The plaintiff originally filed against Joe and Samantha’s clients in 2015 without sending the defendants pre-suit notice as required by the Tennessee Healthcare Liability Law. Samantha and Joe promptly filed a Motion to Dismiss, and the plaintiff responded by voluntarily non-suiting the case.
Within the one-year saving statute, plaintiff refiled his action, along with his spouse who had not been a party to the originally filed suit. The plaintiffs sent a pre-suit notice to the defendants, and then argued to the trial court that they were relying upon the 120-day extension of the statue under Tennessee Code Annotated Section 29-26-121(c).
The pre-suit notice that the plaintiffs sent the defendants in the second action did not include the required medical authorizations under TCA 29-26-121(a)(2)E. However, when the plaintiffs filed the new Complaint, they represented to the Court that they had in fact sent such authorizations.
Joe and Samantha then filed their second Motion to Dismiss, arguing that the plaintiff in the original action failed to substantially comply with the notice requirements, and that the loss of consortium claim of his spouse was time-barred by the statute of limitations. The trial court granted the Motion to Dismiss.
The plaintiffs then appealed the trial court’s dismissal of the case. On the appeal, the Tennessee Court of Appeals affirmed the trial court’s dismissal of the spouse’s loss of consortium claim, but reversed and reinstated the claim of the original plaintiff, accepting the plaintiff’s representations as true that the authorizations had been sent to the defendant physicians. The Court of Appeals further held that the refiled Complaint was timely filed the 120-day extension of the statute of limitations.
Joe and Samantha then filed a Petition for Reconsideration, pointing out to the Court that even if the plaintiff’s representations were taken as true, the original plaintiff did not substantially comply with the notice requirements inasmuch as he did not provide the defendant physicians with medical authorizations that would allow them to obtain medical records from the healthcare provider listed in the notice letter as potential defendant.
The Court of Appeals then issued a new opinion affirming the trial court’s dismissal of the case.
It was a long procedural battle, but Joe and Samantha preserved. We congratulate them on the victory.