A recent decision from the Tennessee Court of Appeals confirmed that a plaintiff cannot rely on the 120-day extension allowed in TCA § 29-26-121( c ) more than once. On July 11, 2023, the Tennessee Court of Appeals issued its decision in Richards v. Vanderbilt University Medical Center. In this health care liability action, the issue before the appellate court was the interpretation of the following language in TCA § 29-26-121( c ): “In no event shall this section operate to shorten or otherwise extend the statutes of limitations or repose applicable to any action asserting a claim for health care liability, nor shall more than one (1) extension be applicable to any provider.”
The plaintiff filed his original action against Vanderbilt University Medical Center (“VUMC”) in 2014. When the complaint was filed, the plaintiff relied on the 120-day extension available under § 121( c ) for plaintiffs who provided proper pre-suit notice. In 2019, the plaintiff voluntarily dismissed the action. The plaintiff refiled the action in January 2021 and relied on the 120-day extension under § 121( c ) when he refiled the complaint. VUMC moved for dismissal of the plaintiff’s refiled action on the basis that it was time-barred. VUMC argued that, because the plaintiff relied on the 120-day extension when he filed the original complaint, he was not entitled to rely on the extension again when he refiled the complaint. VUMC argued that § 121( c ) entitles a plaintiff to only one 120-day extension. Because the plaintiff relied on the extension for a second time when he refiled the complaint, VUMC argued the plaintiff’s refiled complaint was untimely. The trial court agreed and dismissed the action.
The Tennessee Court of Appeals affirmed. Analyzing the plain language of the statute, the court held 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.”
The takeaway from Richards is that a plaintiff cannot rely on the 120-day extension more than once. If a plaintiff relies on the 120-day extension of the statute of limitations or repose when filing a health care liability action and later nonsuits the action, the plaintiff is not entitled to rely on the 120-extension again when the action is refiled. This is regardless of compliance with the pre-suit notice requirements of § 121. Of note, the court mentioned in a footnote that it was not opining on whether the saving statute could be extended by 120 days by operation of § 121( c ) for a plaintiff who did not rely on the extension when the original complaint was filed.