Non-Suit Allowed to Cure Pre-Suit Notice Deficiencies

In Phillips v. Casey, No. E2014-01563-COA-R9-CV (Tenn. Ct. App. July 21, 2015) plaintiff’s late husband was a patient of defendant doctor. Sometime in 2011 or 2012, defendant diagnosed husband with angioedema. Defendant also diagnosed husband with hypertension and prescribed a medication to treat that condition. On April 2, 2012, husband had a bilateral tonsillectomy performed by another doctor, and husband died that evening. Plaintiff received a copy of the autopsy report on July 3, 2012, which listed the primary cause of death as angioedema. On April 2, 2013, plaintiff filed suit against defendant doctor and his employer alleging that doctor was negligent by prescribing medicine to husband known to aggravate angioedema and by failing to inform the doctor performing the tonsillectomy of husband’s condition.


Before filing her first health care liability claim, plaintiff did not send the statutorily required pre-suit notices to the two named defendants. Accordingly, defendants filed a motion to dismiss. While that motion was pending, plaintiff voluntarily dismissed her claims without prejudice. Plaintiff then sent proper pre-suit notice that met all the statutory requirements and subsequently re-filed her suit. Defendants moved to dismiss again, asserting that plaintiff’s initial complaint was untimely and that she could thus not rely on the saving statute and that plaintiff could not re-file her suit in order to comply with the pre-suit notice requirements. The trial court denied the motion to dismiss but granted an interlocutory appeal to consider the following issue:


Whether Tennessee Code Annotated section 29-26-121 permits a plaintiff to take a voluntary nonsuit pursuant to Tennessee Rules of Civil Procedure 41.01 with a motion to dismiss pending, resend notice of intent to the providers, and then refile a new action within the original statute of limitations or in accordance with the savings statute.

The first issue at play was whether plaintiff’s initial suit was timely—if it was not, she could not rely on the saving statute. The Court considered when plaintiff had both actual and/or constructive notice, as either would be enough to trigger the running of the statute of limitations. Defendants argued that the injury occurred and the one-year statute of limitations began to run when the doctor prescribed the hypertension medication in February 2012. At the very latest, defendants asserted that the statute of limitations began to run on husband’s last visit to defendant doctor in March 2012. The Court, however, rejected this argument. The Court found that the earliest plaintiff could have had actual notice was when she received the autopsy report, and that a trier of fact could reasonably conclude that plaintiff did not have constructive knowledge of the injury until April 2, 2012 or later. In reasoning that the one-year did not run from the date of the prescription, the Court stated:

A patient’s trust in his or her doctor cannot be blind, but it also cannot be nonexistent. If we were to accept [defendants’] argument that the statute of limitations began to ‘run’ simply when the allegedly incorrect prescription or treatment occurred, the inherent trust that exists between a doctor-patient would vanish. No longer could a patient take his or her doctor’s advice freely; instead, patients would be tasked with independently fact-checking information on conditions and drugs.

The Court determined that whether plaintiff had constructive notice of the injury before husband’s April 2nd death was a question of fact and remanded the case to the trial court to make that determination.

Next, the Court considered whether plaintiff could nonsuit and re-file expressly to cure her failure to comply with HCLA pre-suit notification requirements. The Court pointed out that § 29-26-121 “does not provide a penalty for noncompliance,” and that Tennessee Rule of Civil Procedure 41.01 states that a plaintiff “shall have the right to take a voluntarily nonsuit…at any time before the trial of a cause,” so long as a motion for summary judgment made by the adverse party is not pending. Reading these together, the Court concluded that “[n]othing within the plain language interpretation of [the HCLA] supports the conclusion that a plaintiff in a health care liability action is not allowed to re-file a claim after taking a voluntary dismissal.” Further, in light of the specific prohibition from taking a nonsuit when a summary judgment motion is pending, the Court found that “[h]ad the legislature intended to bar a plaintiff’s re-filed health care liability action due to either: (1) deficiencies in the original complaint; or (2) a defendant’s motion to dismiss, it would have plainly done so as it did with a motion for summary judgment.”

In affirming the trial court’s denial of the motion to dismiss, the Court specifically differentiated this case from prior HCLA cases that were dismissed, pointing out that plaintiff here was not trying to excuse compliance by showing extraordinary cause, plaintiff never tried to amend the first complaint, and that plaintiff’s second complaint did not contain any statutory deficiencies. The second action filed by plaintiff was a new action, not a “continuation of the original complaint.” The Court found that plaintiff was allowed to re-file “even though she voluntarily dismissed the initial complaint solely to correct her failure to comply with the statutory requirements applicable in health care liability actions.”

This opinion was well-reasoned and came to the correct conclusion on this issue. Nothing in either the HCLA or the Rules of Civil Procedure prevent a plaintiff from taking a nonsuit when a motion to dismiss is pending. Here, plaintiff filed her first suit in a timely manner, took a permitted non-suit, and then re-filed in total compliance with the HCLA. Dismissing her case would place form over substance and deny her the use of a well-established litigation tool.