HCLA Plaintiff Cannot Get Benefit of 120-Day Extension When Filing Action Under Savings Statute

Where an HCLA plaintiff has previously given pre-suit notice, utilized the 120-day extension of the statute of limitations provided by Tenn. Code Ann. § 29-26-121, filed suit, voluntarily dismissed the action, then chosen to refile pursuant to the savings statute, that plaintiff is not entitled to rely on the 120-day extension when refiling.  Instead, the action must be re-filed before the expiration of the one-year period for filing granted under the savings statute.

In Richards v. Vanderbilt University Medical Center, No. M2022-00597-COA-R3-CV (Tenn. Ct. App. July 11, 2023), plaintiff filed an HCLA case in 2014. When filing that case, plaintiff gave defendant proper pre-suit notice and relied on the 120-day extension of the statute of limitations provided by Tenn. Code Ann. § 29-26-121(c). Plaintiff voluntarily dismissed that action on October 4, 2019, then gave pre-suit notice again and refiled his complaint on January 28, 2021. When refiling under the savings statute, plaintiff again relied on the 120-day statute of limitations extension provided by the HCLA.

Defendant filed a motion to dismiss, arguing that pursuant to the language of the statute, plaintiff was only entitled to utilize the 120-day extension in the original action. The trial court agreed, granting dismissal, and the Court of Appeals affirmed.

Tenn. Code Ann. § 29-26-121(c), which provides for the 120-day extension, states: “In no event shall this section operate to shorten or otherwise extend the statutes of limitations or repose appliable to any action asserting a claim for health care liability, nor shall more than one (1) extension be applicable to any provider.” While plaintiff relied on a Tennessee Supreme Court case stating that transitional plaintiffs who filed their first suit before enactment of the HCLA but then re-filed under the savings statute after the passage of the HCLA were entitled to utilize the 120-day extension, the defendant asserted that the plain language of the statute barred such a result in this case, and the Court of Appeals agreed with defendant. The Court held:

Because we conclude that the language forecloses the application of multiple 120-day extensions vis-à-vis a health care provider against whom a recovery is sought for health care liability, we hold that [plaintiff] was not entitled to rely on a second extension as to [defendant] so as to make the present litigation timely. Indeed, because [plaintiff] could not rely on a second statutory extension, and because he did not refile within a year of the prior voluntary dismissal, we conclude that the trial court did not err in dismissing the case, even assuming arguendo that the extension in Tennessee Code Annotated section 29-26-121(c) might otherwise potentially extend the refiling period in the saving statute for non-transitional plaintiffs.

Dismissal was accordingly affirmed.

Judge Stafford wrote a concurring opinion in this case, more heavily focusing on the language of the statute. Noting that requiring a plaintiff to adhere to pre-suit notice requirements without gaining the advantage of a statute of limitations extension may be a “harsh, unfair result,” he nonetheless concluded that “this situation is governed by a clear statutory directive prohibiting the use of the 120-day extension more than once as to any provider.” (internal citation omitted).

This is an important opinion, as it addresses for the first time whether plaintiffs re-filing under the savings statute can utilize the 120-day statute of limitations extension for a second time.  Thus, to comply with the notice provision and the savings statute, a plaintiff must give notice at least sixty days before refiling the complaint but refile before the end of the one-year granted by the savings statute.

This opinion was released 3.5 months after oral arguments in this case.


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