425 (Tenn. 2013).
Just like the plaintiffs in Rajvongs, the Johnson plaintiffs are “transitional plaintiffs” in that they filed their initial complaint prior to the effective date of Tenn. Code Ann. § 29-26-121, dismissed their original action, and refiled their lawsuits after the effective date of the statute. The voluntary dismissal was entered on April 27, 2010. The plaintiffs gave written notice per -121 on April 11, 2011, and the complaint was re-filed on August 24, 2011, which is within one year and 120 days from the date the voluntary dismissal was ordered. Because Tennessee law now clearly extends the savings statute for 120 for transitional plaintiffs who comply with the pre-suit notice requirements, the Johnson court ruled that the second complaint was timely filed.