Application of Tennessee Savings Statute When Initial Filing Deadline Missed

In Jones v. Behrman, No. W2016-00643-COA-R3-CV (Tenn. Ct. App. June 27, 2017), the Court of Appeals affirmed dismissal of an HCLA claim for failure to file within the applicable statute of limitations

Decedent suffered from several health problems, and in February 2011 she had a capsule endoscopy. Two days later, an x-ray showed that the “capsule was still present.” The following day, tests “showed no bowel obstruction but that the capsule remained in the right lower quadrant.” On February 20, 2011, decedent was admitted to the hospital and tests revealed a bowel obstruction. A procedure was performed, and at some point “the surgeons lacerated or penetrated the small bowel, which required them to resect a portion of the bowel.” The injured site or some other part of the small bowel leaked after the surgery, and decedent developed peritonitis and sepsis. Decedent died on April 21, 2011.

On January 24, 2012, decedent’s family members sent pre-suit notice to the doctors who did the capsule endoscopy and the subsequent bowel surgery. On August 13, 2012, plaintiffs filed their HCLA suit, but that case was voluntarily dismissed on September 27, 2012. Plaintiffs then gave pre-suit notice again before re-filing suit on September 26, 2013 pursuant to the savings statute.

Defendants filed a motion to dismiss, asserting that the savings statute did not apply here because plaintiffs’ initial suit was not timely filed. According to defendants, the cause of action accrued on February 20, 2011, the day the decedent was admitted to the hospital and had the additional procedure, and therefore the suit had to be filed by at least June 20, 2012, which was 120 days after the procedure. The trial court agreed and dismissed the claim, and plaintiffs appealed.

Plaintiffs presented two arguments in support of tolling the statute of limitations on their initial case. First, they asserted that “genuine issues of material fact remain as to whether they knew or reasonably should have known of their cause of action on February 20, 2011.” Plaintiffs alleged that defendants fraudulently concealed decedent’s injuries, resulting in tolling of the statute of limitations. The Court rejected this argument, finding:

Plaintiffs discovered their cause of action within the one-year period of limitations as evidenced by their filing of pre-suit notice that alleged, in pertinent part, as follows:

 

  1. Dr. Leal negligently performed capsule endoscopy on Decedent, causing a small bowel obstruction; and

 

  1. [Defendant doctors] burned, lacerated, cut, or otherwise injured Decedent’s small intestine, resulting in a small bowel fistula, peritonitis, sepsis, and death on April 21, 2011.

 

Accordingly, Plaintiffs could not rely upon the discovery rule and were required to file suit no later than June 20, 2012, within 1 year and 120 days of the date of the surgery…

 

In addition to finding that the pre-suit notice showed that plaintiffs were aware of their cause of action, the Court found that “[t]he record in this case is simply devoid of any evidence establishing that Plaintiffs could not have discovered the injury or the identity of the wrongdoer despite reasonable care and diligence or that anyone concealed material information from them.” The Court noted that plaintiffs were given the requested medical records shortly after their request was submitted, and that there was no evidence that defendants “fraudulently concealed decedent’s injury.”

Second, Plaintiffs argued that “diligent procurement of a certificate of good faith tolls the statute of limitations until one year after the signing of the certificate.” The Court quickly rejected this argument, holding that it was “contrary to the statute and established case law.”

Because there was no reason for the statute of limitations to be tolled, plaintiffs’ first suit was filed outside the statute of limitations and the savings statute did not apply to the second suit. Dismissal was thus affirmed.

This case is a reminder to be prepared to fulfill all the statutory obligations when filing an HCLA case. Here, plaintiffs apparently managed to give proper pre-suit notice, but when the deadline for filing suit rolled around they did not have a signed certificate of good faith. The HCLA has a detailed procedure for filing a claim, and plaintiffs must be diligent in meeting all statutory requirements.