The Tennessee Supreme Court has accepted Rule 11 review of Richards v. Vanderbilt University Medical Center, No. M2022-00597-COA-R3-CV, 2023 WL 4451631 (Tenn. Ct. App. July 11, 2023).
Plaintiff first filed suit on December 12, 2014, relying on the 120-extension of the statute of limitations provided by Tenn. Code Ann. Sec. 29-26-121. to commence an action that arose in August of 2013. That case was voluntarily dismissed without prejudice on October 4, 2019. Mandatory pre-suit notice was given again and suit was re-filed on January 28, 2021, with Plaintiff once again relying on the the 120-day extension of the statute of limitations referenced in the notice statute.
Vanderbilt moved to dismiss, arguing that Plaintiff was not entitled to rely on the 120-day extension of the statute of limitations on the second filing, and therefore the second case must be dismissed because it was not filed within one year of the date of the previous dismissal. Vanderbilt relied on this language in subsection (c) of the notice statute: “nor shall more than one (1) extension be applicable to any provider.”
Plaintiff argued that the above quoted language prohibits more than one extension per provider per action and, since the newly filed case was a second action, the 120-day extension was available to him.
All judges of the Court of Appeals affirmed the dismissal, with Judge Swafford concurrence noting that “Mr. Richards therefore joins the ranks of many plaintiffs in Tennessee whose claims have been felled by the procedural hurdles of the THCLA without consideration of their merits.” Id. at *7.
If the Court of Appeals decision is affirmed, a plaintiff will be able to rely on the 120-day extension of the statute of limitations only one in the entire life-cycle in an HCLA case. So, for example, if and HCLA case is timely-filed in reliance on the 120-day extension and then voluntarily dismissed, the case would have to re-filed before the one-year expiration of the savings statute. That means Plaintiff must give notice more than 61 days before the expiration of the savings statute. Why? Because Plaintiff must wait 60 days after giving notice to actually file the complaint.