Where plaintiff nonsuits a complaint that contains medical malpractice (now known as health care liability action or “HCLA”) claims then later re-files a different complaint containing HCLA claims against the same defendant, she must give a new, separate pre-suit notice for the re-filed complaint.
In Byington v. Reaves, No. E2020-01211-COA-R3-CV (Tenn. Ct. App. April 20, 2021), plaintiff was treated by defendant for cancer on her nose. The treatment recommended by defendant eventually led to “removal of [plaintiff’s] right nostril, leaving her noticeably disfigured.” Plaintiff sent pre-suit notice of her HCLA claims on April 23, 2019 to defendant doctor and clinic, then filed a complaint the next day on April 24, 2019. This first complaint alleged that defendants fraudulently induced plaintiff into going through with the surgery, that there was a lack of informed consent due to the fraudulent inducement, that defendant doctor “failed to adhere to the standard of care,” and that defendant doctor did not tell plaintiff about alternative treatment options.
Defendants filed a motion to dismiss, asserting that plaintiff failed to comply with the HCLA by providing them pre-suit notice less than 60 days prior to filing her complaint, and that plaintiff failed to file a certificate of good faith. Plaintiff then voluntarily dismissed this first complaint.