Another Day, Another Tennessee Medical Malpractice Notice Case

Long story short, Givens v. Vanderbilt Univ. M2013-00226-COA-R3-CV (Tenn. Ct. App. Feb. 27, 2014), is a medical malpractice case that was dismissed without prejudice for failure to give pre-suit notice, since that is the appropriate remedy identified by the Tennessee Supreme Court in Stevens v. Hickman Community Health Care, Inc., – S.W.3d –, 2013 WL 6158000 (Tenn. Nov. 25, 2013).

Because Plaintiffs did not make any attempt to give pre-suit notice, the Court of Appeals rejected Plaintiffs’ claim that the failure to give notice should be excused for extraordinary cause under Tenn. Code Ann. Sec. 29-26-121(b). Plaintiffs previously used their savings statute by way of a voluntary nonsuit in the case, so the Court of Appeals acknowledged that dismissal without prejudice effectively makes the case time-barred.

The longer version is a painful tour down civil and appellate procedure, with multiple cases, dismissals, appeals, and remands. Suffice it to say that (based on prior appellate opinions applied to this case):

1)      Pre-suit notice is required before any nonsuited case is re-filed under the savings statute.

2)      For cases that were originally filed before the pre-suit notice requirement existed, the plaintiff must comply with valid notice before re-filing after any dismissal without prejudice.

3)      Filing suit without pre-suit notice cannot be fixed by sending notice the same day and later filing a separate lawsuit.

4)      Dismissal without prejudice is the appropriate remedy for a plaintiff’s failure to give notice.

So now what?  The Court said that "any further claims by Plaintiff will be time-barred." 

Sounds like the equivalent of a dismissal with prejudice to me.

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